Signing a pre-surgery release form is common practice for hospitals in New Mexico and across the U.S. Surgeons and hospitals ask patients to take this step to ensure they understand the risks associated with having an operation. Most release forms include a separate waiver that outlines a patient’s rights and responsibilities. Sometimes these waivers suggest a patient is relinquishing their right to sue the surgeon or medical facility by signing the form. Most medical providers will not move forward with a procedure unless a patient signs the required forms. If you need surgery to repair an injury or improve your quality of life, it can leave you wondering whether you should write your name on the dotted line or refuse. Signing a pre-surgery release form does not mean you are forfeiting all your rights. You still can sue for malpractice under certain circumstances.
Pre-surgery release forms, sometimes called waivers, ask patients to give consent before they receive any kind of medical care or treatment at a healthcare facility. Most standard waivers contain the following information:
These types of conditions do not usually raise a red flag for most people. It is the inclusion of the provision stating that the patient agrees not to sue the doctor or medical facility if they experience injury from one of the stated risks in the document. This is what the legal world calls informed consent. By signing the form, the patient acknowledges they knew the risks and were willing to take them.
There is a difference between informed consent and negligence under New Mexico law. Informed consent requires warning patients of known risks before a surgical procedure happens. Part of this disclosure involves telling patients if there is an alternative treatment for their condition that does not involve surgery. Surgeons and surgical facilities that do not follow the correct procedure open themselves up to a medical malpractice claim if a patient suffers complications. Patients could claim they may have refused surgery had they known the risks or alternatives.
There are five conditions of informed consent that must be met before the waiver meets legal criteria:
Even when informed consent is followed to the letter, it does not 100 percent shield surgeons and medical facilities from malpractice claims in New Mexico. Patients may claim they were tricked or pressured into signing the consent form and did not fully understand everything outlined in it.
Reasonable risks generally fall into the informed consent category. However, if a surgeon uses a surgical method or implements that fall outside the accepted scope of practice, they may be negligent if their patient suffers injury. Medical waivers do not cover outright negligence and other preventable mistakes that lead to injury or even death.
Pre-surgery release forms are not just about protecting your surgeon from a lawsuit later. When delivered correctly, they prepare a patient for their surgical procedure by carefully explaining every step. Risk discussion and documentation must be a part of the conversation with the surgical team before surgery. After explaining which surgical procedure that a patient will have and how it helps their condition, a complete list of risk factors must be discussed. These should be outlined in the pre-surgery release form.
Whether elective or necessary, all surgeries carry risks. Here are some of the most common:
The biggest risk of all is death during surgery or while in recovery from a surgical procedure. If your surgeon or the surgical team has not discussed these risks with you, do not sign a waiver.
It can be challenging but not impossible to sue your surgeon or surgery facility for medical malpractice, even if you signed a pre-surgery release form. Hiring a personal injury attorney skilled in medical malpractice law in New Mexico can improve your chances of filing a successful claim. Experienced medical malpractice attorneys can conduct the kind of in-depth investigation and evidence-gathering needed to pursue your case. Book a free consultation to review your case with our team. You can request a consult online or by calling 505-750-2363.