Vodopest v. MacGregor
913 P.2d 779, 128 Wash. 2d 840 (1996)
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Rule of Law:
A preinjury release agreement that purports to exempt a medical researcher from liability for their own negligence during the course of a medical research project involving human subjects is unenforceable because it violates public policy.
Facts:
- Rosemary MacGregor, a nurse, published articles recruiting participants for a "research trek" to the Himalayas to test a breathing technique designed to alleviate high altitude sickness.
- Patricia Vodopest, also a nurse, joined the trek, understanding she was participating as a research subject in a medical study.
- MacGregor required Vodopest to sign a "Release from Liability and Indemnity Agreement" releasing MacGregor from all liability connected with the trek.
- This release form was part of a research proposal submitted to the University of Washington's Human Subjects Review Committee, which rejected the form as invalid because federal regulations prohibit such exculpatory clauses in human subject research.
- MacGregor did not inform Vodopest or other participants that the university had invalidated the release form.
- During the trek, Vodopest began exhibiting severe symptoms of high altitude sickness.
- Instead of advising descent, MacGregor, who was leading the research, encouraged Vodopest to continue ascending and to rely on the experimental breathing technique to alleviate her symptoms.
- Vodopest's condition worsened significantly, and she developed life-threatening cerebral edema, resulting in permanent brain damage.
Procedural Posture:
- Patricia Vodopest sued Rosemary MacGregor in a Washington state trial court for negligence and gross negligence.
- MacGregor filed a motion for summary judgment, arguing the signed release form barred the negligence claim.
- The trial court granted summary judgment for MacGregor on the negligence claim, dismissing it, but allowed the gross negligence claim to proceed to trial.
- A jury found in favor of MacGregor on the gross negligence claim.
- Vodopest, as appellant, appealed the summary judgment dismissal of her negligence claim to the Washington Court of Appeals.
- The Court of Appeals, in a divided decision, affirmed the trial court's dismissal, siding with MacGregor, the appellee.
- Vodopest then appealed to the Supreme Court of Washington.
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Issue:
Does a preinjury release that bars a cause of action for negligence violate public policy when it is signed in the context of a medical research project involving human subjects?
Opinions:
Majority - Guy, J.
Yes, a preinjury release that bars a cause of action for negligence violates public policy when signed in the context of medical research involving human subjects. While such releases are generally enforceable for high-risk recreational activities, public policy prohibits their use in the context of medical research. The court applied the six-factor test from Tunkl, as adopted in Wagenblast, and found that several factors militated against enforcing the release. Specifically, medical research is a type of activity suitable for public regulation, it is of great importance to the public, and the researcher exercises significant control over the human subject, who is placed at risk of the researcher's carelessness. Federal regulations explicitly prohibit the use of exculpatory language in human subject research, which is strong evidence of this public policy. Therefore, to the extent the release attempts to shield MacGregor from liability for negligence committed in furtherance of her medical research, it is unenforceable.
Concurring - Talmadge, J.
Yes, the release is unenforceable in this context, but the court's analytical framework should be clarified. The release Vodopest signed covered the inherent risks of a high-altitude trek, not negligence in the diagnosis and treatment of a medical condition. Vodopest's injuries allegedly resulted from MacGregor's negligent medical advice, which falls outside the scope of the agreement. More broadly, the court should adopt a clearer two-step analysis for pre-injury releases, separating procedural fairness (was the bargaining process fair?) from substantive fairness (does the agreement's substance violate public policy?). For the substantive analysis, the court should adopt the criteria from the Restatement (Second) of Contracts § 195, which provides a more structured approach to identifying public policy violations.
Analysis:
This decision carves out a significant public policy exception to the general enforceability of preinjury liability waivers. It establishes that medical researchers cannot contractually immunize themselves from their own negligence when conducting research on human subjects. The ruling brings Washington state law in line with federal regulations and reinforces the heightened duty of care and fiduciary-like responsibility that researchers owe to research participants. Future cases will likely distinguish between injuries arising from the inherent risks of an underlying activity (like mountain climbing) and those arising from the negligent conduct of the research itself.
