As liability issues move into the forefront of the business of yoga, teachers and studios need to start asking some tough questions about whether smart business practices are consistent with the spiritual tenets of yoga. This month we'll explore one of the most important issues facing professionals today: Can a yoga studio or yoga teacher meet liability concerns without compromising the intention to be fully present and offer wisdom and compassion within the practice?
Although there have been few, if any, reported lawsuits stemming from injuries in a yoga class, there have been some claims (See "Insight From Injury," May/June 2003). This makes the threat of liability, while small, nonetheless real. Still, liability concerns need not dominate, but rather can engage yoga studios and teachers in a thoughtful reflection of how to balance appropriate legal protection with the ethical and spiritual commitments yoga embodies.
One way to address liability concerns is by having students sign a consent form. Such a form discloses the risks and benefits of the yoga practice and allows the student to formally acknowledge his awareness of the disclosed risks.
Since yoga is, above all, a healing practice, we might take as our model the health care system. The law requires health care providers to provide "informed consent," disclosing to their patients the material benefits and risks of proposed treatments. Although yoga instructors may not literally fall within this legal rule, the notion of yoga as therapy suggests that disclosure of potential major risks is appropriate.
And there is another document that provides even greater protection to the studio or teacher: the liability waiver. The liability waiver goes beyond a mere disclosure of benefits and risks by asking the signer to assume legal responsibility for these risks and also to promise not to sue if an injury results. Hospitals and medical clinics have their patients sign consent forms and, in many cases, liability waiver ("exculpatory") clauses before surgery and even outpatient procedures; so, increasingly, do chiropractors, acupuncturists, and even massage therapists. But balanced against the possible legal protection a liability waiver may afford is the insertion of a written legal document into the relationship between student and yoga studio or teacher. Here's what you should know before you decide where you stand:
While informed consent is legally imperative in health care, signing a form will not prevent someone injured, angered, or offended from suing or later winning the lawsuit. Courts disallow the use of forms to avoid legal responsibility for truly negligent behavior. If an instructor, for example, has injured (or unnecessarily invaded) a student through an unnecessarily forceful (or intrusive) adjustment and the student makes a claim for negligence or battery, the form will not provide a defense. Given this knowledge, how can studios and teachers find the right balance? Here are some practical suggestions for reducing potential liability exposure while maintaining a safe and respectful studio environment.
1. Obtain insurance.Yoga teachers should obtain professional liability insurance, and yoga studios should obtain an umbrella insurance policy. Each should read their policy carefully to ensure they are receiving sufficient and appropriate coverage.
2. Ask about injuries. Teachers should ask students about injuries and conditions before beginning class and then caution their students accordingly. Failure to watch for contraindications (such as yoga students with neck injuries doing headstand) can signal negligence.
3. Mind students' limitations. Teachers should be mindful of students' pace and limitations so as not to create unnecessary injuries, discomfort, or an experience of invasion. Such mindfulness takes account of the classic legal definition of professional malpractice or negligence, which is failure to follow professional standards of care (or "due care;" "reasonable care under the circumstances"), thereby injuring the patient. Yoga teachers are legally, as well as ethically and professionally, obligated to take due care in their teaching and any adjustments.
4. Communicate mindfully. Many malpractice lawsuits stem from an injury and the perception of negligence, which can be exacerbated by frustration and anger around the provider's failure to adequately communicate with a concerned client. In other words, miscommunication between providers and patients accounts for many malpractice filings, and attention to communication and perception comprise a liability management strategy in any therapeutic practice. The physical and psychological intimacy of a yoga class suggests a need for particular vigilance around students' moment-to-moment receptivity to changing levels of contact, both physical and energetic, from the instructor.
The informed consent/liability waiver form, while offering no guarantee of freedom from liability or legal action, can add to these risk management tools when incorporated into the sign-up sheet for class. Make sure to mention the fact that in any physical activity, risk of serious physical injury is possible; that yoga is no substitute for medical diagnosis and treatment; that yoga practice and/or specific poses are not recommended for individuals with certain conditions (e.g., cardiac illness, later stages of pregnancy, post-surgery); and that the student assumes the risk of yoga practice and releases the teachers and studio from any liability claims.
Placing the risk disclosure and advisory language on the class sign-up sheet can help minimize disruption of the teacher-student relationship. Another option is to have each new yoga student sign such a form once, and then leave the regular sign-in sheet uncluttered. This avoids asking the student sign to the same language again and again, a practice that can sometimes flag the liability concern.
What if, despite a teacher's best intention and awareness, a student finishes a class injured or feeling violated? Again, good communication can be a key to limiting potential liability. It may be helpful, for example, to remain in an empathetic, listening mode, so that the kind of negative energy that leads to litigation may be safely discharged rather than fueled. Such a soft stance is no guarantee against suit, but, unlike denial, frozen fear, or a defensive shield, it may help re-engage the relationship instead of polarizing the dynamic.
In short, in addition to maintaining the highest ethical and professional standards, yoga studios and teachers can help reduce liability concerns by attending to students' experience throughout and working to dissolve unnecessary anger or misperception in case of an unintended, adverse encounter on the mat. This strategy should help manage liability concerns while maintaining sensitivity to the unique opportunities for connection within yoga teaching and practice.
Michael H. Cohen, JD, MBA publishes the Complementary and Alternative Medicine Law Blog (www.camlawblog.com), and currently serves as Director of Legal Programs at the Harvard Medical School Osher Institute.
The materials in this website/e-newsletter have been prepared by Michael H. Cohen, JD and Yoga Journal for informational purposes only and are not legal opinion or advice. Online readers should not act upon this information without seeking professional legal counsel.