New York Personal Injury Law Blog » Medical Malpractice, Personal Injury


December 4th, 2006

Waiver of Claims, Before Negligent Act, Is Not A Bar To Lawsuit

In medical malpractice cases a person often signs a waiver of any claims when they agree to undergo surgery, at the same time they sign a consent. In the medical malpractice setting, this is usually one of a batch of forms shoved in front of a patient before surgery that few people even read. So the question becomes, does signing such a waiver prevent a lawsuit from being brought based on negligent conduct?
The short answer is no. New York, as well as other states, has long held that such an agreement to waive a claim of negligence is against public policy. And if the agreement is against public policy, the court won’t try to enforce it. One can not simply have a person waive a claim to future acts of negligence.
However, if a waiver is drafted smartly by a defendant it will describe various injuries or events that can happen during surgery, as part of the consent. If this is done it makes it easier for the defendant as they can point to the waiver form and claim that the person knew this was a risk of the event.
The question here is not whether the risk was known, but rather, whether due care used to avoid that known risk.

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