Question: We are in the process of rewriting our Medical Staff Bylaws and other documents and were considering including a section on waiver of claims by the individual medical staff applicants.

Answer:  We recommend including release and immunity language in the Bylaws or associated policies to protect the hospital and those individuals participating in the evaluation of applications and associated peer review activities to ensure that rigorous and thorough examination not only occurs, but is encouraged.  The release and immunity language should be broad and begin by stating “to the fullest extent permitted by law, the applicant releases from any and all liability, extends immunity to, and agrees not to sue the Hospital….”  Courts have looked favorably on these protections written into Bylaws and found such releases binding on medical staff applicants and appointees who have sued hospitals and others for issues arising out of the examination of an application or a practitioner’s clinical practice.

For example, in a recent case, Brintley v. St. Mary Mercy Hospital, cited above, the court observed:

The language of the release in the Waiver of Claims provision in the Medical Staff Bylaws is clear and unambiguous.  Numerous courts have found such releases in medical staff bylaws binding on plaintiffs who…upon applying for clinical staff privileges, signed an acknowledgment agreeing to be bound by the terms and provisions of the Bylaws.

***

Here, there is a clear, unambiguous waiver of ‘any claim, present or future’.  Plaintiff…is an educated woman and an experienced healthcare professional.  She acknowledged receipt of a copy of the Bylaws and admitted in writing when she applied for clinical privileges at [the Hospital] that she ‘studied the contents carefully and agree[d] to be bound by them’ upon becoming a member of the medical staff.

If you do plan to include release and immunity provisions, ensure that they are clearly and broadly written so that the protections are available to the fullest extent permitted by the law.  Also require that medical staff applicants sign an acknowledgment form, or the Bylaws themselves, stating that they received the document, read it, and agree to be bound by it.