This issue keeps coming up in discussions we are having with potential clients or current clients, so we are posting this to try to clear up what seems to be a common misconception among many people we have spoken with. Obviously there is a decent amount of information to discuss here, but, as a general statement: the forms you sign prior to going in to surgery do not waive your right to sue for malpractice. Generally speaking, these forms are related to your “informed consent” to proceed with the surgical procedure. We say “generally speaking” because we do not have the form you are signing in front of us, so we cannot know exactly what it says or what you are signing. However, we have never seen a consent form attempt to waive a right to sue for medical malpractice or medical negligence. Regardless, any such attempt to waive this right to sue for medical negligence would almost certainly be held to be unconscionable and disregarded. However, we will save a discussion regarding unconscionability for another day.
At this point, it seems appropriate to give a quick explanation of “informed consent” versus “medical negligence” or “medical malpractice.”
Medical negligence or malpractice arises from an act, or a failure to act, on the part of a medical professional during the course of medical treatment. Examples of this would range from a failure to diagnose a disease or condition, failure to appropriately treat such a disease or condition, or some act arising during a surgery or procedure, such as nicking an artery, intestine, etc.
Informed consent is a process of communication between a patient and physician over the course of diagnosis and treatment that results in the patient’s understanding and authorization to undergo a specific medical treatment. Essentially, informed consent involves your doctor adequately explaining to you the potential risks and benefits of any treatment or procedure so you can make a decision whether or not to undergo that procedure.
That last example we gave under medical negligence (nicking an artery, intestine, etc.) can help to explain the difference between the two, and let you know what you are waiving when you sign consent forms. Informed consent, and the consent forms you sign informing you of the risks you are waiving, means that you cannot sue your physician for certain risks that are inherent in the procedure. For example, if a surgeon nicked an artery during the surgery this could fall into either of these two categories. If the artery was a major artery in its known location and the standard of care in this procedure involves isolating and protecting that artery to prevent it being nicked, then the surgeon would commit an act of medical malpractice by failing to do those acts and nicking the artery.
However, there could be a situation where nicking such an artery is an inherent risk in the procedure. Let’s say the anatomy of each patient varies significantly or that your artery was in a place where one would not normally expect it to be. In this instance, such a risk should be explained to the patient prior to the procedure as part of the informed consent process. In this situation, this is a risk that anyone would face in such a surgery and each person must weigh prior to making a decision to have that surgery performed.
Of course, you should certainly read all of these forms to be sure they are accurate and do not contain risks or information which have not been discussed with you. This is because (1) you will not be adequately informed regarding your procedure and won’t be able to make an appropriate decision regarding whether or not to have the procedure, and (2) if one of these undisclosed risks does occur, you will be facing an uphill, potentially insurmountable battle to disprove this recording bearing your signature.
Bottom line: signing consent forms prior to surgery does not prevent you from pursuing a medical negligence case if something goes wrong in the procedure as a result of the negligence of one of the medical professionals involved.
If you or a loved one believe you are the victim of medical negligence or malpractice, or have questions about the difference between informed consent and medical malpractice, please contact CLARK MASON ATTORNEYS.