I Signed a Waiver before My Medical Procedure: Can I still Sue?

If you have undergone a medical procedure, such as plastic surgery or some riskier operation, you will have, in most cases, signed a waiver or release form. But, if your medical procedure did not go as planned, or you are experiencing serious postoperative complications, you may want to know if this waiver prevents you from pursuing a medical malpractice claim against the health care practitioners who performed the procedure.

Read further to find out what a waiver is and if it can prevent you from bringing a medical malpractice claim when you are injured as a result of a medical procedure.

What is a Waiver?

Whenever you are to undergo a medical procedure you will be asked to give the doctor or surgeon your “informed consent” to perform the operation. This will most often contain a waiver or release clause in which you confirm that you are aware of the risks inherent in the procedure and that you agree to hold neither the hospital nor the surgeon liable for any damages you sustain as a result of undergoing a procedure.

In other words, by signing the waiver, you typically agree to undergo the procedure in exchange for not suing if something goes wrong. While this may seem like a fair exchange, the truth is that many medical patients sign such waivers without realizing what they are signing or without fully understanding the risks.

Can I still Sue?

A waiver will not prohibit you from filing a lawsuit in every case. Some common situation when you may still be able to recover damages include the following:

Medical Malpractice: The waiver typically only protects the institution or medical practitioner who performs the procedure from known risks and ordinary complications that may arise in the course of performing the medical procedure. These waivers may not cover injuries due to preventable acts that fall below the accepted standard of practice in the medical community and thus amount to medical malpractice.

Gross Negligence: A waiver will typically not protect an institution or medical practitioner from injuries resulting from gross negligence, or conduct so reckless that it would be obviously wrong even to a person with no medical training, such as amputating the wrong limb or leaving surgical tools inside a patient’s body.

Unauthorized Treatment: A doctor typically needs authorizing consent before any non-emergency procedure can be performed on a patient. If you can prove that:

1) You were not made aware of the risks associated with the procedure; 2) had you been made aware, you would have refused it; and 3) you suffered some harm as a result of his unauthorized treatment, you may have a cause of action against the institution or doctor who treated you.

2) Had you been made aware, you would have refused it; and

3) You suffered some harm as a result of his unauthorized treatment, you may have a cause of action against the institution or doctor who treated you.

Fraud or Misrepresentation: If the institution or medical practitioner performing the procedure does not fully apprise you of the risks involved, or misrepresents the danger of undergoing the procedure, the waiver may not be enforceable.

You are entitled to know what you are signing and the institution and medical practitioner must be honestly conveyed to you the risks and dangers associated with the medical procedure or be held liable for any injuries or losses you sustain as a result.

For Help With a Medical Malpractice Claim

Waivers, informed consent, and medical malpractice can be difficult concepts to grasp. Often, medical patients are unaware of the risks associated with a particular medical procedure or what they are signing when they give consent. If you believe that you have been injured due to medical negligence and would like to gain a better understanding of your legal options, contact an experienced medical malpractice attorney.

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