From adverse drug effects to extreme cases of mistaken patient identities, medical errors are the plot thickeners that keep us glued to suspenseful medical shows on prime-time TV—but not events that we ever want to happen in our own lives. Unfortunately, mistakes happen. Most medical practices require patients to sign a release of liability waiver as part of the process of consenting to treatment. When things go wrong, this leaves patients unsure about what their options are. Trial lawyer Alex Petraglia explains that you may still have options if you’ve been a victim of malpractice, even if you signed a waiver.
The Extent of the Problem
Medical errors cost the country approximately $20 billion per year, with approximately 400,000 hospitalized patients suffering preventable harm annually. Most errors come in surgical, diagnostic, medication, devices and equipment, systems failures, infections, falls, and healthcare technology. Typically, malpractice claims in hospitals are surgical errors, while outpatient care claims are generally for missed or late diagnosis—with slightly more than half of malpractice claims related to outpatient care.
Different medical practices will have different policies for how they handle a known error. “If the [need for further] care was preventable, we’re waiving bills,” said David Mayer, Vice President of Quality and Safety for MedStar Health. This isn’t just good karma: patients are less likely to pursue a lawsuit when hospitals are upfront about mistakes and assume both ethical and financial responsibility in correcting them.
But most hospitals are not this philanthropic (or proactive, depending on your interpretation of this “goodwill” gesture). Fortunately, there are instances where cases may be made for patients, even if they have signed liability waivers. These situations usually involve a breach of informed consent, negligence, or both.
Informed Consent
Typically, your waiver starts with (and is completely based on) a concept called informed consent. In this situation, you give your provider the right to perform the medical procedure and acknowledge not to sue the hospital based on the premise that your doctor has fully explained all possible risks and complications that could result as a result of the procedure. However, suppose the patient was not fully informed of the potential complications that could arise as a result of the surgery. In that case, a case can possibly be made that the patient did not truly provide informed consent, regardless of the waiver.
Negligence
We’ve all heard the stories: sometimes surgeons accidentally leave little souvenirs inside of their patients. Approximately 1,500 cases per year are estimated to occur in the United States annually. This is an example of medical negligence, and it supersedes a release of liability waiver because the waiver only protects hospitals from complications that may occur as a result of hospital employees implementing “standard of care”—the level of care that a reasonably skilled healthcare professional would have provided under similar circumstances. A case for negligence occurs either as a result of an action not taken, or as a result of the wrong action taken. An experienced trial attorney can review the facts of your situation and determine if a case can be made for medical negligence.
About Alex Petraglia
Alex Petraglia is a licensed trial attorney dedicated to the vigorous representation of his clients. He currently works at Deters Law Office and has experience in both criminal defense and civil suits. Notably, Mr. Petraglia has completed Gideon’s Promise Trial Program, focusing on perfecting trial advocacy and client care. He gives it his all in every case to protect his clients’ liberty, health, and wealth.