Does Consent Waive The Right To Sue For Medical Malpractice?

Consent waives the right to sue in some instances, but not others. In anticipation of many medical procedures, medication plans, and courses of treatment, doctors require their patients to sign a consent form of some sort. Usually, these forms describe the intended treatment and detail the potential risks of proceeding.After signing such a form, some patients may feel that they must accept whatever side effects arise from the agreed-upon treatment. However, this is not entirely true—a patient can still pursue legal action if they developed an illness or injury and believe medical malpractice to be the cause (even if they signed a consent form).

What Is Informed Consent?

The term “informed consent,” in a medical setting, defines a written agreement between a doctor and their patient in which the patient consents to treatment which is outlined in complete detail by the doctor. 

To be a true example of an informed consent agreement, the doctor must describe:

  • The patient’s condition
  • The type of treatment they are recommending and why they believe it is the best option
  • All of the effects (both positive and negative) that could occur with or without the recommended treatment

In general, informed consent involves the following three elements, as detailed below:

The Right to Full Disclosure

Patients have the right for all pertinent information to be fully disclosed regarding their healthcare provider’s recommended treatment. This includes the treatment’s description, its known risks and complications, and available alternatives, if any.

Patient Competence

Before consenting to treatment, you must be legally competent to make decisions, meaning you have not been found incompetent by a court due to a mental condition. You also must not be intoxicated or in a coma.


Your decision must be voluntary. If a health provider coerces you into agreeing to a treatment, your decision would be considered involuntary. Moreover, a decision enacted under intimidation or force does not qualify as giving informed consent.

What Is Medical Malpractice?

Medical malpractice is a potentially complex legal issue that occurs when a healthcare provider neglects to provide appropriate treatment, fails to take proper action, or administers substandard treatment that causes harm to a patient. Malpractice or negligence typically involves a medical error concerning diagnosis, treatment, medication, or aftercare. 

In a medical malpractice claim, you, as the patient, must demonstrate you were in a doctor-patient relationship with a health provider who violated their professional obligation to you, and their actions/inaction resulted in your injury. If you can prove all elements of a malpractice claim, you may be awarded damages to compensate you for your injuries. 

Under Md. Code, Cts. & Jud. Proc. § 5-109, a medical malpractice victim must file a claim within five years of the injury’s date or three years of the injury’s discovery, whichever comes first. 

Informed Consent and Medical Malpractice

A consent form does not waive liability, and does not eliminate the option of pursuing damages for medical malpractice. If a patient signs a consent agreement, proceeds with treatment, and then suffers some kind of ailment as a result, a medical malpractice suit is not out of the question. Our attorneys can evaluate the details of your circumstances and determine if you have a case.

During the investigation phase, consider: 

  • Did the doctor perform any treatment that was not agreed upon initially?
  • Were all benefits, all risks, and the complete treatment plan disclosed in the consent form?
  • Is the patient’s current condition a risk that was outlined in the consent agreement?
  • Was the patient in a condition to provide fully informed consent at the time the agreement was signed?

Any indication that the doctor acted negligently could be a reason to pursue a medical malpractice case, even if consent was given. Conversely, the failure to ask a person for their consent and educate a patient on the risks of a procedure before performing treatment can almost always be considered a case of medical malpractice.

Why do Health Providers Ask for Informed Consent?

Healthcare providers require informed consent forms to protect themselves, but not necessarily from a medical malpractice claim. Informed consent is mainly a medical ethics issue rather than a legal matter. 

Doctors have professional responsibilities and are obliged to communicate and allow patients to participate in their own healthcare fully. The informed consent form also protects you and ensures you’ve been provided with complete information. 

What Is a Waiver of the Right to Litigate?

If you waive your legal right to litigate a medical malpractice lawsuit, you will not be allowed to sue your health provider for causing harm to you. Patients who waive this right may do so unintentionally when signing a contract for medical services that includes an exceptional condition for arbitration rather than litigation.

An arbitration provision still permits a patient to hold a doctor liable for injuries incurred, but an arbitrator handles the matter instead of a court. However, general arbitration agreements typically do not include a waiver of the right to litigate—that stipulation must be implicitly stated and unambiguous. 

Many healthcare professionals include such a waiver as an element of their contract to provide medical services, leaving the patient no choice but to accept the provision or find another health provider. However, many patients remain entirely unaware they have waived their right to litigate until they have been injured due to medical malpractice and attempt to sue.

Call Our Team Today to Discuss Your Medical Malpractice Case

Contact Brown & Barron, LLC if you have a medical malpractice case. Call us to speak with us 24/7 and obtain your free consultation. You can also contact us through our online form. Our medical malpractice lawyers can fight for you.

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