Bringing a Medical Lawsuit After Signing a Medical Waiver

Before undergoing surgery or other types of medical procedures, patients are asked required to sign a medical waiver or informed consent form. These forms often contain language confirming that the patient understands and accepts certain risks associated with the procedure.

But what happens if the medical procedure goes wrong and the patient is seriously injured? Does the medical waiver form the patient they signed legally prevent her from bringing a medical malpractice lawsuit?

We discuss the legal implications of medical waiver or informed consent forms and whether they limit a patient’s right to sue for medical malpractice when things go wrong.

What Are Informed Consent Forms?

Before performing certain medical procedures or treatment, doctors must obtain “informed consent” from the patient.  This requires a doctor (or healthcare provider) to explain the medical procedure or treatment to the patient. This include an explanation of why the doctor thinks the procedure will benefit the patient. More importantly, the doctors must clearly explain all the known material risks and potential complications associated with the medical procedure.

After being “informed” of the benefits and potential risks of the medical procedure, the patient can then give “informed consent.” The logic behind informed consent requirements in the healthcare field is obvious. Requiring healthcare providers to obtain informed consent ensures that patients understand and participate in their own medical care.

Although informed consent is supposed to involve a meaningful discussion between doctor and patient, the common practice in healthcare today is much different. Most doctors satisfy the “informed consent” requirement simply by requiring all patients to sign a waiver or release form. The language in these forms states that the patient understands the risks of the medical procedure and consents to have the procedure.  Some forms also contain language indicating that the patient will not hold the doctor responsible for injuries resulting from the procedure.

Does an Informed Consent Waiver Prevent You From Suing?

Many people incorrectly assume that signing an informed consent waiver prevents them from suing for medical malpractice if the procedure goes wrong. Informed consent waivers do NOT prevent patients from suing for medical malpractice if the doctor is negligent in performing the medical procedure. No release form can ever bar an injured patient from suing for medical negligence. The law does not allow doctors (or anyone else) to make themselves immune from negligence liability through waivers.

There is a very clear public policy rationale behind the legal rule that waivers cannot prevent liability for negligent conduct. If this were not the case, then getting a waiver would give doctors a license to act outrageously without any accountability. A surgeon could get drunk and amputate the wrong limb and you would not be able to sue him simply because you signed a waiver. Fortunately, our legal system simply does not allow this.

Signing an informed consent waiver places some limitations on your ability to sue if things go wrong. For starters, it puts limits on your ability to sue the doctor for breach of informed consent. Lack of informed consent is a type of tort claim that is very common in malpractice cases. As the name suggests, however, a claim for lack of informed consent only exists when a procedure is performed without obtaining informed consent from the patient. If you signed an informed consent waiver, it will be extremely difficult to sue for breach of informed consent if what should be spelled out is spelled out.

When Is Informed Consent Required?

Informed consent is generally required from a patient before any type of invasive medical procedure that has potential risks and complications. Examples of medical procedures that would require informed consent include surgery, invasive medical tests (e.g. a biopsy), vaccinations, anesthesia. Informed consent is not required in emergency medical situations when there is no time.

Can Informed Consent Waivers Be Used Against You in Court?

Many defense attorneys in medical malpractice cases will attempt to introduce a signed informed consent form as evidence at trial to suggest that the plaintiff somehow assumed the risk of their alleged injuries. Our malpractice attorneys have successfully blocked this from happening in prior cases by filing a motion to exclude informed consent waivers from evidence. The primary argument we have made in these motions is that allowing this type of evidence would confuse the jury into thinking that a doctor can avoid liability for malpractice by having patients sign a waiver. There is plenty of supporting case law on this point and we have won this motion in 2 separate malpractice cases.

Medical Waiver Law in Other States

Here are some cases in other jurisdictions that are in accord that not only is signing an informed consent waiver not signing away your rights to bring a medical malpractice lawsuit, but the document cannot even be admitted at trial.

• New Jersey – Ehrlich v. Sorokin (2017): Plaintiff filed a medical negligence lawsuit following complications from a colonoscopy (defendant breached the standard of care by not building a gel cushion underneath her polyp).  There was no informed consent count.  The trial judge admitted the informed consent disclosure, finding that it was relevant to the standard of care for the procedure.  The appellate court found the admission of informed consent given to the patient as reversible error.   Why? The court found that the danger the admissibility of informed consent in a case without an informed consent count may mislead the jury into thinking that the patient consented to the injury.
• Missouri – Wilson v. Patel (2017). This case reads a lot like Ehrlich. In Wilson, the plaintiff sued after complications of esophageal dilation. Informed consent was ubiquitous at trial. requiring reparative thoracic surgery. After a defense verdict, the Supreme Court of Missouri reversed, ruling that Missouri “joins the chorus” of other states that find that evidence of alleged informed consent is not relevant and can only mislead a jury into believing that the patient consented to a breach of the standard of care.
• Pennsylvania – Brady v. Urbas (2015): This is a podiatry malpractice case where the plaintiff claimed the podiatrist negligently treated her toe in the three follow-up surgeries (a fourth surgery by another surgeon did the trick and she recovered well). Reversing a defense verdict, the court used well-stated language: “the fact that a patient may have agreed to a procedure in light of the known risks does not make it more or less probable that the physician was negligent.”

Contact Miller & Zois About Medical Malpractice

If you have been the victim of medical negligence, contact the Baltimore medical malpractice lawyers at Miller & Zois to get the best possible representation for your case. Contact us online or call us at 800-553-8082