When a patient signs a presurgery release of a doctor and promises not to sue, does that release prevent the patient from later bringing a lawsuit for medical negligence relating to the surgery? The answer in West Virginia is likely to follow general principles set forth in a decision from an appellate court in another state. That court held recently that the release was not effective to stop the patient's lawsuit for medical malpractice.
The patient filed a lawsuit, claiming that her ureter was cut during spinal-fusion surgery. The negligence claim asserted that the surgeon fell below the minimum acceptable standard of care recognized by the surgeon's peers for that operative procedure. The trial court had entered a summary judgment for the surgeon, thus dismissing the case without giving the plaintiff a trial on the merits of the case.
The trial judge's dismissal was based on the legal validity of a release signed by the patient prior to surgery. The release stated that she would not sue because she realized that the surgeon would make the best effort to care for her according to "community medical standards." A three-judge appellate court panel in Florida reversed the trial court and sent the case back for a trial on the merits.
The appellate court ruled that the release was filled with ambiguity and uncertainty. The general wording of the release was not defined by any precise parameters. Releases that are unclear or ambiguous will generally not be enforced. A similar ruling could be expected from a West Virginia court that had to confront a release like the one in question. In addition, there is a strong argument that can be made that presurgery releases are generally void as a matter of public policy in medical malpractice jurisprudence.
Source: wusfnews.wusf.usf.edu, "Court Backs Patient In Malpractice Release Dispute", June 9, 2017