Medical negligence is a breach of a doctor’s required standard of care that causes harm or injury to a patient.

Medical malpractice, on the other hand, is a very complex legal issue. If a doctor does something or fails to do something that any other reasonable doctor would not, and it causes an injury to the patient, that may be considered medical malpractice.

In medical malpractice claims, patients usually have to show that the doctor and the patient were in a doctor-patient relationship, the doctor breached the standard duty of care, and the breach of care resulted in an injury to the patient. If the injured patient can prove all elements of the claim, a jury may award the patient damages to compensate for their injuries.

What is a Waiver of the Right to Litigate?

Waiving the right to litigate a medical malpractice claim means if you were injured as a result of medical malpractice, you do not have the right to take your healthcare provider to trial. Patients often waive their right to litigate when their contract to provide medical services contains a provision for arbitration instead of litigation.

An arbitration agreement still allows a patient to hold the healthcare provider responsible for injuries sustained. However, the issue of responsibility is decided by an arbitrator instead of going to trial. However, general arbitration agreements usually do not constitute a waiver of the right to litigate. A waiver of the right to litigate must be stated in clear and unmistakable language.

Can I Be Required to Waive the Right to Litigate?

Many healthcare providers include the waiver as part of the contract to provide medical services, leaving the patient with only the choices of accepting the waiver provision or finding a different healthcare provider. In fact, many patients do not realize they have waived the right to litigate until they are injured and try to sue their healthcare provider.

In some states, patients who receive healthcare from a health maintenance organization through an employment-based benefits program may have their right to litigate waived by the employer. However, as with an individual health plan, the employee has the ability to opt-out of that particular healthcare provider’s service entirely.

What is Informed Consent?

Informed consent is a patient’s right to receive information and ask questions about recommended treatments so that they can make well-considered decisions about care. Patients have the right to full disclosure of relevant information, including the risks of the procedure and any available alternatives. Before giving consent, the patient must be legally competent to make a voluntary, informed decision.

Does Consent Waive Liability for Medical Malpractice?

Most medical procedures carry some form of risk. When a patient signs an informed consent form, they acknowledge that they understand the risks of the proposed treatment. It’s important for patients and families to research the risks of any medical interventions carefully. Informed consent is not a liability waiver. Doctors, hospitals, and health care providers cannot force you to agree to a medical malpractice liability waiver. Patients may accept the risks of an operation or medical treatment, but that does not mean they accept the risk of medical malpractice.

Some waivers allow doctors or medical clinicians to take photos or videos of medical procedures to use for educational purposes or for marketing materials, such as posting them on the clinic’s website.

Some legal waivers may include language like:

  • I understand the risk of complications during the procedure
  • Risks of this procedure may include heart attack, stroke, brain damage, or death
  • No representations have been made regarding the success of this procedure
  • Complete release and bar to any and all claims resulting from the procedure
  • The consent, waiver, and release shall be binding on the patient
  • Satisfaction is not guaranteed

Waivers are often overly broad and try to include language that bars any type of injury or loss. Some waivers include legal protections that are not allowed by state law. Frequently, businesses use forms or contracts they find and copy online, even if they are not appropriate or tailored for another state’s laws. Just because you signed a waiver does not mean the waiver is enforceable in court.

Some waivers are illegal under public policy. In some states, doctors are limited in their ability to disclaim liability. There may be public policy reasons for finding a waiver unenforceable because it is not beneficial for the greater good of the public. Waivers that are overly broad may be unenforceable.

Part of a waiver may include a release for claims of inherent risks of the medical procedure. Any medical procedure carries some risk. For example, during surgeries, there is a risk of bleeding. Minor treatments may have limited risks, but complex medical procedures may have more serious risks.

Not all medical injuries are eligible for medical malpractice claims. If a patient suffers an injury due to an inherent risk, it may have been an accident and not caused by any negligence or breach of the standard of care by a doctor. However, whether the risk was inherent or caused by a medical error may be a question of law and can be left up to a judge or jury to decide.

What Happens After a Medical Malpractice Incident?

If a patient was harmed after signing an informed consent waiver, they still might be eligible to sue a negligent doctor or healthcare provider for medical malpractice. Many questions need to be answered after an incident of medical malpractice, including:

  • Was the patient’s initial diagnosis accurate?
  • Did a doctor or medical provider clearly and accurately explain the risks associated with the operation or medical treatment?
  • Were any serious mistakes made during the treatment?
  • Did all medical professionals act with adequate professional skill and care?
  • Did a doctor perform any treatments that were not agreed upon initially?
  • Is the patient’s current condition a risk outlined in the consent agreement?
  • Was the patient able to fully provide informed consent at the time the agreement was signed?

Any time a surgery, operation, or other medical procedure goes wrong, it is wise to reach out to an experienced personal injury lawyer as soon as possible. A lawyer can do a complete and full investigation into your case to discover exactly what went wrong.

Do I Need a Personal Injury Attorney?

Any indication that a doctor acted negligently could be a reason to pursue a medical malpractice case, even if you gave consent. Additionally, the failure of a medical professional to educate a patient on the risks of a procedure and ask for their consent before performing the treatment is almost always considered a case of medical malpractice.

The rights and procedures under arbitration are very different from those under litigation. Suppose you have a problem regarding a waiver of the right to litigate a medical malpractice claim. In that case, it is best to speak to a personal injury attorney with experience in arbitration.

Consider using LegalMatch’s services to narrow down your search for a personal injury lawyer in your area today. LegalMatch can help you select the issues in your case and schedule a free consultation with an attorney in your state or city. LegalMatch’s services are always 100% confidential.