Expert Mentor Session Part 2: Can a Disclaimer Help Protect My Business?
[Sunny Smith]: Michael H. Cohen is the founder of Cohen Healthcare Law Group.
He’s a former professor at Harvard medical school and a Harvard T.H. Chan School of Public Health. The author of over a hundred articles in law reviews and peer reviewed journals, as well as six books, including four published by an academic presses like Johns Hopkins University Press. Michael’s a thought leader who pioneers legal strategies and solutions for clients in traditional and emerging health and wellness markets. In doing so, he advises many physician clients in a variety of businesses and practices. Michael and his attorney team have a wide range of knowledge and he’s glad to have this chance to share some of it with us today.
How do we protect ourselves doing coaching when we act as physicians?
[Michael H. Cohen]: Nothing’s that simple.
It would be great if you could have a piece of paper. If I could take my immune supplements and then now I know I’m guaranteed, it would be great. It’d be great if my doctor would sign a guarantee, that’d be wonderful, but it’s not going to happen. You do the best you can. And that’s the same thing. You filter out the risks that you can.
A note there, a very specific note about disclaimers, disclaimers are good. It’s better to have them than not have them. Better to have it and not need it than to need it and not have it.
Are you saying that a disclaimer doesn’t necessarily protect us completely?
[Michael H. Cohen]: There’s no magic bullet. There’s risk mitigation.
We really deal in risk mitigation. I have a video that I made about answers because people sometimes come and they say, “Will you …” Right? I had one client and they said, “You said on your website.” Do you ever have patients that are just not happy with you no matter how positive and sunny you are, right?
They’re just not happy. “You said on your website that you provide legal strategies and solutions.” Yes, that’s marketing. And we do, we provide legal strategies and solutions, but we’re not like, what is it? Booker’s brain? I don’t know. I can’t remember. But we don’t have the be all and end all ultimate magic potion that’s going to make everything go away. We have risk, we have risk mitigation, but we have risk mitigation strategies.
So going back to health coaching, I think the disclaimer tries to mitigate and you try to say, “I’m in a non-medical role right now.” Just like you can say, “I’m in a specialist role and I’m not taking responsibility for primary care.” Right? You do that.
So similarly you say, “I’m not in that professional role.” But I think that you have to be careful that people don’t misunderstand. And then the challenge is, the challenge with healthcare law, I think healthcare law is different than other types of law because in other types of law, people are worried about getting sued.
That’s what they’re worried about. And if you get sued, you have to get insurance. Hopefully the insurance covers you. I mean, it’s dreadful, but you have the insurance. But the bigger issue is the regulators because if the rules say TSN, thou shall not and you do it, and you say …
By the way, when I really enjoy a call, I use a lot of metaphors. So I hope I’m not saying anything incorrect, I’m just taking it straight from my criminal law class, first year of law school.
The serpent said, “You didn’t say not to eat from the tree, you just said don’t touch it or something like that.” Right? It’s like, “You didn’t say don’t do health coaching, you said don’t practice medicine and I’m not practicing medicine.” So the point is, even going back to ancient literature, right? There’s always interpretation of what is the rule, what’s the rule, right? And somebody can disagree with your rule.
I probably totally garbled that in an attempt to be fancy because I saw the nod in your head. It was kind of like, yes and then it went no. And then it was like, “I don’t know what he split the heck he’s talking about.” So anyway, forget-
[Sunny Smith]: Well, I think the useful point here that I’m hearing, for instance, is like I come to you and I’m like, “Okay, I’m a doctor, but I want these people to be clear that I’m not their doctor. I’m not acting as their doctor.” And you say, “Okay, have them sign this disclaimer that says although you are a doctor, you are not acting as their doctor in this role.” If they sign that, that’s called risk mitigation. It doesn’t guarantee that they can’t come back and say … Of course, anyone can sue you for anything is kind of what you’re saying. Yes, they can sue you, but you’re mitigating the risk by having a document that says, you understood I wasn’t being your doctor. Is that kind of-
[Michael H. Cohen]: I want to say this is why you’re a terrific coach, because I just said something 10 times more complicated than it needs to be and got in my own way and you said it so much better. So thank you.
[Sunny Smith]: There’s no 100%, you’re 100% guaranteed, everything is fine. That’s why we also have LLCs, right? That’s why we have multiple layers. That’s why we have insurance. That’s why we have-
[Michael H. Cohen]: Yeah. We have multiple layers.
And that’s why it’s really synergistic. It’s a synergistic proprietary blend here of issue spotting, risk assessment, risk mitigation. And what I was saying before is that it’s not just about getting sued because a disclaimer might be a defense to getting sued.
The defense is I said what I said and you signed it.
How could I have said it any better?
I said it, you got it. You agreed. And this is our contract, you agreed.
The contract is I say this, you say that, we shake hands. That’s it. It’s a contract. So you can’t sue me because this is what we agreed. I’m not responsible for that. I’m responsible for this. That’s the theory. That’s the theory of law. We’re getting out of tort law. Tort is when things are done negligently. That’s tort law. It’s fault-based, outside of contract. Contract, there’s an agreement.
So the legal theory behind the disclaimer is we’re clarifying the contract here, but there’s this other set of rules called you can’t practice medicine without a license. So that’s very binary. You’re practicing medicine or you’re not. So now you’re doing something else.
And that’s why I was going back to thee thou shalt not because you didn’t say you can’t practice medicine, but you can do health coaching, right? You didn’t specify. The law doesn’t tell you everything. All right. Well, you can’t touch the tree of life, but what if the fruit just falls from the ground, I pick it up? Well, you didn’t cover that, right? And so that’s why we have … Just going back into my background.
I got into law because law is there to put in rules so as to prevent the worst of human behavior, but you can’t regulate every aspect of human existence. You’d go nuts or you’d be OCD, right? So the law just tells you, big, bold, you shall not do this. Very rarely does it tell you, you may do this. It says, thou shall not. It doesn’t say thou mayeth.
So the art of being a lawyer is saying, “Clients are coming all day with questions like this.” So you’re saying that if you this, are you really saying that, or are you saying this? The law doesn’t tell you that, that’s what you have to interpret. And that’s applying the rule to the facts.
I would definitely recommend. I needed direction regarding the FDA and how the rules would affect my business. Responsive, accessible, and knowledgeable.
Impressive credentials are only overshadowed by their clear awareness of practical strategies to help Physicians navigate modern healthcare and achieve successful outcomes.