A common source of confusion in potential medical malpractice lawsuits arises from the fact that a patient mistakenly believes that if they have signed a “consent for surgery” they have “signed away” their right to sue if the surgeon, or any of his or her subordinates on the surgical team, for an act of malpractice. As will be explained on this page, you retain the right to bring a legal action against the surgeon and of his or her subordinates who may have played a role in the alleged act of malpractice.

“Consent” versus “Waiver”

When you signed the operative consent form, you were acknowledging that the surgeon has explained to you what the operation would be and the potential risks involved with that operation were also explained to you. You thus gave your “informed consent” to undergo the surgery. In a way, signing a consent form is akin to the signing of a contract between you and surgeon.

In this contract analogy, you (or your health care insurance) are promising to make a payment to the surgeon who, in turn, is agreeing to use his or her skills in a manner that will help you in some way. Central to this “contract model” is the fact that the surgeon is making an implied warranty that he or she will not make any mistakes or omissions during the operation or while you are under the surgeon’s care. If the surgeon subsequently fails to provide the expected level of care, and you are harmed in some way by that failure, the contract has been breached and medical malpractice may have occurred.

On the other hand, a waiver is a document that acknowledges the risks or danger of undertaking a course of action have been explained to one party and that party, being fully aware of the potential dangers involved, elects to continue. A surgical consent thus contains language similar to a waiver in that it explains the risks involved with an operation and, with full knowledge of those risks, you voluntarily elected to undergo the operation.

Breach of duty and liability

In the question under discussion, once a surgeon holds himself or herself to be available for the treatment of others, the surgeon also implies that he or she is qualified in their area of medical practice. In doing so, that surgeon will owe a duty to exercise good judgement and employ all reasonable safety in the care to his or her patients. If the surgeon then fails to provide a level of care that is consistent with the care that could be expected of other physicians with the same level of education and experience, malpractice may have occurred and the physician may be liable for any damages that may be claimed by the victim of that malpractice.

Did I waive my right to sue for malpractice?

So long as a potential complication of surgery is listed in the consent form, malpractice has not occurred since you were aware that the complication was a possibility and you signed the consent form to acknowledge that awareness. But can a signed consent form be used as a defense against a malpractice claim?

The answer is “no,” a signed consent form is not a defense to a medical malpractice claim because the common law has always held that you cannot consent to suffer an injury at the hands of another, even if there is an apparent assumption of risk on your part. Since the consent form that you signed did not explain that the surgeon would be negligent and that the surgeon’s negligence would lead to an injury, the fact that you signed a consent form cannot be used as a defense to a lawsuit alleging medical malpractice.

To return to the original question, we have seen that a signed consent in and of itself is not a defense to a lawsuit alleging medical malpractice. However, it remains your responsibility to prove, to a jury’s satisfaction, that malpractice occurred and that you suffered an injury that was a direct result of the alleged malpractice.

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