Signing a waiver or consent form before a medical treatment or surgical procedure may or may not impact your legal right to file a medical malpractice lawsuit if something goes wrong. Generally, an informed consent lawsuit relies on an assumption of risk defense, which does not hold medical defendants responsible. However, in Illinois, medical waivers are not automatically enforceable, even when patients sign a waiver or consent form before treatment.
If you’re injured by a medical procedure in Illinois, call Ankin Law in Chicago at 312-600-0000. We offer a free consultation to discuss your case.
What Is the Role of Informed Consent in Medical Procedures?
When patients get medical treatments and surgical procedures, they are asked to sign waivers and consent forms. These waivers are legal documents that inform patients of the benefits as well as the inherent risks of a particular medical procedure. Waivers also protect doctors, surgeons, nurses, and hospitals from liability if something goes wrong during the procedure. In some cases, signing a medical waiver or consent form may prevent a patient from filing an informed consent lawsuit against a medical professional or medical facility for injury damages.
Informed consent is a legal principle linked to medical ethics and medical liability. Medical consent forms ensure that patients receive sufficient information and understanding about their medical treatments before accepting the risks. Pertinent information includes the patient’s benefits and risks for treatments and procedures, the patient’s role in treatments and procedures, alternative treatments, and the patient’s right to refuse treatment. In most systems, healthcare providers have a legal and ethical responsibility to ensure that a patient’s consent is informed.
In the United States, definitions of informed consent vary, and the required standard is determined by the state. In Illinois, medical waivers used for medical treatments and procedures are not always enforceable, even if the patient agrees to the terms. Illinois liability waivers require clear, concise, and explicit language related to medical treatments and procedures. Additionally, the patient who signs the waiver must meet the following conditions to qualify for decision-making capacity:
- Choice – the ability to provide a clear decision
- Understanding – the capacity to understand relevant facts about the decision
- Appreciation – the ability to give informed consent with personal concern for relevant facts
- Reasoning – the mental acuity to make reasonable decisions that apply to the current situation
Impairments to judgment and reasoning that may preclude informed consent include emotional or intellectual immaturity, intellectual disability, high levels of stress (post-traumatic stress disorder), severe mental disorders, severe sleep deprivation, intoxication, dementia, and coma. In Illinois, patients injured by medical malpractice can sue a hospital for emotional distress.
If you sign a medical waiver or consent form in Illinois and suffer injuries during a medical treatment or procedure, it’s best to consult a medical malpractice lawyer who can review your case and determine the appropriate course of action for an informed consent lawsuit.
Impact of Consent Forms on Medical Malpractice Lawsuits
Informed consent does not preclude a medical malpractice lawsuit. You can’t sign away your right to negligence-free medical care. Medical malpractice lawsuits arise due to negligent actions of a medical professional or medical facility. This means the guilty party or parties breached their duty of care to the patient, and that breach of care resulted in patient harm such as illness, injury, disability, or death.
What Constitutes Informed Consent?
Informed consent refers to actions that occur between a doctor and a patient before a medical treatment or surgical procedure. Before a patient can sign a medical waiver or consent form, the doctor must share information and discuss the treatment or procedure with the patient:
1. Informed Benefits and Risks
Your doctor must explain the benefits and risks of your medical treatment or surgical procedure. This information is based on your age, medical history, and prior and current health and medical conditions. Your doctor should also address risks if you choose not to have the treatment or surgery.
2. Opportunity to Ask Questions
When your doctor explains your medical treatment or procedure, you should understand the information and have an opportunity to ask questions and address concerns. Your doctor should provide detailed information that you understand. If your doctor can’t answer certain questions, he or she should get the answers and get back to you quickly.
3. Opportunity to Talk With Family
Unless time is of the essence, and you require immediate medical treatment, you should have a chance to review your treatment or surgical procedure with family members or other people you trust. You should not feel pressured to sign a waiver or consent form without the opportunity to explore other options.
4. Decisions Are Shared With Your Medical Team
If you have several doctors involved in your medical care, decisions and information should be shared with the entire medical team. You can speak to each doctor to ensure all doctors agree on your medical course of action. If you choose not to have the recommended medical treatments, you will likely be asked to sign a document indicating that you refused treatment against the advice of your doctors.
What Is Assumption of Risk?
If you sue a medical professional after signing a waiver, he or she will likely use the assumption of risk defense, which shows that you expressed your knowledge of the risks associated with your treatment. Under the assumption of risk doctrine, the defendant will not be responsible for your injuries.
When Is Informed Consent Unnecessary?
For most planned medical treatments and procedures, you will need to sign a waiver or consent form, unless it’s a routine procedure that does not present any risks. Statistics show that emergency room errors in the US occur in 5% to 10% of emergency room patients.
The most common scenarios that do not require informed consent include patient emergencies and patient incapability.
- Patient Emergency – An emergency usually requires immediate medical help and treatment to prevent serious patient injuries or death. When it’s impossible to get consent from the patient or an authorized party, the medical team will assume that the patient wants medical treatment.
- Patient Incapability – Patients who are mentally incapacitated or unresponsive will be given medical treatments without a consent form. If the patient is a minor, consent for medical treatments or procedures on a child can only be given by a parent or legal guardian.
How a Medical Malpractice Lawyer Can Help You
Medical waivers and consent forms may or may not prevent medical malpractice lawsuits, but they are routinely given to patients to protect doctors, nurses, and hospitals. Without signed waivers and consent forms, medical professionals and medical institutions have higher risks for informed consent lawsuits when patient injuries occur. If your medical treatments require signed waivers or consent forms, this does not prevent you from filing a medical malpractice lawsuit if you suffer injuries.
Filing an Informed Consent Lawsuit in Illinois Medical Malpractice Cases
In Illinois, signed waivers and consent forms are not always enforceable by law. A medical malpractice lawyer can review the waivers or consent forms you signed to evaluate an informed consent lawsuit. If you were pressured into signing, or you were not in a competent mental state when you signed, you likely have a valid lawsuit.
If you file a medical malpractice lawsuit in Illinois, you should talk to your lawyer about filing procedures and timelines, legal fees, potential monetary rewards, and caps on medical malpractice claims that may impact your case. According to Illinois law, victims of medical malpractice may be awarded compensatory damages, but not punitive damages.
- Compensatory Damages – compensatory damages are awarded for medical expenses, lost wages or employment, medical aids, home care, pain and suffering, emotional distress, loss of enjoyment or consortium, and loss of life.
- Punitive Damages – punitive damages are awarded solely as punishment for the defendant for negligent actions or egregious misconduct in a medical malpractice lawsuit. In some cases, it’s awarded to deter misconduct in the future.
Can you get punitive damages in a medical malpractice case in Illinois? Illinois laws do not allow victims in medical malpractice cases to recover punitive damages.
The Statute of Limitations for Medical Malpractice Claims
In Illinois, a patient generally must file a medical malpractice claim within two years from the time the patient knew or should have known about his or her injury. Patients under the age of 18 are given up to eight years to file a medical malpractice lawsuit, but the case must be filed before the patient reaches the age of 22. After age 22, the person is no longer allowed to file a medical malpractice claim.If you signed a medical consent form before your medical treatment or surgical procedure, contact us at 312-600-0000. Our Chicago medical malpractice lawyers can give you a free review to discuss your case.