If you’re undergoing a sufficiently risky medical procedure, then you might be asked to sign a form indicating that you understand all of the risks of a given treatment, and that you are consenting to receive it.
You might imagine that signing such a document would waive all of your rights to a medical negligence claim in the event that something goes wrong. But this isn’t quite the case. Consent must be ‘informed’, and this is a term that disguises a great deal of subjectivity. Just how informed were you?
If the risks of a procedure going wrong were explained to you fully before an operation, and then those dangers actually manifested, then it’s reasonable to say that you knew what you were signing up for. But this doesn’t tell us anything about the degree of risk. If you thought that the likelihood of something bad happening were one in a million, when in reality they were one in ten thousand, then you’ve unknowingly accepted a hundredfold increase in risk.
In some cases, the risks themselves might not have been adequately defined, or some of them might not be defined at all. In some cases, this lack of information can itself amount to medical negligence. After all, a sizeable component of any medical treatment is the information that the patient is given. If that information is faulty, then so too is the treatment.
Can I claim medical negligence even if I’ve signed a waiver?
If you can demonstrate that you were not fully aware of the risks when you signed on the dotted line, then you can likely still pursue a case for medical negligence. As ever, you will need to pass the Bolam test: which means demonstrates that you have suffered harm because of an action that the medical professional took, where a competent medical professional would have done otherwise. The only difference is that you have the added complication of judging whether your consent was entirely informed.
Medical negligence cases are typically settled with the help of expert witnesses with a highly specialised knowledge of medicine. As such, any claim stands a much better chance of success if a specialised medical negligence solicitor is involved. These firms are able to leverage expert witnesses, whose testimony may prove invaluable.
Moreover, a competent medical negligence solicitor will use their experience to help you determine whether a claim is worth pursuing. They almost always proceed on a no-win, no-fee arrangement, meaning that the onus is on them to make this determination before they take on the case. You might find that if your chance of success is low, they turn you away. But if your case does get taken on, you’ll have the peace of mind that comes with knowing you’re in safe hands.