Can I File a Medical Malpractice Claim if I Signed a Waiver of Liability Before Surgery?

Posted on behalf of Peter T. Nicholl in Medical Malpractice Published on January 20, 2023 and updated on January 23, 2023.

patient in hospital writing on formsYou have probably signed a waiver of liability before. For example, you may have signed such a document before going jet skiing or joining a gym/fitness center. You may have even signed a waiver before undergoing surgery at a hospital or outpatient facility.

These documents say that the person signing gives up their right to take legal action to hold the doctor or medical facility liable for damages that result from the procedure. This raises the question of whether such a document could be enforced if you suffer an injury caused by medical malpractice.

You can be sure liable parties will try to enforce this waiver to shield themselves from financial liability for your injuries. However, a liability waiver might not hold up in court, especially if your lawyer can show the doctor did not uphold the appropriate standard of care during the procedure.

If you have legal questions after being a victim of medical malpractice, call The Law Offices of Peter T. Nicholl today to learn more about how we may be able to assist you. There are no upfront fees with our services, and our Maryland medical malpractice attorneys have obtained millions on behalf of medical malpractice victims.

Free initial legal consultation. Call us at 410-401-9979.

What is Included in a Waiver of Liability for a Medical Procedure?

Liability waivers may be called something different by hospital staff. For example, they might call these documents:

  • Consent forms
  • Release of liability
  • Medical liability release
  • Medical liability waiver and release

A typical waiver will include certain information. For example, the document will describe what is involved in the surgery/medical procedure, along with the potential risks. There will also be a section explaining that your signature means you are waiving your right to take legal action against the doctor or hospital if you get injured directly because of one of the risks you were informed of.

If you are undergoing surgery on your spinal cord, the waiver may explain the potential risks include paralysis or even death. Other potential risks that may be listed on a waiver of liability include excessive bleeding, injury to surrounding tissues, disability or loss of mobility.

The waiver will also detail the patient’s financial responsibility for the procedure, including what is covered by insurance.

Signing a waiver of liability demonstrates that you have informed consent, meaning you are aware of the risks of the procedure. Even though you have given informed consent about the risks, doctors have a legal obligation to provide care that meets accepted standards in the medical community.

Patients usually sign these forms while they are being admitted to the hospital. That means they sign release forms while signing other admissions and insurance coverage documents.

Can a Waiver of Liability be Enforced After Medical Malpractice?

This is a question to discuss with an experienced attorney, as there are many factors that must be considered. Even if the waiver is enforceable, the doctor’s actions may have been beyond the scope of the contract. For example, it is possible the injury you suffered was not one of the inherent risks of the procedure. You may have suffered the injury because of the doctor’s malpractice.

Even if your injury was one of the inherent risks of the procedure, you may have suffered the injury because of the doctor’s carelessness. He or she may have done a poor job of monitoring you during the procedure or a poor job of responding to complications. If his or her actions were a breach of the standard of care, there may be a case.

It is important to note that it is usually not up to a doctor to determine the inherent risks of a procedure. This may be a question of law that is best left to a jury or a judge. In other words, some of the inherent risks listed on your liability waiver form may not be inherent risks of the procedure. Most patients are not going to know because they do not have the same training and education as licensed doctors.

It is vital to be cautious about what you are signing when you get medical treatment. You do not want to sign away your rights and be unable to seek compensation for damages you might suffer. You also should not listen to the doctor about legal issues. You should get legal help from qualified professionals who have your best interests in mind. Doctors simply want to avoid lawsuits.

Contact Peter T. Nicholl Law Offices to Discuss Your Claim

Medical malpractice can cause catastrophic or fatal injuries. Victims often need extensive medical treatment to deal with the effects of the doctor’s negligence. They may be unable to work during their recovery and may never fully heal.

If you were injured because of medical malpractice, you may have legal options. Call us today to discuss what happened and learn if we may be able to assist you. There is no obligation to hire our firm after an initial consultation and no upfront fees for our services.

Call The Law Offices of Peter T. Nicholl today: 410-401-9979.