Is it legal that patients can be asked to sign waivers giving up potential rights to sue for medical malpractice in advance of medical procedures?

Patslatt1

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Is it legal that patients can be asked to sign waivers giving up potential rights to sue for medical malpractice in advance of medical procedures?

Recently,a man I met casually told me that four surgery operations by the same surgeon failed to cure his lame condition. He was covered by VHI. Suspecting medical negligence,he investigated the results of similar operations and learned that about eleven patients operated on in the previous two weeks by the same surgeon had gone to other hospitals. Because he had signed a waiver giving up the right to sue for medical malpractice, he couldn't sue the surgeon. A barrister he consulted confirmed this.

If the man had reported the above facts correctly, Irish law would seem to be unique on waivers, particularly compared to common law USA. An article in the Wall Street Journal https://www.wsj.com/articles/SB109269232752592826 on waivers gives the impression that in US states, waivers in a variety of situations such as employment law allow for arbitration or court hearings excluding a jury. But waivers giving up the potential right to sue weren't discussed, presumably because they are illegal.

If they are indeed legal in Ireland, patients on long waiting lists would be afraid to refuse a waiver because access to medical treatments would likely be denied.

While medical litigation costs are the world's highest in Ireland, such waivers are not the solution because they would confer impunity on medical malpractice.
 


NYCKY

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Such waivers are very common in the US.

Those waivers typically aren't worth very much. Lawyers are very good at arguing that their clients weren't fully informed/machines weren't serviced or checked properly, that staff weren't properly trained, that they weren't aware of all the facts, audits were failed, insert reason to sue etc
 

Dame_Enda

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One of the reasons health insurance is so expensive in the US is the high risk of medical malpractice lawsuits. Bush in a 2004 debate with John Kerry advocated reforming the system to reduce premium, but added trial lawyers are a key Democratic party interest group.

So if we get rid of waivers will premiums explode? I've already cancelled my VHI in June.
 

Researchwill

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Recently,a man I met casually told me that four surgery operations by the same surgeon failed to cure his lame condition. He was covered by VHI. Suspecting medical negligence,he investigated the results of similar operations and learned that about eleven patients operated on in the previous two weeks by the same surgeon had gone to other hospitals. Because he had signed a waiver giving up the right to sue for medical malpractice, he couldn't sue the surgeon. A barrister he consulted confirmed this.

If the man had reported the above facts correctly, Irish law would seem to be unique on waivers, particularly compared to common law USA. An article in the Wall Street Journal https://www.wsj.com/articles/SB109269232752592826 on waivers gives the impression that in US states, waivers in a variety of situations such as employment law allow for arbitration or court hearings excluding a jury. But waivers giving up the potential right to sue weren't discussed, presumably because they are illegal.

If they are indeed legal in Ireland, patients on long waiting lists would be afraid to refuse a waiver because access to medical treatments would likely be denied.

While medical litigation costs are the world's highest in Ireland, such waivers are not the solution because they would confer impunity on medical malpractice.
Waivers only cover a situation where there is no professional negligence. To even issue proceedings in Ireland the solicitor and barrister must have a report from a medical person in the field at issue clearly saying the practice was negligent. Waivers will not protect a doctor who is negligent.
 

Researchwill

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One of the reasons health insurance is so expensive in the US is the high risk of medical malpractice lawsuits. Bush in a 2004 debate with John Kerry advocated reforming the system to reduce premium, but added trial lawyers are a key Democratic party interest group.

So if we get rid of waivers will premiums explode? I've already cancelled my VHI in June.
https://www.hsph.harvard.edu/news/press-releases/medical-liability-costs-us/

“They found that the medical liability system’s annual price tag includes $45.6 billion in defensive medicine costs, $5.7 billion in malpractice claims payments, and more than $4 billion in administrative and other expenses.”

As you can see the biggest by far amount of the cost of med Meg in the USA is defence medicine costs not that is not legal costs, but the extra money spent on over cautious health care to avoid being sued
 

Fr Peter McWhinger

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The proposition that a Medical Practitioner would ask someone to waive their right of action suggests the Medical Practitioner was offering a standard of care below that of Peers.

Daniels v Heskin [1954]
“A medical practitioner is liable for injury caused to another person to whom he owes a duty to
take care if he fails to possess that amount of skill which is usual in his profession or if he neglects
to use the skill which he possess or the necessary degree of care demanded or professed”


The leading case on the Standard of Care Required is:
Dunne (an infant) v the National Maternity Hospital [1989] Chief Justice Finlay is quoted as follows:

“If a medical practitioner charged with negligence defends his conduct by
establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.”
 

Patslatt1

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Waivers only cover a situation where there is no professional negligence. To even issue proceedings in Ireland the solicitor and barrister must have a report from a medical person in the field at issue clearly saying the practice was negligent. Waivers will not protect a doctor who is negligent.
In the cosy clubs of medics, who would write a report of negligence? Nurses seem to be as silent as the secretive gardai.
 

Researchwill

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In the cosy clubs of medics, who would write a report of negligence? Nurses seem to be as silent as the secretive gardai.
If you are asking the question the answer is that such reports are usually requested from U.K. professionals. Such report cost from 3k up and add to the cost of such litigation m.
 

Patslatt1

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The proposition that a Medical Practitioner would ask someone to waive their right of action suggests the Medical Practitioner was offering a standard of care below that of Peers.

Daniels v Heskin [1954]
“A medical practitioner is liable for injury caused to another person to whom he owes a duty to
take care if he fails to possess that amount of skill which is usual in his profession or if he neglects
to use the skill which he possess or the necessary degree of care demanded or professed”


The leading case on the Standard of Care Required is:
Dunne (an infant) v the National Maternity Hospital [1989] Chief Justice Finlay is quoted as follows:

“If a medical practitioner charged with negligence defends his conduct by
establishing that he followed a practice which was general, and which was approved of by his colleagues of similar specialisation and skill, he cannot escape liability if in reply the plaintiff establishes that such practice has inherent defects which ought to be obvious to any person giving the matter due consideration.”
The above quotations don't discuss waivers but imply they are invalid for malpractice.
 

Fr Peter McWhinger

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The above quotations don't discuss waivers but imply they are invalid for malpractice.

39.—Subject to section 40, in every contract for the supply of a service where the supplier is acting in the course of a business, the following terms are implied—


(a) that the supplier has the necessary skill to render the service,


(b) that he will supply the service with due skill, care and diligence,


(c) that, where materials are used, they will be sound and reasonably fit for the purpose for which they are required, and


(d) that, where goods are supplied under the contract, they will be of merchantable quality within the meaning of section 14 (3) of the Act of 1893 (inserted by section 10 of this Act).

Sale of Goods and Supply of Services Act, 1980, Section 39

Unfair contract terms - European Commission
 

Researchwill

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39.—Subject to section 40, in every contract for the supply of a service where the supplier is acting in the course of a business, the following terms are implied—


(a) that the supplier has the necessary skill to render the service,


(b) that he will supply the service with due skill, care and diligence,


(c) that, where materials are used, they will be sound and reasonably fit for the purpose for which they are required, and


(d) that, where goods are supplied under the contract, they will be of merchantable quality within the meaning of section 14 (3) of the Act of 1893 (inserted by section 10 of this Act).

Sale of Goods and Supply of Services Act, 1980, Section 39

Unfair contract terms - European Commission
As has been said in this thread you can not contract out of negligence. Waivers may be used to bring to a persons attention real risks in a procedure, in fact it may be negligence to not bing such risks to a persons attention.

Say 5% of hip operations lead to serious complications, and 1% may die on the table, a operation where there is no negligence may lead to serious issue or death, but such a case can not lead to compensation as no negligence, but say the person not told of risks than that may make the care negligent.
 

ger12

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One of the reasons health insurance is so expensive in the US is the high risk of medical malpractice lawsuits. Bush in a 2004 debate with John Kerry advocated reforming the system to reduce premium, but added trial lawyers are a key Democratic party interest group.

So if we get rid of waivers will premiums explode? I've already cancelled my VHI in June.
Young and fit are you?
 

Glenshane4

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Recently,a man I met casually told me that four surgery operations by the same surgeon failed to cure his lame condition. He was covered by VHI. Suspecting medical negligence,he investigated the results of similar operations and learned that about eleven patients operated on in the previous two weeks by the same surgeon had gone to other hospitals. Because he had signed a waiver giving up the right to sue for medical malpractice, he couldn't sue the surgeon. A barrister he consulted confirmed this.

If the man had reported the above facts correctly, Irish law would seem to be unique on waivers, particularly compared to common law USA. An article in the Wall Street Journal https://www.wsj.com/articles/SB109269232752592826 on waivers gives the impression that in US states, waivers in a variety of situations such as employment law allow for arbitration or court hearings excluding a jury. But waivers giving up the potential right to sue weren't discussed, presumably because they are illegal.

If they are indeed legal in Ireland, patients on long waiting lists would be afraid to refuse a waiver because access to medical treatments would likely be denied.

While medical litigation costs are the world's highest in Ireland, such waivers are not the solution because they would confer impunity on medical malpractice.
Does the Eire Republic have an equivalent of the UK's Unfair Contracts legislation?
 

Ardillaun

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If this is back surgery, the outcome is often uncertain. Go to orthopods for broken bones and new joints, not for problems related to the back.
 

Patslatt1

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Does the Eire Republic have an equivalent of the UK's Unfair Contracts legislation?
Probably not, going by a)the pension investment industry which was rated in recent news headlines as ranking among the very worst internationally for returns on investments, presumably because of extreme fees b)the apparently numerous brass necked solicitors whose extortionate fees are reversed in Taxing Master appeals and c)the general ripoff culture where low volume Irish producers in the small markets here try to compensate for that with high prices.
 


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