Can I File a Medical Malpractice Lawsuit if I Signed a Waiver Before a Procedure?

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Medical Malpractice

Every medical procedure comes with a certain degree of risk. Some are riskier than others, including major heart surgery and an invasive procedure to remove a brain tumor. However, even minor medical procedures can cause serious health complications if something goes wrong. Prior to any type of surgery or medical procedure, the patient will be asked to sign a waiver, which describes the procedure as well as the potential risks associated with the course of treatment. Once the patient signs the waiver, it means that they have provided informed consent, meaning they understand the risks inherent in the surgery and gave consent to proceed with treatment. By the patient signing the waiver, it is also understood that the patient cannot sue the health care provider or hospital for medical malpractice if something goes wrong. Although the signed waiver protects health care providers in the event of unforeseen complications, it does not prohibit patients from taking legal action if the health complications were the result of medical negligence. An experienced medical malpractice lawyer will determine whether negligence was involved and assist the patient with a malpractice lawsuit.

What is a Medical Waiver?

A medical waiver is a consent form that all patients must sign before undergoing a medical procedure. A standard waiver will cover the following information:

  • Detailed description of the procedure
  • The costs associated with the procedure, and what portion, if any, the patient is responsible for covering
  • The potential risks associated with the procedure
  • A section stating that the patient cannot sue the health care provider, hospital, or medical office if he or she suffers a personal injury as a result of the risks described in the waiver

Does a Signed Waiver Always Prohibit Patients from Taking Legal Action?

A medical waiver is an important document in that it informs patients of the potential risks associated with the procedure. It also releases the hospital or health care professional from liability if complications arise during the surgery. However, there are instances in which a patient may be able to pursue a medical malpractice lawsuit and recover damages despite signing a medical waiver, including the following:

  • Medical malpractice: A medical waiver protects the health care provider and the institution for known risks and complications that are associated with a procedure. However, the waiver does not cover injuries or health complications that were caused by preventable medical errors that fell below the accepted medical standard of care.
  • Gross negligence: In most cases, a medical waiver will not protect a health care professional or institution if the patient’s injuries were the result of gross negligence. This means that the health care professional’s conduct was so reckless that even someone with little to no medical training would recognize the conduct as reckless. An example of gross negligence would be leaving a surgical instrument inside the patient’s body or amputating the wrong limb.
  • Unauthorized treatment: If a doctor fails to obtain informed consent from a patient, the doctor can be charged with a civil or criminal offense. In order for a patient to prove that they did not provide authorized consent prior to a procedure, they must be able to prove the following:
    – The patient was not made aware of the health risks associated with the procedure.
    – If he or she had been warned of the risks, the patient would have refused the procedure.
    – The unauthorized treatment caused the patient to suffer harm.
    – As a result, the patient may have a cause of action against the health care provider.
  • Fraud or misrepresentation: The medical waiver may not be enforceable if the health care provider failed to discuss the risks involved with the procedure or misrepresented the dangers associated with the surgery or medical procedure.

The patient may also be eligible to pursue a medical malpractice lawsuit if they were pressured or forced to sign the medical waiver. The patient must fully understand the terms of the document and be able to sign the waiver out of their own free will.

What is Informed Consent?

Prior to signing a medical waiver, the patient must receive detailed information about his or her medical condition, the treatment options available, the course of treatment that the health care professional recommends, the health risks associated with the treatment, and the prognosis. It is crucial that this information be presented in a way that is easy to understand, and that the patient has ample opportunity to ask questions about the procedure, the recovery, and follow-up care. The patient can provide his or her informed consent after receiving this information and considering the risks involved. Adults are considered competent to provide informed consent unless they suffer from mental illness or other impairments, but children are automatically presumed to be incompetent. A parent or guardian must provide consent on a child’s behalf. In fact, if a patient who is under the age of 18 signs a waiver for a surgical procedure, not only is this an example of gross incompetence, but also the minor’s parents can sue the doctor or hospital. In addition, if the parents sign a waiver for their child and the child is injured during the procedure, the parents are not bound by the waiver. They may pursue a medical malpractice lawsuit against the doctor or hospital.

How Do I Prove that My Health Care Provider was Negligent?

Unfortunately, serious health complications can happen during surgeries and other medical procedures. However, if the complication is caused by a negligent medical error or oversight, the patient may be able to pursue a medical malpractice lawsuit, even if he or she signed a waiver. In order to have a successful medical malpractice case in which a signed waiver is involved, the patient will need to be able to prove the following:

  • The patient’s injuries were caused by the actions of the health care provider or health care facility.
  • The patient’s injuries were not the result of actions covered under the informed consent risks.

This will likely require the patient to obtain copies of his or her medical records, a copy of the signed medical waiver, and proof that the health care provider was negligent. To prove that the health care provider was negligent, the patient will need to demonstrate the following:

  • There was a doctor-patient relationship: This is simple to prove by obtaining copies of medical records.
  • There was a breach in care: The health care provider had a responsibility to provide the standard of care, which is the care that another reasonably competent health care professional would have provided under similar circumstances. If the doctor failed to provide the standard of care, he or she may be considered negligent.
  • The negligence caused the injury: The patient must be able to prove that their health care provider’s negligent behavior was the cause of their injury. This can be difficult to prove, particularly if the patient had an underlying condition. Oftentimes, this step of the process will require testimony from an expert witness who can thoroughly review the details of the case and offer his or her medical opinion as to whether negligence was a factor.
  • The injury resulted in financial damages: Finally, the patient must prove that the injury caused him or her to suffer financial losses.

What Financial Damages May I Receive in a Malpractice Case?

If a patient suffers a serious injury as a result of a health care provider’s negligence, the consequences can be physically, financially, and emotionally devastating, particularly if the injury results in a tragic fatality. If it can be proved that the health care provider was negligent, the patient may be eligible for the following damages:

  • All medical expenses associated with the injury
  • Lost wages
  • Loss of future earning capacity
  • Pain and suffering
  • Mental anguish and emotional distress
  • Scarring and disfigurement
  • Temporary or permanent disability

If the patient died as a result of the health care provider’s negligence, the surviving family members may be eligible for the following damages:

  • Funeral and burial expenses
  • Outstanding medical bills
  • Pain and suffering that the victim suffered prior to his or her death
  • Loss of future income
  • Loss of future benefits, including health care benefits and retirement income
  • Loss of consortium
  • Loss of companionship

Baltimore Medical Malpractice Lawyers at LeViness, Tolzman & Hamilton Assist Clients with Malpractice Lawsuits

If you or a loved one suffered an injury or a serious health complication as a result of medical negligence, it is in your best interest to contact the highly skilled and experienced Baltimore medical malpractice lawyers at LeViness, Tolzman & Hamilton as soon as possible. Even if you signed a medical waiver, you may be entitled to financial compensation if it can be proved that your health care provider was negligent. Our dedicated legal team will thoroughly review the details of the case, including your medical records to determine whether your doctors failed to deliver the standard of care. If negligence was a factor, we will work tirelessly to secure the maximum financial compensation you deserve for your injuries. To schedule a free, confidential consultation, call us today at 800-547-4LAW (4529) or contact us online.


Our offices are conveniently located in BaltimoreColumbiaGlen Burnie, and Prince George’s County, where we represent victims throughout Maryland, including those in Anne Arundel CountyCarroll CountyHarford CountyHoward CountyMontgomery CountyPrince George’s CountyQueen Anne’s CountyMaryland’s Western CountiesSouthern Maryland and the Eastern Shore, as well as the communities of CatonsvilleEssexHalethorpeMiddle RiverRosedale, Gwynn OakBrooklandvilleDundalkPikesvilleParkvilleNottinghamWindsor MillLuthervilleTimoniumSparrows PointRidgewood, and Elkridge.