You walk into the doctor’s office. They hand you a stack of paperwork. You sign it without really reading it. The nurse walks out and calls your name.
Then, something goes wrong. You become the victim of medical malpractice. You wonder if you can sue.
You start to wonder about that waiver you signed. Can you still sue for malpractice? Does the waiver make a difference? Our medical malpractice lawyers explain.
Can You Sue for Medical Malpractice If You Sign a Waiver?
Usually, you can still sue for medical malpractice if you sign a waiver. Most medical malpractice waivers are considered unenforceable for professional negligence because they are against public policy.
Negligence Waivers and Medical Malpractice
When you go to the doctor, they may ask you to sign a waiver. It may read something like:
“I understand the risk of complications from receiving medical care. I have discussed the possible risks and benefits withmy doctor. I assume all risks and agree to hold (Doctor and Doctor’s Office) harmless for any loss that may result from negligence and release all liability.”
How much of this waiver is enforceable?
Some of it is, and some of it is not.
Are Waivers of Medical Malpractice Claims Enforceable?
Waivers of medical malpractice claims are generally not enforceable. It is considered against public policy to require a patient to waive their legal right to pursue a medical malpractice claim as a condition of receiving medical care.
There are several reasons that negligence waivers are generally unenforceable in healthcare. Allowing medical malpractice claims encourages competent care. In addition, the patient and the healthcare provider are not in an equal bargaining position. The patient may feel they do not have a choice but to sign the document.
If you waive your right to a medical malpractice claim and you’re harmed by medical negligence, there’s a good chance that you can still pursue a claim. You must be able to prove all the elements of medical malpractice.
Is signing an informed consent document for medical care enforceable?
Part of the waiver may have to do with informed consent. Informed consent is your right to know the risks before you agree to a medical procedure. Telling you about the potential benefits and risks of a course of treatment is a part of providing adequate medical care. In fact, a lack of informed consent can be the basis for a medical malpractice claim.
Even if you sign an informed consent document, it’s still possible that you didn’t receive enough information to truly consent. After all, you don’t know what you don’t know. It’s still possible to bring a medical malpractice claim on the basis of lack of informed consent even though you signed the waiver.
However, you will have the added step of arguing against the waiver – that despite having signed it, you didn’t know what you were signing. You might argue that you didn’t have time to review it, that your questions weren’t answered or that you didn’t understand what questions to ask because of the nature of the procedure.
Case law and other legal authorities prohibiting the use of a medical malpractice waiver as a condition of care
Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963). A hospital may not require a release of liability before treatment. It’s against public interest to require a waiver.
Cudnik v. William Beaumont Hospital, 207 Mich. App. 378 (Mich. Ct. App. 1994). Exculpatory agreements between the parties in the context of medical care are invalid. Access to competent medical care is a matter of public interest.
Ash v. NY Univ. Dental Center, 564 N.Y.S.2d 308 (1990). There is an interest in encouraging care providers to offer certain procedures. However, that doesn’t justify allowing negligence waivers because victims need recourse when they are victims of medical malpractice.
Smith v. Hospital Authority, 287 S.E.2d 99 (Ga. Ct. App. 1981). Parties to medical care have unequal bargaining power. Medical care providers are professionals who must provide care with a reasonable degree of care, skill, and ability.
Lawyers for Medical Malpractice Claims Involving Waivers
If you signed a waiver, don’t assume you can’t bring a medical malpractice claim. At Bobby Jones Law, we explore every avenue to bring your case and uphold your rights. Contact us today for a review of your claim.