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The ever-increasing demand for healthcare services has brought a boom in construction. These projects, including new hospitals and specialty care centers and expansions of existing facilities and systems, present a distinct mix of operational pressure and legal complexity. These projects often involve complex phasing, tight schedules, demanding specifications, and work that can impact ongoing healthcare operations. The legal risks are not confined to typical construction disputes and handling them effectively requires careful consideration and planning relative to how the contracts are structured and administered.

Based on common issues seen across a variety of healthcare construction projects, the following 10 areas are where an ounce of prevention can yield a pound of cure for owners.

1. Hidden assumptions and clarifications

Contractor proposals frequently include assumptions, clarifications, or exclusions, often in the form of an 鈥淎ssumptions and Clarifications鈥� list or document. These may be incorporated into the contract, sometimes as exhibits, and can override negotiated contract terms if not carefully reviewed and aligned.

Typical risk areas include: overuse of allowances, including critical scope items; shift of permit or insurance responsibility to the owner; shift of risk for material price increases; allocation of risk for site conditions (e.g., groundwater, dewatering, utility conflicts); and gaps between subcontractor scopes.

Protection strategies include: requiring early review by the full development team, including the owner鈥檚 representative; avoiding incorporation of these documents into the contract by reference where possible; and if incorporated, confirming provisions establishing the order of precedence among the various contract documents to match the intended risk allocation.

2. Consequential and liquidated damages

Healthcare projects often involve significant downstream impacts such as loss of use, delayed occupancy, or financing consequences. Most construction contracts include mutual waivers of these sorts of consequential damages, typically accompanied by liquidated damages for delays.聽 For the owner, the goal is to ensure there are meaningful remedies if the project is delayed.

Key considerations are: identifying what damages are being waived (for both owner and contractor); carefully drafting liquidated damages provisions to ensure enforceability; evaluating whether liquidated damages provide an adequate remedy; and considering carve-outs for insurance, indemnity, and misconduct.

3. Design errors and risk allocation

Design gaps and coordination failures remain common sources of disputes in healthcare construction. When contractors build to owner-provided plans, the owner may effectively bear responsibility for design adequacy. When there are design problems, the owner can end up in the middle of a 鈥渢wo-front鈥� dispute against both the contractor and the designer.

Risk management includes: reviewing liability limitation provisions in design agreements; confirming professional liability insurance coverage and limits; avoiding overly broad owner representations or warranties; and preserving rights against designers early where issues emerge.

4. Delays and force majeure

Force majeure delays 鈥� that is, delays outside of either party鈥檚 control鈥攁re common in construction, and recent issues ranging from supply chain instability to labor shortages have highlighted the importance of carefully negotiating and clearly drafting provisions to address these delays. Ambiguity often causes disputes when projects are disrupted.

Best practices include: limiting relief to schedule extensions (鈥渢ime, not money鈥�) where appropriate; clearly defining qualifying events to reduce ambiguity; enforcing notice requirements strictly; and using preconstruction to identify long-lead materials and mitigate delay risk.

5. Changes and claims management

Construction contracts anticipate change. Change orders and construction change directives allow work to proceed while pricing and schedule impacts are resolved, but they often generate disputes if not managed carefully. Unresolved changes are a leading driver of claims and cost overruns.

To manage this process effectively: define the method for equitable adjustments during contract negotiation; seek agreement on scope and pricing contemporaneously where possible; require contractors to continue performance despite disputes; and understand that executed change orders may operate as 鈥渁ccord and satisfaction.鈥�

6. Notice and dispute procedures

Contractual notice provisions are critical for keeping owners informed about issues that arise and claims as they develop. They can also be key owner protections, as a contractor鈥檚 failure to comply with notice requirements can result in waiver of claims.

To reduce risk: draft practical and clear notice provisions; train project teams on compliance requirements; monitor notice obligations throughout a project鈥檚 life cycle; and document any intentional deviations from contractual procedures.

7. Warranty and closeout

Healthcare facilities usually incorporate highly integrated systems and involve extremely sensitive operations, so it鈥檚 critical for owners to have warranty protection for both construction work and installed products. Proper handling of warranty obligations and documentation during construction and at project closeout is important.

Key considerations include: negotiating warranty scope and duration carefully; considering the difference between correction-of-work obligations and warranty obligations; ensuring both correction and warranty obligations flow down to subcontractors; requiring full warranty documentation as part of close-out deliverables; and tracking timelines for asserting warranty claims.

8. Liens and payment risk

Contractors, subcontractors, and even designers may assert liens if payment disputes arise. These claims can complicate financing and delay completion. Early attention to lien risk helps prevent escalation into more costly disputes.

Effective risk management includes: requiring lien waivers with each payment application; verifying receipt before releasing funds; considering joint check arrangements; and acting promptly to address invalid or excessive liens.

9. Insurance coverage gaps

Failure to procure required insurance can shift substantial risk back to the owner. To ensure that insurable risks are properly allocated as the parties contemplate, it is important to pay close attention to the insurance requirements. They should be realistic, enforceable, and actively verified.

Best practices include: engaging insurance advisors before finalizing contract requirements; confirming what coverage is commercially available; reviewing certificates, endorsements, and policy terms prior to construction; and following up during the project to ensure ongoing compliance.

10. Cumulative impact claims

Cumulative impact or 鈥渞ipple effect鈥� claims allege lost productivity resulting from multiple project changes. These claims are often difficult to quantify and can significantly increase project costs. They are best addressed through disciplined project administration and documentation.

To manage exposure: include strong waiver language in change orders; avoid broad reservation-of-rights provisions; maintain active owner involvement throughout the project; and monitor staffing, sequencing and project coordination in real time.

Conclusion

Across healthcare construction projects, legal risk rarely arises from a single issue. Instead, it develops through the interaction of contract language, project execution, and evolving conditions over time. By engaging early and carefully, insisting on clarity in contract documents, and remaining actively involved throughout project delivery, counsel can significantly reduce disputes and improve outcomes.

Evan Brown is a Stoel Rives LLP associate and a member of the construction and design group in the firm鈥檚 Seattle office. Contact him at 206-386-7512 or聽[email protected].

Bart Reed is a Stoel Rives LLP partner and a member of the construction and design group in the firm鈥檚 Seattle office. Contact him at 206-386-7568 or聽[email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither of the authors nor the 91视频 guarantees the accuracy or completeness of any information published herein.