Can You Sue After Signing a Waiver?
If you suffer harm at the hands of your health care provider, you may still have grounds to sue after signing a waiver. Prior to certain medical procedures, patients are asked to sign waivers that outline the potential health risks related to the procedure, and the responsibility for medical expenses.
What Is Medical Negligence?
According to the legal definition, medical negligence is defined as an action or lack of action during a medical procedure that can lead to the illness, injury, disability, or death of a patient. Medical negligence occurs when a medical professional fails to take expected and reasonable caution while treating a patient or performing a medical procedure.
According to the law, medical professionals owe their patients a duty of care that protects them from any type of harm or injury while the patients are under their care. The scope of medical negligence applies to any type of medical care or medical procedure that is received from hospitals, doctors, surgeons, nurses, chiropractors, lab technicians, dentists, pharmacists, and other types of healthcare workers.
Common causes of medical negligence include the following actions:
- Misdiagnosis of a patient’s medical condition
- Performing incorrect or unnecessary medical procedures
- Medical errors during a surgical procedure
- Prescribing the wrong medications or doses
- Using defective medical equipment
- Failing to follow up with a patient after a medical treatment
These are just a few of many examples of medical negligence. Medical care providers are expected to provide patient care that complies with standard procedures. These procedures should be on par with what a similarly trained professional would provide under the same circumstances. If a medical provider’s actions deviate from the accepted medical standard required by law, this is considered medical negligence.
When Can You Sue For Medical Malpractice?
To file a medical malpractice lawsuit, you must first show proof that a medical professional committed negligent or harmful actions that caused you harm or injury. To sue for medical malpractice, you must establish the existence of four important factors:
You Had a Doctor/Patient Relationship
As the patient, you must prove that a doctor/patient relationship existed during the time of your injury. You must prove that you were under the care of the doctor in question and that the doctor agreed to treat you for some type of medical condition. Keeping track of doctor’s visits, treatments, and prescribed medications is important to winning a medical malpractice case.
Your Doctor Violated the Standard of Care
As the patient, you are required to prove that your doctor violated the standard of care by acting in a negligent or reckless manner. When you sue for medical malpractice, expert witnesses are often called to testify during the trial to show that another well-qualified doctor would have acted differently under the same circumstances.
Your Doctor Caused Your Injury
In some cases, patients are already suffering from an existing medical condition, illness, injury, or disability illness that makes filing a medical malpractice lawsuit more difficult. For a successful case outcome, the patient must prove that the doctor’s actions are directly linked to the cause of his/her harm.
You Sustained Damages
To have a medical malpractice case, you must prove that you sustained damages as the result of your illness or injury. Proof of damages entitles you to recover losses for your medical expenses, lost income, pain and suffering, temporary or permanent disabilities, and the loss of normal enjoyment of life.
Although medical negligence and medical malpractice cases are often intertwined, there is a difference between negligence and malpractice. The same four factors needed to prove medical negligence also apply to medical malpractice. However, in medical negligence lawsuits, the person being sued must be a qualified medical professional or medical institution, clinic, or nursing home facility. Medical negligence and medical malpractice can apply to a patient’s physical, emotional, or financial harm.
What are Waivers?
Essentially, waivers are consent forms that medical patients sign before receiving medical care. Waivers, including consent forms, are standard practice in most hospitals, emergency rooms, and clinics, especially when the patient will be getting any type of surgical procedure.
A standard waiver outlines what the surgery will entail, any potential inherent risks of the procedure, and the patient’s financial responsibilities for the procedure. Most waivers also contain a statement that says the patient can not sue the doctor or medical facility if the patient suffers an injury as a direct result of one of the stated potential risks.
Signing a Waiver
Before signing a waiver for a medical procedure or treatment, it’s essential to understand what you are signing. If you sign a waiver, and you suffer injuries because of the procedure, you may not be able to sue after signing a waiver. Understanding what is in the waiver and what is defined as “informed consent” can have a big impact on a medical malpractice lawsuit.
Can You Sue After Signing a Waiver?
Generally, when you can sue after signing a waiver depends on the language and terms found in the waiver. Some hospitals, medical clinics, and doctors create waivers with very strict, but explicit language. These waivers are intentionally designed to prevent patients from filing medical malpractice lawsuits, even for actions that would reasonably fall under medical malpractice.
As a hypothetical example, after signing a waiver for non-ocular surgery, the patient loses his/her eyesight. This scenario was not covered in the informed consent, the waiver signed by the patient. This may qualify as a preventable mistake because it was not covered in the waiver, and the patient may qualify to file a medical malpractice lawsuit against the medical professional that performed the eye surgery or the medical institution where the surgery occurred.
Medical waivers can be complicated and confusing for patients due to medical terms and legal jargon that patients do not understand. In emergency medical situations, patients are often sedated and in pain, so they can not even comprehend what they are signing. For instance, a patient admitted to a hospital for emergency heart surgery may be informed that potential complications can include injuries, disabilities, or death, but most patients will sign the waiver anyway. In such cases, inherent surgical risks are obvious, but surgery may be necessary to save the patient’s life.
If you do not understand the language and terms in a waiver, it is best to hire a medical malpractice attorney in Indiana who can explain what you will be signing before you sign it. Filing a medical malpractice lawsuit after you have signed a waiver may be difficult, but not impossible.
An attorney can go through the terminology of the waiver, do an in-depth investigation, and gather evidence that may negate the terms of the waiver. Even when a medical institution or doctor has a patient sign a waiver that attempts to take away his/her rights to sue after signing a waiver, all is not lost.
Do Waivers Hold Up in Court
While medical waivers are drawn up to prevent patients from filing medical malpractice lawsuits after medical procedures are done, these waivers do not release a hospital or medical professional from liability if injuries occur due to gross negligence or a preventable action. Even “airtight waivers” can have mistakes and discrepancies that do not hold up in court.
You can still sue after signing a waiver if any of the following circumstances occur:
- The complication you suffered was a well-known risk, but the waiver you signed did not include it on the list of potential risks. In this situation, you did not provide your informed consent for the procedure because the doctor did not inform you of all the possible risks.
- The waiver failed to properly describe the complication that you suffered. For example, the waiver misstated the rate at which this specific complication occurs, or the waiver used unclear or ambiguous language that the average patient could not comprehend.
- The medical facility or medical professional obtained your consent through pressure or force, or you were not mentally competent when you signed the form. To provide valid informed consent, a patient must sign a waiver of his/her own free will and must be lucid enough to understand the terms of the waiver. If these circumstances do not apply to the patient who signed the waiver, the patient can file a claim for lack of informed consent and any injuries that occur.
Medical waivers can not release medical institutions and medical professionals from liability if they commit acts of omission or gross negligence. Patients who suffer injury, illness, or disability following a medical procedure may have grounds for a medical malpractice lawsuit.
It’s important to contact a medical malpractice attorney who can review a copy of the waiver, patient medical records, and any related documents. Just because you signed a waiver, it does not mean that you do not have grounds to sue after signing a waiver and collect the compensation you deserve for your damages.