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Does a Medical Release Prevent Liability for Negigence by a Doctor?

Does a Medical Release Prevent Liability for Negigence by a Doctor?

Q: When should surgical consent be signed?

Surgical consent should be signed well before the procedure, usually during a pre-operative appointment. This allows the patient to ask questions and fully understand the procedure, risks, and alternatives. Signing too close to the surgery may not provide adequate time for informed decision-making.

Full question:

My son is having outpatient surgery in a few weeks. The hospital requires me to sign a form entitled 'Consent to Operation, Anesthetics, or other Medical Services.' I am a little concerned about the last paragraph. 'The operation/procedure has been fully explained to me by 'doctor's name' and I understand the consequences that may result from it. As an adult, without reservation or duress, I hereby release and hold harmless of any liability the 'hospital' and/or any physicians, technicians, nurses or other authorized personnel participating in the medical procedure.' The doctor was unable to explain the meaning of this paragraph to me, and I have been unable to find an explanation online. Please explain 'any liability.' I am fairly certain I understand, but I just want to make sure. This does not mean hold harmless from negligence, correct? I am looking for a thorough explanation so that I understand my rights before I sign this form. Thank you!

Category: Contracts
Subcategory: Releases
Date: 04/07/2025
State: Mississippi

Answer:

The language you quoted does not appear to contain an exception for negligence, however, a court may find it unenforceable on policy grounds to protect against negligence. A waiver or release gives up a right, such as releasing one from his/her liability for harm or damage that may occur from performing under a contract, or participating in an activity. It is generally not effective to protect a person from liability for intentional acts or gross negligence. It is a matter of subjective determination for the courts, based on all of the facts and circumstances involved.

For further discussion, please see:

http://www.d.umn.edu/~tbeery/hper3100-1/Waivers-%20Are%20they%20worth%20the%20paper%20they%20are%20written%20on.pdf
http://www.redorbit.com/news/health/504158/the_legal_trap_in_surgical_medical_releases/index.html

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

What happens if a patient doesn't sign a consent form?

If a patient does not sign a consent form, the medical provider typically cannot proceed with the treatment or procedure. Consent is a legal requirement that protects both the patient and the provider. Without it, the provider may face legal issues, and the patient may not receive the necessary care. However, in emergencies where immediate treatment is needed to save a life or prevent serious harm, consent may be implied.

What procedures require a consent form?

Consent forms are generally required for invasive procedures, surgeries, anesthesia, and certain diagnostic tests that carry risks. This includes operations, biopsies, and any treatment that may have significant side effects. The specific requirements can vary by state and facility, so it's important to check with your healthcare provider.

What are the 5 requirements of consent?

The five requirements of consent typically include: 1) Competence - the patient must be mentally capable of making decisions; 2) Disclosure - the patient must be informed about the procedure and its risks; 3) Understanding - the patient must comprehend the information provided; 4) Voluntariness - the decision must be made freely, without coercion; 5) Agreement - the patient must explicitly agree to the procedure.