An exculpatory clause comes from the latin “culpa” which means fault or blame. It is thus that an exculpatory clause is present in an agreement in order to absolve a party from blame. In personal injury law, when an exculpatory clause is signed, the ability to sue for negligence or medical malpractice is limited. There is no federal law which regulates exculpatory clauses in personal injury law – this is left up to the jurisdiction of the state appellate court. The highest state courts regulate the validity of an exculpatory clause. It is thus that an exculpatory clause is seen generally as a safety measure for medical institutions in terms of medical malpractice and liability.
Generally, an Exculpatory clause contains wording that acknowledges a patient’s understanding that the facility, institution or medical professional performing treatment is not responsible for any harm or negligence that befalls a patient as result of contract of treatment. It is thus the discretion and duty of the state courts and state government to regulate the personal injury law with regard to exculpatory clauses. Typically an exculpatory clause is included with any personal information that is signed over either in triage or reception before the initial doctor/patient contact or examination. Exculpatory clauses, despite claiming to absolve the treating party of any responsibility for harm that befalls the patient, are generally seen only as safety nets for medical professionals.
For example, a New Jersey appellate court ruled that an exculpatory clause only waives a patient’s right to sue for normal negligence charges. Any gross negligence on behalf of a medical professional or medical facility still may be sued for as medical malpractice. Any deliberate, erroneous or reckless conduct on behalf of the treating physician or facility personnel which harms the patient is medical malpractice. Conversely, failure to maintain the facility to a reasonable standard is also still liable as medical malpractice under personal injury law. Normal negligence, such as the unforeseen malfunctioning of hospital equipment, is not covered as medical malpractice. If it can be proven, however, that the malfunction was foreseeable and resultant from neglect or failure to maintain a piece of hospital equipment, then the incident will be treated as medical malpractice under personal injury law.