Signed consent form can I still sue for medical malpractice?

Recently on our legal forum a user asked, “I had surgery on my stomach last year. Come to find out the pain I have been experiencing for months is due to a sponge being left inside of me. I am horrified. Not only have I missed months of work, I have had unbearable pain. I know I signed a consent form stating that I understood the risks of surgery, but I don’t remember this being one of the risks? Can I still file a medical malpractice case if I signed a consent form but the doctor made a mistake?” 

Medical malpractice overview

Doctors and medical professionals make thousands of medical mistakes each year. Whether it’s misdiagnosing, cutting off the wrong limbs, or giving out the wrong prescriptions, it’s estimated that over 250,000 Americans die each year from medical errors. Unbelievably, this puts medical malpractice errors as the third leading cause of death in America right behind heart disease and cancer.

You mentioned you had stomach surgery and you signed a consent form. Now you want to know if signing the consent form has eliminated your right to compensation for your injuries. This is a great question. Let’s review what a consent form is and why the doctor has patients sign them prior to surgery.

What is a medical consent form? 

Doctors are required under state and federal law to obtain informed consent before they perform surgery or a serious medical procedure. To obtain this consent the doctor is required to provide a form, referred to as a medical consent form. This form must include the following information:

• Patient’s diagnosis
• Nature and purpose of the treatment
• Known risks of the medical procedure
• Nature of the procedure
• Risks and benefits of the procedure
• Potential alternatives to surgery
• Risks and benefits of the alternatives to surgery
• Cost of medical treatment 

In addition to the requirements outlined above, the doctor must also review the information with their patient in their own language, ensure the information is placed in the patient’s medical file prior to surgery, and answer the patient’s questions.

State laws vary, but if a doctor fails to meet their state’s regulatory requirements and proper consent is not obtained, a patient who suffers injury or loss during the surgery and did not provide informed consent may have the right to file an injury claim against the doctor.

What if I signed the consent form but I was injured due to negligence?

Now, we’ve discussed medical informed consent and the purpose of signing an informed consent form. We’ve also discussed what happens if you were not provided the right information. Your question, however, pertains to a different issue: giving informed consent but suffering injury due to a doctor’s negligent actions. 

Let’s review your question. First, giving informed consent is one issue. Another issue is suffering injury caused by the negligence of your doctor. Signing a consent form does not eliminate the doctor’s responsibility to provide care which meets the standard of care required by all doctors in a similar position.

For example, you signed a consent form and agreed that you understood the normal risks of a stomach surgery (i.e. bleeding, blood clots, bowel function changes, bowel obstruction, dehydration, indigestion and gallstones). You did not, however, remove all legal liability if a doctor was negligent (i.e. left a sponge inside of your body).

Should I sue for medical malpractice?

Whether you should sue your doctor depends on several factors. First, you must be within the statute of limitations to file an injury claim. You also need to verify that you can prove your injury claim. Finally, you need to determine how much loss you have suffered and whether the effort to recover the damages is worth the money.

Without more specifics about your case it’s difficult to answer these questions, but it’s important to note that injury lawyers may take up to 40% of your settlement total. They also will not take your case if they do not think they can win. For this reason, if your losses are minimal, you did not suffer much, and you did not miss any work, sometime it’s best not to sue. Other times it is. Talk to a lawyer for more information.