Standard Form Contracts in the Health Sector: The Plague of Exclusion Clauses and Unconscionability

Abstract

The health sector is conventionally regarded as an important facet of human development and every person’s life is invariably linked to it. In the performance of its services, hospitals usually require the patients or their kin to sign an undertaking, usually in the form of a ‘Standard Form Contract’. Such contracts are unilaterally set by the hospitals wherein the patient has no bargaining power vis-à-vis the substance of the contract, regardless of how unfair the terms might be. Albeit such unfair terms are usually considered within the domain of consumer law in India, this paper tries to approach this issue through a contractual lens. Such hospitals often incorporate sweeping exclusion clauses in their contracts which exclude them from all liability. This paper problematises the issue with such unilaterally set contracts while bearing in mind the nature of the medical practice. It borrows from the jurisprudence of the United States, in terms of how they have dealt with such broad exclusion clauses, and submits remedies in contract law to tackle this issue.