As a writer of health and medical content, you’re working in a fairly high-risk industry.
Sometimes, you’re going to be writing about serious diseases, conditions, drugs and health topics. Other times you may be required to write health advice on behalf of your client or employers.
Obviously it’s very important to write high-quality content that’s as accurate as possible so you don’t mislead your readers.
Yet there are also legal issues that can arise from the medical writing work you do – anything from breaching the terms of your contract to providing incorrect nutritional advice.
That’s why professional indemnity insurance is often recommended for writers who work in the medical industry.
Who is legally responsible for the content you write?
Don’t assume that you’re not responsible for your content after you’ve handed it over to your client or publisher.
If a contract that you sign explicitly states that liability sits with you, then you very well could be legally responsible. Some clients or publishers might even hold you responsible after the content has been edited.
That’s why it’s important to have clearly-defined terms so that both parties are aware of what’s being agreed to before any work is undertaken.
I recently had to deal with a very scary looking indemnity clause that stated I was to assume all responsibility, directly and indirectly, for the content I produced, forever.
Obviously I was very hesitant to sign something like this and I decided it was a “make-or-break” clause – even if that meant losing a very lucrative contract. I felt the risk was far too great – particularly given the subject matter was a very serious medical topic. So I negotiated the terms. Don’t be afraid to ask for the terms to be changed in your favour (and you should never be bullied into agreeing to a liability term you’re not comfortable with).
Who should assume liability for the content?
In an ideal world, you provide well-researched and accurate writing, leaving publishers to take ultimate responsibility and ownership over their content.
However – there are no “rules” when it comes to ownership.
That’s why having a contract that explicitly states the liability is assigned to the publisher, client or business – as opposed to the writer – is so important when you’re working with both new and existing clients.
Ultimately, someone has to be liable in the unlikely event that a reader has an issue with your content – or worse, if something serious happens as a direct or indirect result of the work you produced.
What is liability?
Liability is the state of being “legally responsibly”. This means you’re responsible if someone wants to sue you based on, say, an action that someone took as a direct or indirect result of the service you provided – ie the medical content you supplied, or a consulting service you delivered.
What is professional indemnity insurance?
In Australia, the type of insurance generally recommended for writers is known as professional indemnity insurance.
Professional indemnity insurance helps you to cover the cost of litigation. The claims could come from:
- not achieving the results of a contract
- not delivering the content on time
- giving incorrect nutritional or medical advice
Sometimes, professional associations offer industry-specific professional indemnity insurance – so check with your national medical writing association.
Do medical writers actually need professional indemnity insurance?
If you have a solid contract that assigns all liability to your client or publisher, then why would you need insurance?
Well, contracts alone may not hold up in court – nor do they stop people suing you. That’s why lawyers often recommend you have indemnity insurance as well as a protective contract.
Some writers I know do have professional indemnity insurance, while others consider it to be “overkill”. In Health Writer Hub’s Business Cost Survey, more than half of writers did not have insurance.
Unfortunately, this type of insurance doesn’t come cheap – here in Australia it’s around $1000 year. The cost is offputting – particularly when you’re just getting started. Ultimately, the risk and decision whether to purchase professional indemnity insurance is yours – again, there are no “rules”.
Some clients will request that you purchase professional indemnity insurance before you work with them. You’ll then need to weigh up how badly you want the work and whether it’s worth your while to purchase the insurance.
Reducing your risk
Seek legal advice
Obviously I’m no lawyer (though having recently been quoted more than $300/hour by one lawyer, I am seriously considering retraining!).
So my first and most essential piece of advice for anyone reading this who is concerned about liability is to get legal advice from a qualified lawyer.
Your lawyer can advise you on the best course of action for your unique circumstance.
Get your contracts checked by a lawyer
Yes, lawyers are expensive – but knowing that a legal expert has ok’d your personal contract should give you peace of mind.
Being a freelance health and medical writer comes with a level of risk that employed medical writers don’t have. That’s just one of the few cons of working for yourself, running your own business and being your own boss.
Be aware of professional indemnity and liability clauses in your clients’ contracts
Obviously you know what goes in your own contract, but many clients have their own contracts. If your client is supplying the contract, be sure to check it for liability claims. If there are none, try and get one added so you’re both clear on who is legally responsible.
Write high-quality content
If you make the effort to write well researched, high-quality content, you are significantly reducing your risk of producing anything that has the potential to incur your client any loss.
Work with high-quality clients
Don’t take on dubious clients who are trying to encourage you to write shonky health content.
Be aware of regulations
Know your local regulations when it comes to writing health copy – particularly if you’re writing copy on behalf of doctors and qualified health professionals.
What about employed writers?
Usually, as an employed medical writer working for a health-related brand or business, you are protected by the company you work for. Your employer should have internal approval processes so that a variety of people verify the content before it is published. While it seems unlikely that you could be sued by your own employer for negligence, you should be aware of their processes should this happen.
While there are never any guarantees that you’ll be 100% safe, I believe there are a few steps you can take to reduce your risk of being liable for any issues arising from your content:
- Always assign indemnity to the client or publisher
- Purchase professional indemnity insurance
- Write high-quality content
- Meet your contractual obligations
- Work with high-quality clients
Do you have professional indemnity insurance or do you consider it to be overkill? How do you reduce your risk? Share your comments below.
Disclaimer: I am not a lawyer and this isn’t legal advice. I really do encourage you to get personalised legal advice on this topic.