Can You Sue for Medical Malpractice if You Signed a Waiver?

Most doctors work hard to help their patients. But doctors, hospitals, and clinics also work diligently to protect themselves from legal risks.  

Whenever you see a new doctor or head to the hospital for a scheduled procedure, you must show up early just to sign paperwork. But what does this paperwork mean? More importantly, can you still sue a doctor if you signed a liability waiver? 

Common Paperwork to Sign Before Medical Treatment

Before you receive medical treatment, a new healthcare provider will usually require you to sign a pile of paperwork. You should review the documents to determine whether you are signing a waiver. Sometimes, you might sign a document that looks like a liability waiver but isn’t. For example, you might see the following documents: 

• Health insurance approvals giving the provider your billing information
• HIPAA releases allowing your doctor to get copies of your medical records
• Acknowledgement of informed consent

In contrast, a waiver is a document that aims to release the healthcare provider from legal liability for any injuries resulting from negligence. When you waive your rights, you acknowledge that you could sue the medical professional or facility if an error occurs, but you agree to forgo such a claim. 

Differences Between an Informed Consent Acknowledgement and a Liability Waiver

Doctors have an ethical and legal duty to discuss treatment with a patient before providing it. The patient must then give informed consent. The medical profession has a few exceptions to this rule: A doctor can give lifesaving treatment if the patient is unconscious, or they can give treatment that the patient’s healthcare proxy or family consents to. 

An acknowledgment of informed consent is not the same as a liability waiver. Healthcare providers can use a signed acknowledgment of informed consent to show that you were properly educated about your treatment. Without informed consent, treatment could amount to battery or assault. 

A liability waiver is optional. Hospitals and medical practices use liability waivers to try to limit their exposure to medical malpractice lawsuits. Although many providers combine an informed consent acknowledgment with a liability waiver, these address separate issues. 

Effectiveness of Liability Waivers

A liability waiver has the same purpose whether you sign it at the trampoline park or the doctor’s office. However, the enforceability of this type of document differs greatly. The courts view liability waivers with skepticism because they cut off an injured party’s rights before a judge or jury ever sees the case. 

In some situations, particularly when the victim has voluntarily assumed the risks of an activity, a waiver may hold up in court. Thus, waivers for sporting activities like jumping on a trampoline or ice skating might block an injured participant from suing for injuries caused by the activity.  

However, these waivers may be limited in scope; someone who receives an electric shock from a faulty switch in the bathroom of an ice skating rink could still have the right to sue. 

By contrast, medical waivers do not involve a voluntary assumption of risk. While you might understand the risks, you have no control over your treatment. Instead, control sits completely in the doctor’s hands. 

Moreover, the threat of medical malpractice lawsuits has pushed the healthcare industry to adopt strict measures intended to reduce medical errors. From double-checking the patient’s records against their ID bracelets before administering drugs to marking patients for surgery before sedating them, these procedures have gone a long way to protecting patient health and safety. 

If New York courts enforced medical waivers, doctors, hospitals, and medical practices could cut corners without any legal exposure. To prevent this from happening, courts tend to narrowly construe medical waivers and may decline to enforce them. 

Suing Doctors After Signing a Waiver

You should speak to a lawyer even if you signed a waiver. In fact, many doctors and hospitals ask for waivers from patients to deter them from filing medical malpractice lawsuits even though they know a court may invalidate the document. 

After a lawsuit is filed, the malpractice insurer may raise the waiver as a defense. Because waivers are contrary to public policy, your lawyer will respond by asking the court to invalidate the waiver. Since this is a legal rather than a factual issue, the judge may agree, and the jury might never hear about the waiver. 

Contact an Experienced New York Medical Malpractice Lawyer

A waiver can complicate an injury claim, but the medical malpractice lawyers at Silberstein & Miklos can often find ways to overcome complications. We know how your finances and quality of life have suffered after experiencing a medical error, and we fight for justice and compensation.  

Contact us today for a free consultation to discuss your injuries and learn how our medical malpractice attorneys can help you.