Taking Legal Action If You Signed a Waiver Before a Medical Procedure

by vtaylor
How to take legal action if you signed a waiver before a medical procedure

When preparing for a medical procedure, it’s customary to sign a waiver—a legal document releasing healthcare providers from liability if complications arise. While these waivers are designed to protect medical facilities and practitioners, they do not create an absolute barrier to legal action in the event of medical malpractice. If you find yourself wondering, “Can I sue if I signed a waiver before a medical procedure?” in Pennsylvania, read on to understand the nuances surrounding medical waivers and potential avenues for seeking compensation.

Key Takeaways

  • A medical waiver, signed before a procedure, outlines details, costs, and risks, including a binding statement preventing lawsuits for specified risks.
  • Waivers are not an absolute bar to lawsuits.
  • Negligence occurs if healthcare providers fail to respect a patient’s autonomy, leading to legal consequences for failure to obtain informed consent.
  • Compensation may include reimbursement for procedure costs, medical expenses, pain and suffering. Lost wages, future loss of earnings, and loss of consortium damages may also apply.

What is a Medical Waiver?

A medical waiver is a legal document signed before a medical procedure, outlining crucial details such as the nature of the procedure, associated costs, and inherent risks. Importantly, it includes a statement that prevents patients from suing the provider and facility for injuries resulting directly from specified risks. By signing the waiver, patients acknowledge awareness of potential risks and agree not to hold the medical professionals legally liable.

Do Waivers Stop You From Suing?

While the presence of a waiver may complicate legal action, it does not categorically prevent you from pursuing a lawsuit. If you signed a waiver before a medical procedure in New Jersey and subsequently suffered injuries, there are circumstances where legal action may still be possible. The key lies in whether your injuries stem from one of the acknowledged risks in the waiver or another form of negligence.

Factors that May Make Waivers Unenforceable:

  • Signing Under Duress: If you signed the waiver under pressure or coercion, it may be considered invalid.
  • Lack of Capacity: Individuals lacking mental capacity, such as minors, may not be bound by a waiver.
  • Against Public Policy: Waivers deemed contrary to public policy may be unenforceable.
  • Fraud or Misrepresentation: If the waiver was based on fraudulent information or misrepresentation, it may not hold up in court.
  • Unconscionability: Waivers that are excessively unfair or one-sided may be deemed unconscionable and unenforceable.

It’s crucial to consult with experienced medical malpractice attorneys to assess the specific circumstances of your case and understand whether the waiver can be challenged.

Informed Consent vs Negligence

As mentioned above, waivers are meant to be a form of informed consent. Informed consent is a legal and ethical concept wherein a patient voluntarily agrees to a medical intervention after receiving adequate information about the procedure’s nature, risks, benefits, and alternatives. The “voluntary” part of informed consent is crucial, as is the concept that the patient is within capacity to comprehend the information that has been provided.

The purpose of informed consent is to respect patients’ autonomy, allowing them to actively participate in decisions about their medical care. If a medical professional or hospital fails to receive the informed consent of a patient, there may be legal consequences.

Now, how does negligence play into informed consent? At its core, informed consent is a process designed to respect and uphold a patient’s autonomy. Negligence, on the other hand, may occur if a healthcare provider fails to respect a patient’s autonomy by not adequately informing them of potential risks, consequences, or alternative treatments. In this context, the failure to obtain informed consent can be considered a breach of the duty of care.

Negligence may also come into play if the information provided to the patient is incomplete, unclear, or inaccurate. Therefore, even if you were provided a waiver and given enough information, if that information was incorrect in some way, you may still be able to sue.

How to Prove Negligence After Signing a Waiver

Proving negligence after signing a waiver can be challenging, but it’s not impossible. While a waiver may complicate matters, it does not absolve healthcare providers of their duty to provide a standard of care. If you believe you’ve suffered harm due to negligence, follow these steps to build a strong case:

1. Obtain a Copy of the Waiver

Secure a copy of the waiver you signed before the medical procedure. Understanding the language and specific terms is crucial to assessing its enforceability.

2. Evaluate Waiver Language

Scrutinize the waiver for clarity, completeness, and fairness. Look for any ambiguities, omissions, or language that may be considered against public policy. If the waiver is overly broad or one-sided, it might be challenged in court.

3. Determine Scope of Waiver

Identify the risks explicitly mentioned in the waiver. Assess whether the injury or harm you’ve suffered falls within the scope of acknowledged risks. If the negligence goes beyond the listed risks, it may weaken the waiver’s enforceability.

4. Examine Circumstances of Signing

Consider the circumstances under which you signed the waiver. If there was duress, coercion, or any form of pressure that compromised your ability to make an informed decision, it may impact the validity of the waiver.

5. Assess Capacity

If you lacked the mental capacity to fully comprehend the implications of the waiver—due to factors like intoxication or mental impairment—it may raise questions about its enforceability.

6. Identify Acts of Negligence

Document instances of negligence by healthcare providers. This may include deviations from the standard of care, errors in judgment, or failures to follow established protocols.

7. Consult with Medical Experts

Seek opinions from medical experts to establish a breach of the standard of care. Medical professionals can provide insight into whether the actions of the healthcare providers deviated from accepted norms.

8. Gather Evidence

Collect evidence to support your claim, including medical records, witness statements, and any documentation related to the medical procedure. The more comprehensive the evidence, the stronger your case.

9. Establish Causation

Demonstrate a direct link between the healthcare provider’s negligence and the harm you’ve suffered. Establish that proper care, as outlined in the standard of care, would have prevented the injury.

10. Consider Exceptions to Waiver Enforcement

Explore potential exceptions to waiver enforcement. Certain circumstances, such as signing under duress, lack of capacity, fraud, or unconscionability, may render the waiver unenforceable.

11. Legal Consultation

Consult with an experienced medical malpractice attorney. They can assess the specific details of your case, evaluate the waiver’s validity, and guide you through the legal process.

12. Initiate Legal Proceedings

If there is a strong case for negligence and the waiver’s enforceability is questionable, consider initiating legal proceedings. Your attorney will help navigate the complexities of the legal system and advocate for your rights.

Proving negligence after signing a waiver requires a meticulous examination of the circumstances, waiver language, and acts of healthcare providers. While waivers pose challenges, they do not eliminate the possibility of seeking justice for injuries resulting from negligence.

What Compensation Could You Receive For Medical Malpractice?

If you’ve suffered injuries or damages due to medical malpractice, potential compensation may cover:

Reimbursement for Surgical Procedure Costs

Compensation may include the costs directly related to the surgical procedure, covering expenses such as hospital fees, surgical fees, anesthesia costs, and other medical services associated with the treatment.

Medical Expenses – Past and Future

You may be entitled to reimbursement for both past and future medical expenses resulting from the medical malpractice. This encompasses costs related to additional medical treatments, therapies, medications, and any ongoing healthcare needs.

Pain and Suffering Compensation

Pain and suffering damages aim to compensate you for the physical and emotional distress caused by the medical malpractice. This includes the pain endured during the recovery process, as well as any long-term emotional trauma resulting from the incident.

Lost Wages Reimbursement

If the medical malpractice led to a loss of income because you were unable to work due to the provider’s negligence, you may be entitled to reimbursement for lost wages. This includes both the income lost during the recovery period and any potential future earnings affected by the injury.

Future Loss of Earnings Capacity Compensation

In cases where the injuries are permanent and impact your ability to earn income in the future, compensation may be awarded for the loss of future earning capacity. This accounts for the diminished ability to work or pursue certain occupations due to the lasting effects of the malpractice.

Loss of Consortium Damages

In some cases, family members may also be eligible for compensation under “loss of consortium” damages. This pertains to the loss of companionship, support, and services that the injured person’s family members may experience due to the malpractice.

Special Damages

Special damages cover specific financial losses incurred due to the malpractice, such as out-of-pocket expenses for additional medical treatments, rehabilitation, or modifications to accommodate new physical limitations.

Punitive Damages

In rare instances where the medical professional’s actions were particularly egregious or intentional, punitive damages may be awarded. Punitive damages are meant to punish the defendant and deter similar conduct in the future.

Legal Fees and Costs

In successful medical malpractice cases, legal fees and costs incurred during the legal proceedings are typically covered. This ensures that you are not financially burdened by the pursuit of justice.

It’s important to note that the amount of compensation varies based on the specific circumstances of each case. Factors such as the severity of the injuries, the impact on daily life, the degree of negligence, and the jurisdiction’s legal precedents all contribute to the determination of compensation.

Working with an experienced medical malpractice attorney is crucial in navigating these complexities. They can assess the full extent of your damages, gather the necessary evidence, and advocate for your rights to secure a fair and comprehensive settlement.

Consult With Medical Malpractice Attorneys in Pennsylvania Today

If you have signed a waiver prior to undergoing medical treatment, there are numerous complexities involved. However, that waiver does not mean you cannot sue. If you believe that you are a victim of medical malpractice, it is important that you contact an experienced medical malpractice attorney in Philadelphia, like those at Raynes & Lawn. An attorney can evaluate the enforceability of the waiver and assist you in exploring options for compensation for your injuries. At Raynes & Lawn, our dedicated team is ready to assist you on the path to justice and recovery. Call 1-800-535-1797 or fill out our contact form to schedule a free initial consultation.



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