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suing after signing surgery waiver

Before every surgical procedure, the patient will be required by the doctor, hospital, or medical office responsible for the procedure to sign a document outlining the patient’s rights regarding the procedure. This document is called a waiver. This waiver will, among other things, dictate that the patient cannot sue the surgery provider under certain circumstances.

Unfortunately, the language used in many waivers makes it difficult to determine whether a patient can still sue the provider in the event of medical malpractice or negligence.

What Are Waivers?

Signing a Waiver Before Surgery: Can You Still Sue?

“I was under the impression that I couldn’t sue because of the waiver I signed before my surgery,” said Kim, after undergoing a botched spine surgery. “But I was in extreme pain, using up all the savings I’d saved over 10 years to move away with my husband, and I knew that this wasn’t fair. I couldn’t let a mistake made during surgery steal away all the dreams I had for my life. I knew I at LEAST had to sue.”

The head surgeon who operated on Kim left a surgical tool in her back. The tool pinched nerves along her spine, causing extreme pain that left her bedridden, and eventually caused postoperative infections. When she returned the next day, physicians found the foreign body lodged in her backside and immediately removed it. However, they were quick to tell her that she could not sue or seek financial compensation at all due to the conditions in her waiver.

“I knew it was all BS,” said Kim. “And when I called Sobo & Sobo, my attorney immediately told me that was a straight up lie. Of course you can sue for gross incompetence, no matter what kind of waiver you sign. Doctors have to be held accountable for their mistakes, and patients have the right to seek justice for their suffering. Thank God for the people at Sobo & Sobo—they have the backbone to fight for their clients in any situation, no matter the obstacles.”

This is a true story. We’ve changed the name and photograph of our client to protect her privacy.

A waiver is essentially a consent form that every clinic or hospital will require a patient to sign before receiving medical care or attention. A standard waiver will outline:

  • What the surgery will entail
  • What the patient is responsible for in terms of costs (usually)
  • The potential risks inherent in the surgery
  • A statement saying that the patient cannot sue the doctor or medical office if they suffer injury as a direct result of one of the risks described

For instance, a patient at a hospital for heart surgery may be informed that potential complications can include death, serious disability, further injuries, loss of strength, and so on. These are risks inherent in the surgery since even modern medicine is not perfect and many surgeries are still quite dangerous, even if they’re worth performing.

By signing a medical waiver, a patient shows “informed consent”. This legal term means that the patient was informed about the potential risks and still gave their consent for the surgery, operation, or other medical procedure or care.

Informed Consent vs Negligence

However, informed consent does not automatically shield doctors and other medical organizations from being accused of negligence, which is a key component of medical malpractice cases. The difference lies in the risks outlined in the waiver beforehand, plus “reasonable” risks that may be assumed to be inherent in the procedure or surgery, versus what injuries were actually sustained.

Hypothetical example: after signing a waiver for non-ocular surgery, a patient loses their eyesight. This was not covered in the informed consent waiver they signed, and it’s likely a result of a preventable mistake. Thus, this injury may qualify as the subject of a medical malpractice lawsuit

Another way to look at the difference between “waived” and “non-waived” injuries or risks is whether or not the risk of a specific injury was inherent in the surgery. For example, if a doctor fails to stitch a patient up properly after surgery, that action can be classified as medical negligence.

No waiver can claim that patients cannot sue their doctors for gross incompetence.

Is Suing for Medical Malpractice Still Possible If the Patient Signed a Waiver?

Yes. But because determining whether the injury was covered under the terminology of a waiver, and because proving malpractice cases requires in-depth investigations and evidence gathering, the assistance from experienced medical malpractice attorneys is crucial to the success of each case.

Some doctors and medical offices will create waivers with very strict but explicit language designed to prevent patients from suing them, even for actions that would reasonably fall under medical malpractice. A medical malpractice attorney can help simplify the language in these waivers to better a victim’s understanding of the terms and help determine the value of their case.

What if a Waiver is ‘Airtight?’

If a doctor or medical office has a patient sign a waiver that attempts to take away their rights to sue for medical malpractice or negligence–in other words, if it’s ‘airtight’–all is not lost. New York state does not permit healthcare providers to take away the rights of their patients. Even the government is not immune to being sued.

It’s a matter of public policy. A victim of this type of malpractice should contact New York medical malpractice attorneys to get their expertise, as they can point out flaws in the language or show that the waiver was irresponsible or inappropriate. 

Proving Negligence vs. Risks Covered Under a Waiver

In a nutshell, any medical malpractice case with a waiver involved will require proving that the:

  • Victim’s injuries or damages were directly caused by the actions of a doctor or hospital
  • The injuries or damages came from actions not reasonably covered under “informed consent” risks

In most cases, this will involve collecting medical files, seeing copies of the waiver(s) signed by the patient, and proving medical malpractice or negligence by showing that:

  • The doctor in question deviated from an acceptable standard of care
  • The injuries came from that deviation
  • The damages came from those injuries

Minors and Waivers

According to New York law, minors are never liable for any contracts they sign. Therefore, if someone under 18 signed a waiver for surgery (itself an example of gross incompetence on the part of the medical professional), they (or their parents) can still sue the doctor or hospital.

Furthermore, parents who sign a waiver for their child are not bound by the waiver if the minor is injured or killed. For instance, if parents signed a waiver for their child’s surgery, but that child then received an injury, they could sue the doctor or hospital regardless of the waiver’s language.

Compensation for Medical Malpractice Cases

Ultimately, those injured by medical malpractice during or after a surgery should pursue compensation through a medical malpractice case. Compensation can cover a variety of medical costs and other expenses, including:

  • The cost for the surgery itself
  • Costs for past and future medical bills
  • Costs for ongoing medical bills, particularly in regard to treatment deemed necessary for the injuries sustained from the medical malpractice in question
  • Damages for pain and suffering or from loss of quality of life
  • Damages for loss of income if the victim can no longer go to work

Contact New York Medical Malpractice Attorneys Today

The language of a surgical waiver can seem impenetrable and intimidating, and it’s often drafted that way on purpose to protect medical professionals and hospitals. But medical malpractice attorneys like those at Sobo & Sobo are experienced with navigating these kinds of waivers and have over 50 years of winning these types of cases under their belts. 

Victims who were the subject of gross medical negligence should not surrender their attempts at a lawsuit. Instead, they should contact Sobo & Sobo today by calling 855-468-7626 for a free consultation.