It is relatively common for anyone who is about to undergo a medical procedure to fill out a consent form and some type of waiver or release that states they are fully aware of the potential risks. So, if the procedure goes wrong and the patient is left with severe injuries or severe health concerns, does the waiver mean they can’t file a medical malpractice lawsuit? The short answer is no, it does not, but let’s explore the topic in a little more detail.
What is a Waiver?
First, let’s start by talking about the waiver itself. There is always some degree of risk involved with any type of surgery or medical procedure. Your healthcare provider has a duty of care to explain these potential risks and make sure that you understand them before you agree to the procedure. This is called informed consent. You will usually be asked to sign a consent form or liability waiver confirming that you understand the risks and agree not to hold the doctor or the hospital responsible if those risks come to pass.
What Does a Waiver Cover?
The critical thing to remember is that a waiver does not protect the doctor against a medical malpractice lawsuit if one is warranted. The risks associated with the procedure could happen out of the doctor’s control even if they did everything perfectly and followed all of the appropriate procedures. For example, anesthesia complications such as fluid aspiration into the lungs or malignant hyperthermia are common risks associated with surgical procedures. Healthcare professionals should inform patients of this before signing the waiver. The surgical team should also be vigilant for signs of these and be prepared to take the appropriate action. The waiver covers injury or discomfort resulting from these complications. However, if the doctor was to leave a sponge or clamp inside the patient during a surgical procedure, that would be considered negligent and would be grounds for a medical malpractice lawsuit.
There may also be cases where there is a grey area between what is covered by the waiver and what is considered negligence. For example, we mentioned the risk of malignant hyperthermia during anesthesia. This is an inherent risk that is covered by the waiver. However, if this occurred and the surgical team did not notice or did not take steps to treat it, such as administering the appropriate drugs and applying cooling blankets and ice packs to the body, this can be considered a breach of duty of care. Even though the patient was aware of and agreed to this risk, they reasonably believed that the medical team would monitor vitals and act if it occurred. This would mean a medical malpractice lawsuit could be possible. A doctor may say that the waiver covers them, but they are not to make that decision. If you believe that negligence has occurred, the law will decide during your medical malpractice lawsuit.
Lack of Informed Consent
Another situation in which a patient could file a medical malpractice lawsuit despite the patient signing a waiver is if there was a lack of informed consent. Suppose the patient is not given enough time to read the consent forms thoroughly or the doctor has minimized or omitted the potential risks. In that case, the patient could claim that the doctor did not appropriately inform them of the risks before signing the waiver.
If you or a loved one has suffered due to medical malpractice, but the patient signed a waiver, it is important to discuss a potential medical malpractice lawsuit with an experienced medical malpractice lawyer. Even if your doctor has already told you that the waiver voids your claims, it is still advisable to book a consultation and find out where you stand legally.
Butler, Vines and Babb is a leading law firm in Knoxville, TN, with extensive litigation experience in Medical Malpractice Law, Birth Injury Law, Trucking Accident Law, Personal Injury Law, and Business Law. Contact us today at www.bvblaw.com or call 865-637-3531.
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