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Can I Sue for Medical Malpractice if I Signed a Waiver of Liability?

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Most patients are required to sign a waiver of liability and other release forms prior to receiving medical treatment or undergoing surgery. Those waivers warn patients of all the risks associated with the procedure and verify their informed consent.

But can you still file a medical malpractice lawsuit if you signed a waiver of liability? Can you sue a doctor for medical malpractice if you suffered harm but signed a pre-injury release of liability in Florida?

That depends on the specific circumstances involved in your case. It is imperative that you consult with a medical malpractice attorney to determine whether you still have a right to sue your doctor for worsening your condition or causing a new injury.

Waiver of Liability and Informed Consent

Many hospitals in Florida require patients to sign a waiver of liability before performing certain procedures. The waiver may state that you waive your right to bring legal action against the doctor who provides the treatment or the hospital for any harm caused by the risks that you were made aware of.

The waiver will also verify that you are giving informed consent to receive the treatment. The Florida Statutes Section 766.103 (the so-called “informed consent law”) requires that the patient is informed of:

  1. The type and nature of the proposed treatment or procedure;
  2. The substantial risks, side effects, and hazards inherent in the medical treatment or procedure; and
  3. Any reasonable and medically acceptable alternatives to the proposed treatment or procedure.

Informed consent is valid only if the patient consents to the treatment or procedure after learning these three things.

Can You Sue for Medical Malpractice After Signing a Waiver of Liability?

In many cases, a patient who signed a waiver of liability before the procedure or treatment that caused their injury will lose their right to sue the doctor or hospital for medical malpractice. However, there are certain exceptions to this general rule, which is why you may still be able to file a medical malpractice lawsuit despite signing a pre-injury release of liability:

  • The waiver of liability did not warn you of the injury that you suffered;
  • The waiver was too vague, ambiguous, or otherwise unenforceable in the first place;
  • You never provided informed consent; or
  • You suffered harm because the medical professional was grossly negligent or guilty of intentional misconduct.

Previously, the Fourth District Court of Appeal of Florida held that an agreement signed by a patient before a medical procedure could not be enforced because it was “too vague and ambiguous” (Brooks v. Paul 219 So. 3d 886 (Fla. Dist. Ct. App. 2017)).

Gross Negligence and Waivers of Liability

In some cases, patients get hurt while receiving medical treatment or undergoing surgery when the medical professional performing the procedure is grossly negligent. A waiver of liability may protect doctors and hospitals from lawsuits when a patient is injured due to general negligence, or the patient sustains the injury he or she was warned about in the waiver.

However, a release of release does not protect grossly negligent healthcare providers. A doctor may be grossly negligent when their conduct falls below the accepted standard of care.

As you can see, there is no guarantee that signing a waiver of liability will prevent you from filing a medical malpractice lawsuit. It is vital to consult with a Lakeland medical malpractice attorney at The Turnbull Firm to discuss your particular situation and determine whether you have a right to sue a doctor despite signing a waiver before the procedure. Call at 863-324-3500 to schedule a free, no-obligation consultation.

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