Sample Hospital Indemnification/Hold Harmless Language for ROP Services

OPTIONS TO CONSIDER

1. HOLD HARMLESS/INDEMNIFICATION CLAUSE. Following this paragraph is sample hold harmless/indemnification language you may want to consider inserting in your contract or Services Agreement with the hospital.

Hospital agrees to indemnify and hold free and harmless Physician from and against all manner of loss, damage and liability (including court costs and attorney's fees) arising from any claim made against Physician or loss incurred by Physician as a result of or in any way arising from, relating to, or connected with Physician's obligations identified within this Services Agreement. This hold harmless and indemnification obligation shall survive any termination of this Services Agreement.

Physician shall, as a condition precedent to the right to be indemnified under this Agreement, give Hospital notice in writing as soon as practicable of the commencement or the threatened commencement of any claim against Physician which indemnification will or could be sought under this Agreement. [Optional: Hospital shall conduct the defense of the claim or litigation resulting from it.*] Physician shall cooperate and give Hospital any information regarding the claim or threatened claim as Hospital may reasonably require and as shall be within Physician's power.

* You may wish to request that the hospital not only hold you harmless and indemnify you, but also conduct your defense. However, the hospital may then want to solely direct the defense of your case. If you have your professional liability insurance with OMIC and if OMIC covers the claim, OMIC, too, would want to direct the defense of your case. Thus, you may want to omit this defense language or insert a provision requiring the hospital to cooperate with your professional liability insurance carrier.

2. HOLD HARMLESS/INDEMNIFICATION CLAUSE WITH ROP PROTOCOL. The below sample hold harmless/indemnification language mirrors that provided above, but also includes a sample ROP Protocol.

Hospital agrees to indemnify and hold free and harmless Physician from and against all manner of loss, damage and liability (including court costs and attorney's fees) arising from any claim made against Physician or loss incurred by Physician as a result of or in any way arising from, relating to, or connected with Physician's obligations identified within this Services Agreement and/or alleged violation of the ROP protocol by any health care provider at Hospital. The ROP protocol includes, but is not limited to, the following:

1. The Attending Neonatologist is responsible:



1. for identifying all eligible infants for ROP examinations, and ordering appropriate timing of all consultations and follow-up consultations for the patient.
2. for informing the ophthalmologist should any medical contraindication for dilation or ophthalmoscopic examination develop.
3. for informing the patient's family if prethreshold or threshold ROP develops.
4. for obtaining an ROP Discharge Agreement Form signed by a neonatologist, ophthalmologist, and parent/legal guardian, prior to discharging or transferring the patient to another facility. No patient can be discharged without this Form and a follow-up appointment. One copy of this Form must be retained in the chart, one copy must be given to the parent/legal guardian of the patient, one copy must be mailed to the examining ophthalmologist, and one copy must be mailed to the follow-up ophthalmologist.
5. for discussing the need for follow-up appointment in six months if patient has mature retina and is not at risk for ROP at time of discharge or transfer to another facility.



2. No patient can be discharged from the hospital with ROP stage II or greater without the consulting ophthalmologist's consent.



3. Hospital agrees to call the follow-up ophthalmologist to be sure patient has presented for examination appropriately. If patient has not presented, hospital agrees to:



1. call patient's family to reschedule patient's exam within 3 days and explain importance and risks of follow-up of ROP.
2. if patient still does not present for examination in three days or if Hospital is unable to contact patient's family, make a second call and send a registered letter (return signed receipt) to the patient's family stating the need for follow-up examination. The letter must explain that if the patient does not present for examination in 3 days, child protective services will be notified.
3. if patient does not present in the 3 days stipulated above (B), Hospital agrees to call child protective services.

This hold harmless and indemnification obligation shall survive any termination of this Services Agreement.

Physician shall, as a condition precedent to the right to be indemnified under this Agreement, give Hospital notice in writing as soon as practicable of the commencement or the threatened commencement of any claim against Physician which indemnification will or could be sought under this Agreement. [Optional: Hospital shall conduct the defense of the claim or litigation resulting from it.] Physician shall cooperate and give Hospital any information regarding the claim or threatened claim as Hospital may reasonably require and as shall be within Physician's power.

Sharing or Shifting Liability for ROP Services

OPTIONS TO CONSIDER

1. INDEMNIFICATION. The Hospital could agree to indemnify you for any liability you incur arising from your screening for and/or treatment of ROP in the NICU at the Hospital. See Sample Hospital Indemnification/Hold Harmless Language for ROP Services below.

2. ADDITIONAL INSURANCE. There are several types of additional insurance you and the Hospital might negotiate. The Hospital might propose to provide you with primary, contributory, or excess insurance. This Hospital insurance would coincide with your OMIC insurance. Your OMIC policy is a primary policy and is not intended to be excess of any other policy. Thus, if you tender a covered claim under OMIC's policy, we have the right and duty to defend you. If you negotiate a primary or contributory policy with the Hospital, then OMIC and the Hospital would both likely share and cooperate in your defense and payment of any (covered) indemnity. (The policy describes how losses are apportioned when your OMIC policy and other insurance apply to the loss on the same basis). However, if you negotiate an excess policy with the Hospital, the Hospital would not generally participate in the defense of the claim unless it is probable that you will exceed your primary limits with OMIC; but the excess limits would be available if a judgment against you exceeded your policy limits with OMIC. Keep in mind that all determinations of coverage are case specific. The facts surrounding a particular tendered claim would be determinative of how that claim would be administered and what ultimate indemnification would be provided under your OMIC policy or any other insurance policy.

3. CONTRIBUTORY PAYMENT OF PREMIUM. Hospitals are increasingly assisting physicians in paying their medical malpractice premiums in order to ensure that physicians will be able to provide certain services at their facilities. As an OMIC insured, one option for you is to raise your professional liability limits and ask the hospital to reimburse you for the difference in premium. You should seek legal counsel when entering into these arrangements to ensure compliance with federal and state laws regulating hospital payments to physicians.

This memorandum provides general information on insurance and medico-legal issues and does not constitute legal advice. The information provided is not meant to be a modification of the terms and conditions of your OMIC insurance policy. We recommend that you consult your personal attorney regarding any agreement you enter into with the Hospital.