First Healthcare Compliance CONNECT September 2022

hold harmless or safe, harmless. So, let’s step back
for a moment. So typically, first, before you draft an
indemnification provision, you want to make sure
that you have an appreciation of a variety of different
state laws, whether it is derived from common law,
or whether it is like California set forth in a statute.
Typically, the way a lot of indemnification provisions
are written are to indemnify defend and hold
harmless. And if you don’t have that exact language,
depending on the jurisdiction that you’re in, you may
or may not have to defend someone and pay for
those costs.
You asked me how I would draft one of these. And
it’s so specific to the facts and circumstances
in general that I’m trepidatious just to throw out
any language surrounding that, but I will say that
it’s important to appreciate the significance of an
indemnification provision and some indemnification
provisions. I read and I’m like, “Oh my gosh, I would
not advise anyone to sign that it’s because it’s so
one sided, that only one party is held harmless.’ And
in the event of a breach regardless of whether or not
for example, a business associate cause the breach
some of these endemic indemnification provisions
read that the business associate is responsible for all
of the costs. So that should be one of the provisions
that any person reads very, very carefully, because
it could contradict with your other contracts that you
have in place.
B, you could be shouldering all of the liability even if
you’re not responsible for the breach or the bad act.
When I write them, I typically make them mutual that
if one is being indemnified, the other one’s going to
indemnify if they’re at fault. So mutual defend is the
key term that I discuss with the party. And typically,
the party will go back to the other entity if they are
in a negotiation. And oftentimes, they’ll say, “You
know what, we’ll just agree to be responsible for
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