You may have undergone a medical procedure in which you were asked to sign a waiver or release form acknowledging the inherent risks involved. A natural question in these circumstances is if you can still file a medical malpractice lawsuit if you were injured in the course of the procedure. The quick answer is maybe.
What is a Waiver?
Prior to undergoing a medical procedure, patients most often have to give their health care providers informed consent for the providers to complete the procedure. Waivers assist in this process.
These documents are intended to inform patients about the risks, benefits, and potential complications associated with a medical procedure. By signing a waiver, patients acknowledge that they have received this information and agree to undergo the procedure with a clear understanding of its potential outcomes.
Enforceability of Waivers
The enforceability of waivers can vary depending on several factors. It’s essential to recognize that while a signed waiver can have some impact on legal action, it does not automatically absolve healthcare providers from liability. Courts generally consider the following elements when assessing the enforceability of a waiver:
- Informed Consent: A waiver is more likely to be deemed valid if it can demonstrate that the patient received sufficient information regarding the risks and benefits of the procedure. If the healthcare provider failed to disclose critical information or misled the patient, the waiver’s enforceability may be called into question.
- Public Policy: Courts also consider whether enforcing a waiver would violate public policy. Waivers that attempt to release healthcare providers from their responsibility for negligent or intentional misconduct are typically seen as against public policy and may be unenforceable.
- Gross Negligence or Recklessness: Waivers generally do not protect healthcare providers from claims of gross negligence or reckless behavior. If you can demonstrate that the healthcare provider acted egregiously or deviated significantly from the standard of care, you may still have grounds for legal action.
- Scope and Specificity: The language and scope of the waiver are crucial. If the waiver is too broad or fails to specifically address the risks associated with the procedure, it may not be enforceable.
Consulting with an Attorney
If you have experienced harm or complications resulting from a medical procedure despite signing a waiver, it is advisable to consult with a qualified attorney who specializes in medical malpractice or personal injury cases. An attorney will review the circumstances surrounding your case, assess the enforceability of the waiver, and help you understand your legal rights and options.
Contact Otorowski Morrow & Golden, PLLC
Please know that our firm is here to help if you suffered an injury because of a medical professional’s malpractice. Otorowski Morrow & Golden, PLLC provides free consultations to all our potential clients. The attorneys at our law firm also have over 120 years of combined experience representing injured parties in medical malpractice cases. They never back down to insurers and fight for their clients’ interests every step of the way. Do yourself a favor and contact them now for the quality legal representation you deserve.