After a medical procedure goes wrong, what are the patient’s legal rights? In general, the injury victim can still sue for malpractice even if they signed a waiver. A waiver may prevent filing a claim for some types of injuries but a waiver may not cover medical negligence, even if the doctor claims it does. Talk to an experienced medical malpractice attorney about your rights and legal options after a failed medical procedure.
Medical Malpractice and Waivers
When going in for a medical procedure, the receptionist or medical assistant may hand you a number of forms to fill out and sign. This may include standard intake forms about your medical history, allergies, and medications. The forms may also include a medical liability waiver, where you waive your rights to hold the doctor or medical institution liable for damages. Most people even sign these documents without even reading what they say.
Some waivers even include allowing the doctor or medical clinic to take photos and video of a medical procedure and use them for marketing materials, including posting them on the clinic’s website. Legal waivers may include language like:
- I understand the risk and complications of the procedure
- Risks include heart attack, stroke, brain damage, or death
- No representations have been made regarding the success of this procedure
- Complete release and bar to any claim resulting from the procedure
- The consent, waiver, and release shall be binding on the patient
- Satisfaction cannot be guaranteed
A waiver is a document that indicates you understand that you are waiving a right or claim. We have to sign waivers for all sorts of events. In most cases, people don’t bother reading what they are signing because they have no other options. When signing up for a new streaming service or downloading software, you are presented with pages of “terms and conditions,” and given the option of accepting or not accepting. What choice do you have?
With some waivers, you may be signing away your legal rights. For example, if you are signing up for a gym membership, the gym may require you to agree to the terms of the contract, which could include waiving your rights to hold the gym accountable for any injury that occurs in the gym. These waivers are an attempt by the service provider to avoid legal liability for any claims from an injured customer. However, there are limitations to what legal rights you can waive and how a contract can be enforced.
Waivers are often overly broad and try to include any type of injury or loss. Some waivers even include legal protections that are allowed by state law. In many cases, businesses use form contracts they find or copy online, even if they are not appropriate for that business or are tailored for another state’s laws. Just because you signed a waiver does not mean that waiver is enforceable.
Medical Negligence and Malpractice Claims
Medical negligence is the breach of the standard of care by a doctor that causes injury to a patient who suffers harm. Medical malpractice is a complex legal issue but can generally be simplified by using examples.
A doctor uses their education, training, experience, and tools available to diagnose and treat patients. Based on the doctor’s background, area of practice, and medical community, most reasonable doctors would follow a similar path of treatment. However, if a doctor does something or fails to do something that the other reasonable doctors would not, and it causes an injury to the patient, that may be considered malpractice.
In a medical malpractice claim, the patient or injury victim generally has to show the following:
- The doctor and patient were in a doctor-patient relationship
- The doctor breached the standard of care
- The breach of care resulted in an injury to the patient
If the injury victim can prove all elements of the claim, a jury may award the victim money damages to compensate them for their injuries. A successful claim is not just a win for the injured patient. It may also help improve medical care for others. When doctors and hospitals see a patient recover compensation for negligent care, they may be more motivated to increase standards of care in their own practice to make sure other patients don’t suffer a similar injury.
Inherent Risks of the Procedure
Part of the waiver may involve a release of claims for the inherent risks of the medical procedure. Any medical procedure carries some risk, which may be unavoidable. For example, in a surgical procedure, there is a risk of bleeding because bleeding will occur during surgery. Minor treatments, like treating a common rash, may have very limited risks. However, complex medical procedures may have more serious risks.
Not all medical injuries are eligible for a medical malpractice claim. If a patient suffers an injury because of an inherent risk, it may have been an accident and not caused by any negligence or breach of the standard of care. However, it is generally not up to the health care provider to determine if the risk was inherent or caused by a medical error. It may be a question of law and can be left up to the judge or jury to decide.
If you were injured during a medical procedure and the doctor claims it was a risk of the treatment you may still have a claim. Talk to an experienced personal injury lawyer about what happened in your case. The doctor may simply be trying to avoid liability for something they did wrong.
Is the Waiver Enforceable?
A waiver is a contract. Contract law has a long legal history, going back to English common law. A contract is an agreement between two parties that defines their rights and obligations. In a medical procedure waiver, the agreement generally provides that the doctor will perform a procedure based on the condition that the patient agrees not to file a legal claim against the doctor if something goes wrong.
However, not all contracts are enforceable, even if the parties agreed to the terms at the time of signing. Some of the reasons why a contract may not be enforceable include:
- Lack of capacity
- Signing under duress
- Misrepresentation or fraud
- Illegal under public policy
Some people do not have the legal ability to agree to waive their legal rights. This includes people with limited mental capacity as well as minors. Even if a minor has the ability to understand their rights and waive their rights, they may not be legally old enough to make this decision. If a minor signs a medical procedure waiver, it may not be enforceable.
If the agreement was made with some misrepresentation, the patient should not be restricted in their legal rights. For example, in a medical procedure, the doctor may try and use medical staff who are not legally able to provide such care. For example, a medical assistant should not be in charge of administering anesthesia when the patient understood a licensed anesthesiologist would be providing treatment.
Some types of agreements are illegal under public policy. In some states, doctors are limited in their ability to disclaim all liability. There may be a public policy reason for finding such a contract unenforceable because it is not beneficial for the greater good. This includes waivers that are overly broad, where there is adequate notification of the significance of the waiver, and whether the signer had a chance to negotiate the terms.
Lack of Informed Consent
In a related way, lack of informed consent may also be the basis for a medical malpractice lawsuit. When a doctor performs a medical procedure, they are generally required to give the patient information about the risks, benefits, and complications of the procedure. Giving the patient the proper information is required for the patient to be able to make an informed decision about whether or not to undergo the procedure. This is known as informed consent.
Like a medical treatment waiver, informed consent agreements are forms that have a lot of information and patients may not have a lot of time to read all the fine print. Language in a consent form may include statements like:
- All surgical procedures have risks, including bleeding, infection, and death.
- I have been informed of the risks of the procedure, nature of the procedure, likelihood of success, and expected benefits.
- I have been informed of possible side effects and potential problems that might occur.
- I have been informed of reasonable alternative methods of treatment, as well as their risks and benefits.
- I have been informed of the consequences of declining the medical procedure and reasonable alternatives.
These documents can be very important and may also have to be signed by the doctor or care provider. If the doctor does not provide proper informed consent, they may be liable for medical malpractice. Informed consent lawsuits are common in plastic surgery errors. A doctor may be very confident in selling the procedure to the patient, overpromising results and minimizing complications. If the patient suffers an injury because of a medical error, they may still be able to file a malpractice claim even if they signed a waiver before the medical procedure.
Doctor Claimed I Have No Legal Standing
If there was a medical mistake that caused an injury, the doctor may tell the patient that they have no claim or that they signed a waiver. Just like you would not listen to your car mechanic for a medical diagnosis, do not rely on your doctor for legal advice. It is not up to the doctor or hospital to determine if you have a claim.
There are several reasons why a doctor may not want to tell you about a medical mistake, even if it causes serious injury, disfigurement, or harm. The doctor may not want you to find out that they committed a serious error because they could be liable for damages. The doctor may also not think that they did anything wrong, even if it was a breach of their standard of care. The doctor may also believe that the waiver is “air-tight,” but that is a question of law.
It is up to the court and the jury to determine if you have a medical malpractice claim, even if you signed a waiver. The court could find the waiver unenforceable for many reasons, including the waiver was overly broad or unclear. The patient may have also signed the agreement under a mistake of fact in what was included in the form and what the procedure involved. Even if the waiver is enforceable, the doctor’s actions may not be covered by the waiver. Contact a medical injury lawyer for more information about your case.
What If There Is No Evidence of Malpractice Under Anesthesia?
How is the patient supposed to know if a mistake occurred if they were under the influence of anesthesia at the time? Most surgical procedures involve anesthesia, to put the patient under so the patient will not be awake or able to move during treatment. If a mistake happens during surgery, how is the patient supposed to find out about it?
There may be a number of ways that negligence can be determined, even if the patient was unconscious. In many cases, evidence of the error is in the medical record. For example, if the doctor or anesthesiologist administered the wrong dosage or wrong medication, it may have been documented in the patient’s medical records.
There may be a number of witnesses present, including nurses, other doctors, anesthesiologists, and assistants. The witnesses may have seen the error but were too afraid of losing their jobs to come forward. However, under penalty of perjury in a deposition or courtroom, the witness may be much more likely to admit that there was a mistake.
In some cases, the patient does not even have to prove negligence, based on the circumstances. This is common in left-behind object malpractice cases. In some surgeries, the surgeon may leave some material or equipment behind in the patient’s body. It sounds impossible but it is more common than you may imagine. Left-behind objects can include:
- Surgical sponges
- Surgical tools
- Surgical gloves
When a foreign object is left behind, it is considered a “never event” because it should never happen, except where there is a medical error. The fact that a patient has a foreign surgical object in their body after a surgery speaks for itself. In law, this is known as res ipsa loquitur, “the thing speaks for itself,” in Latin.
Medical Malpractice Attorneys
After a medical procedure goes wrong, patients may be left wondering what options they have left. The doctor may offer additional procedures to correct the errors but do you really want to go back under the knife of a doctor you no longer trust? Just because you signed a paper that says you have limited options does not mean you have no legal recourse. Talk to a medical malpractice lawyer about your legal rights.
Contact experienced trial attorneys with a record of success representing medical negligence victims and their families. Your legal team will advise you of your legal rights and can help you recover the maximum compensation available. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.