My wife is having laparoscopic surgery to remove an ovarian cyst. The doctor we're using has a good reputation as does the hospital. However routine it may be, the doctor's paperwork involves signing a consent form that contains a clause releasing the doctor and hospital from "liability and responsibility due to any complications whatsoever that arise." Question 1 : Is that normal and should I be concerned? Question 2 : If something were to happen, is that release airtight or would we retain the right to sue them in case of legitimate malpractice ?
2 Answers from Attorneys
Although I am not sure the release is airtight, I would recommend you not sign such a release. If necessary, go someplace else to have it done. Alternatively, state in release that a complication is not "negligence."
Prospective negligence cannot be waived. However, fo the all the things you are warned about that can go wrong, you likely could not pursue a claim involving any of them that occurred in the ordinary manner of handling such a procedure. You likely would not have any of those claims without the release. Bad results are not negligence and you could not pursue that either. I would not be so worried about the clause, which is likely unenforceable if some true malpractice occurs.