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Will Signing a Waiver Impact Your Illinois Medical Malpractice Case?

April 12, 2021

Signing a waiver may not impact medical malpractice cases in Illinois, such as if a person was uninformed or when a health care provider was negligent. Prior to a medical procedure, a patient signs a waiver to verify that he or she is aware of the risks that come with the treatment and is providing informed consent for the procedure to be performed. Nevertheless, it does not give health care providers the freedom to deviate from the expected medical standard of care.

When Can One File a Malpractice Claim After Signing a Waiver?

A waiver generally protects the doctor or hospital from lawsuits due to complications and risks associated with a procedure. For example, a waiver will protect a doctor from a lawsuit when something goes wrong that is beyond his or her control, such as an organ transplant rejection.

Waivers do not cover preventable injuries that result from healthcare providers offering substandard medical care. A patient can take legal action despite having signed a waiver in the following situations:

Uninformed Consent

When obtaining informed consent, a doctor has to give a patient all the necessary information that will allow him or her to make an informed decision and properly provide informed consent. The doctor should include information about:

  • The diagnosis
  • Purpose and nature of the recommended interventions
  • Expected benefits
  • All treatment options
  • The risks (like side effects and infections)

In Illinois, the language in an enforceable waiver of liability must be clear, explicit, and concise. A patient may have signed a waiver but was not adequately informed of the necessary information about his or her treatment. An Illinois medical malpractice attorney can determine if the doctor did not properly obtain informed consent from the patient.

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For example, a patient supposed to undergo surgery may have signed a waiver without the doctor explaining his or her situation and the risks and benefits associated with proceeding versus not proceeding with the procedure. Such a patient has grounds for a medical malpractice lawsuit because his or her consent was uninformed.

Gross Negligence

A waiver does not protect health care providers from legal action if they cause harm because of negligence. A health care provider is negligent if that provider neglects to do what a reasonable provider in the same position and with the same experience and education would have done.

Actions of negligence include failing to timely diagnose a condition, failing to timely and properly respond to test results and/or a patient’s condition, and failing to use reasonable care during a procedure, etc.

About The Author

Photo of Jeffrey M. Goldberg
Attorney Jeffrey M. Goldberg, founder of Goldberg & Schulkin Law Offices, has spent his entire professional career handling cases involving birth injury, medical malpractice, product liability, aviation and related accidents.