Negligence Waivers and How They Affect Your Medical Malpractice Claim

Most of us are familiar with the stack of medical documents handed to us at the doctor’s office. Many people start filling in details and signing papers just to get them submitted without knowing what they actually mean. 

However, if you then experience an issue that could be medical malpractice, all those documents start to feel much more important. That said, can you sue for malpractice if you have already signed a waiver? 

Negligence Waivers

Medical malpractice waivers are not enforceable when they involve professional negligence that goes against public policy.

These waivers typically have you agree that you understand the risks associated with the medical procedure you are undergoing and that you will not hold the doctor responsible for any losses that could result. In other words, you are releasing them of liability. 

When are negligence waivers enforceable, and when are they not?

Waiving your legal right to sue in a medical malpractice claim before receiving medical care goes against public policy, and as a result, most waivers are not enforceable.

The potential of a medical malpractice claim ensures that medical professionals deliver the best care. After all, it doesn’t make sense that just because you signed a waiver, they no longer have to take precautions and care when giving treatment. Many patients sign these waivers because they feel they won’t be able to get the medical care needed if they don’t. 

However, just because you can claim negligence doesn’t guarantee you will succeed—you must still prove all elements of medical malpractice occurred. 

It can be difficult to argue against a waiver that states you gave informed consent or that you knew the risks before you received the treatment. But it is possible that the medical professional did not take the proper steps to provide adequate informed consent. Many medical malpractice claims involve a lack of informed consent. 

Case Law that Prohibits Medical Malpractice Waivers

1. Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963). A hospital may not require a release of liability before treatment. An agreement between a hospital and an entering patient affects the public interest and that, in consequence, it must be invalid under Civil Code section 1668.
2. Cudnik v. William Beaumont Hospital, 207 Mich. App. 378 (Mich. Ct. App. 1994). An exculpatory agreement signed before the patient receives medical treatment is invalid as it is against public policy.
3. Ash v. NY Univ. Dental Center, 564 N.Y.S.2d 308 (1990). Exculpatory agreements are against public policy, and invalidating them protects the welfare of its citizens to ensure better medical care.
4. Smith v. Hospital Authority, 287 S.E.2d 99 (Ga. Ct. App. 1981). Agreements may not relieve the practitioner from the duty to exercise reasonable care and skill in the performance of his practice. The signing of these agreements as a complete defense against negligence is unenforceable.

Final Thoughts

If all of this seems confusing or if you still aren’t sure if the waiver you signed will keep you from making a medical malpractice claim, get the help of an experienced medical malpractice attorney. Improper care or treatment should not be allowed, and you deserve compensation if a medical practitioner acted in a negligent manner that has caused you additional harm.