Signing a waiver beforehand is standard practice when you undergo a medical procedure. This waiver is a legal document that releases the medical facility or practitioner from any legal liability if something goes wrong during the procedure. By signing the waiver, you acknowledge that you understand the potential risks associated with the procedure and accept those risks. However, what if something goes wrong? You are probably wondering, Can I sue if I signed a waiver before a medical procedure?
You might still be entitled to seek compensation if you have suffered injuries or damages due to medical malpractice in New Jersey, despite having signed a waiver. Read on to learn more about medical waivers and what to do if you believe you are the victim of medical malpractice. If you think you are the victim of malpractice—and you signed a medical waiver—contact immediately one of our medical malpractice lawyers.
What Is a Medical Waiver?
A medical waiver is a legal document you sign before a medical procedure. Typical waivers include information such as:
- What the medical procedure entails,
- What you are responsible for cost-wise, andsue
- Potential risks that are inherent to the procedure.
The most important aspect of the waiver is the statement that says you cannot sue the provider and facility should you suffer injury as a direct result of one of the described risks.
This statement releases the medical facility or practitioner from legal liability should something go wrong during the procedure. By signing the waiver, you acknowledge that you are aware of the potential risks and accept those risks. Medical waivers protect medical practitioners and facilities from lawsuits in the event of an adverse outcome.
Do Waivers Stop You From Suing?
Now that you know what a medical waiver is, you are probably wondering, Can I sue if I signed a waiver before a medical procedure? The answer is, in some circumstances, yes, you can. If you signed a waiver before undergoing a medical procedure, it is not an absolute bar to taking legal action should something go wrong. A waiver is not an absolute defense against legal action. However, the presence of a waiver may make your case more challenging, as it is evidence that you were aware of the risks associated with the procedure.
There may be circumstances where you can still file a lawsuit and seek compensation for your injuries. The key is whether your injury is related to one of the known risks on the waiver or something else. Also, medical providers and facilities cannot write blanket waivers that absolve them of things that typically qualify as medical malpractice. That means you might be able to challenge a seemingly airtight waiver in court.
Other reasons waivers might not be enforceable include the following:
- Signing under duress,
- Lack of capacity,
- Unenforceable because it is against public policy,
- Fraud or misrepresentation, or
- Unconscionability.
For example, a minor or someone who lacks mental capacity cannot sign a waiver. Please speak with one of our experienced malpractice attorneys to learn more about why your medical waiver might not be enforceable.
Informed Consent and Negligence
When you sign a waiver, you are giving informed consent. That means you are acknowledging that you know the potential risks of the procedure and consent to continue. Without waivers and informed consent, medical practitioners and facilities could face significantly more lawsuits for issues caused by known risks.
However, even if a patient gives informed consent, negligence can still occur when a medical practitioner fails to provide the required level of care and the patient is injured. Medical negligence can happen at any stage of medical treatment, from the initial diagnosis to post-surgical care. Waivers will not protect medical providers from claims of gross negligence, such as operating on the wrong person or body part.
Proving Negligence
Proving negligence in a medical malpractice case can be challenging, but it is not impossible. To bring a successful malpractice claim, you must demonstrate that:
- The medical practitioner or facility was required to provide you with care that meets the applicable standard of care;
- The medical practitioner or facility failed to provide the required level of care;
- Your injury would not have occurred if the provider or facility had provided proper care; and
- This failure resulted in your injury or damages.
Proving medical negligence requires gathering solid evidence, such as medical records, witness statements, and expert opinions. You may need to hire a medical expert witness to provide testimony and evidence to support your claim. New Jersey law also requires you to obtain an affidavit from a medical expert stating there is a reasonable probability that malpractice caused your injury to move forward with your claim.
Understandably, some victims might be concerned about how to prove negligence if the mistake happened while they were under anesthesia. Even if you were unconscious, there are ways to prove negligence. Evidence of the error might be in your records, especially if the error was related to an incorrect anesthesia or medication dosage. There were likely also witnesses in the operating room, such as nurses and other staff members. These people might not come forward voluntarily for fear of losing their jobs. However, your lawyer can identify who might have been in the operating room and subpoena reluctant witnesses.
Compensation for Medical Malpractice Cases
You might be entitled to compensation if you have suffered injuries or damages due to medical malpractice. Compensation in medical malpractice cases can include:
- Reimbursement of the surgical procedure,
- Related past and future medical expenses,
- Pain and suffering,
- Lost wages,
- Future loss of earnings capacity, and
- Loss of consortium.
The amount of compensation you may be entitled to will depend on several factors, including:
- The extent of your injuries,
- The amount of your damages, and
- The circumstances of your case.
An experienced medical malpractice attorney can help you navigate the legal process and gather the evidence you need to maximize your potential settlement.
Suing for Medical Malpractice After Signing a Waiver
Signing a waiver before a medical procedure does not necessarily prevent you from taking legal action. If you believe you are a victim of medical malpractice, our skilled legal team at O’Connor, Parsons, Lane & Noble, LLC stands ready to help. You have the legal right to seek justice for medical negligence. We have years of experience helping victims of medical malpractice in New Jersey fight for the compensation they deserve. If you believe you were injured after signing a medical procedure waiver, please schedule an initial consultation with our office so that we can evaluate your case and explain your available legal options.