Taking Legal Action If You Signed a Waiver Before a Medical Procedure

Posted in Medical Malpractice on October 7, 2020

Many patients who undergo medical procedures, such as risky surgeries, may sign a waiver or a release form prior to receiving treatment. These waivers explain the risks involved with the procedure, give you an opportunity to provide your informed consent, and release the hospital or doctor from liability in case you suffer an injury afterward. However, you can still hold a negligent professional responsible for malpractice under certain circumstances, even if you did sign a waiver.

Medical Waivers and Malpractice Liability

Before a medical procedure, you must provide your informed consent, meaning that you specifically give permission for the hospital and doctor to perform the said procedure. On the form, the healthcare facility will provide a description of the procedure and a list of potential complications. It is your healthcare provider’s responsibility to ensure you know about the potential risks of the procedure before you provide your consent.

While these forms can prevent medical malpractice claims, they can also provide a pathway to a lawsuit depending on the circumstances of the injury. These waivers do not release the hospital from liability if negligence occurs due to a preventable action or gross negligence.

When Can a Patient Sue with a Medical Waiver?

Since waivers should list all of the potential complications that could arise during your procedure, you typically cannot file a claim if you suffer an injury that the waiver specifies. However, you can file a claim over a known complication if any of the following circumstances apply to your case.

• The complication you suffered is a well-known risk and the waiver did not include it on the list of potential risks. In this situation, you did not provide your informed consent for the procedure because the doctor did not inform you of all the possible risks.
• The waiver failed to properly describe the complication you suffered. For example, the waiver may misstate the rate at which the complication may occur, or uses ambiguous language is too unclear for the average patient to comprehend.
• The facility or medical professional obtained your consent through pressure or force, or you were not mentally competent at the time you signed the form. To provide informed consent, you must be signing the waiver out of your own free will and you must be lucid enough to understand the terms of the document. If these circumstances do not apply, you could file a claim for a lack of informed consent.

In addition, you may be eligible for a medical malpractice claim if you suffered an injury due to a preventable action. For example, if an anesthesiologist administers the wrong dosage of anesthesia prior to a surgery and you suffer an injury, you can file a claim against him or her because this is not a known complication.

Waivers cannot release professionals from liability if they commit acts of gross negligence. This type of negligence refers to actions that showcase an indifference or recklessness toward the safety and well-being of others. For example, if a surgeon willfully ignores signs of distress during surgery and you develop brain damage as a result, you can hold him or her liable through a lawsuit.

If you believe you may have grounds for a medical malpractice claim, bring a copy of the waiver, your medical records, and any related documents to an attorney. Your lawyer can evaluate the language in the waiver and listen to your side of the story, helping you determine whether or not you have grounds for a medical malpractice claim.