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Ely
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Hi friends, Field: Medical Malpractice. Subject: Informed

Resolved Question:

Hi friends,

Field: Medical Malpractice. Subject: Informed consent

In medical operations, patients are often asked to sign a pre-printed consent that inform them the worst-case scenarios, e.g. amputation, permanent paralysis, death.

If the worst like that actually happens due to negligence, can patient sue doctor for it? (Or defendant can show that signed paper and say "I told you so and you accepted the risk" and have the case dismissed?).

Please answer only when U can cite.

Many thanks/
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

What you are talking about are called "liability waivers." So the question is - can these liability waivers be themselves voided if something happens?

The answer is yes, the liability waiver may be itself voided, but only at certain times. The rule of thumb is that a liability waiver is enforceable and limits the patient's right to sue, unless the physician's actions may be seen as (1) gross negligence as opposed to regular negligence or (2) intentional:

"Indeed, for more than three decades, Witkin has asserted that California law categorically bars the prior release of liability for future gross negligence: 'The present view is that a contract exempting from liability for ordinary negligence is valid where no public interest is involved.... [¶] But there can be no exemption from liability for intentional wrong [or] gross negligence ....' (1 Witkin, Summary of Cal. Law (10th ed.2005), Contracts, §§ 662-665, pp. 739-746, supra, Contracts, § 660, pp. 737-738, italics added; see also 1 Witkin, Summary of Cal. Law (9th ed.1987), Contracts, § 631, p. 569 [same]; 1 Witkin, Summary of Cal. Law (8th ed.1973), Contracts, § 485, pp. 411-412 [essentially identical]; 1 Witkin, Summary of Cal. Law (7th ed.1960), Contracts, § 200, p. 226 [The Contracts Restatement declares that a person can contract to exempt himself from liability for ordinary negligence, but not for gross negligence]." City of Santa Barbara v. Superior Court, 161 P. 3d 1095 - Cal: Supreme Court 2007.

In short, the medical waiver is enforceable, but if the error is gross negligent or on purpose, it can be "pierced."

An example of a regular negligence error may be to give someone wrong medication which causes nausea.

An example of gross negligence may be a physician leaving a sponge inside a patient (happens).

An example of an intentional wrong is to have the physician purposefully botch the surgery, for example.

I hope this helps and clarifies.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

I appreciate yr thorough Ansr.


My Q extends /compounds hence wl entail bonus.


 


What's the weight of evidence


 


1) For "gross" negligence (same 51% like negligence) or something else?


 


2) For "intention" ?


 


3) Does "intention" constitute Malice + Battery hence Punitive?


 


4) If I sue for both Gloss Negligence and Battery, then will it be classified under Negligence or Intentional Tort or can I classify the lawsuit with both?


 


Many thanks/

Expert:  Ely replied 1 year ago.
Tuan,

Thank you for your follow up.


What's the weight of evidence
1) For "gross" negligence (same 51% like negligence) or something else?


No, it is the same proof (51%), but the elements are different.

The elements of a claim for (ORDINARY) professional negligence incorporate a specific standard of care into the elements of a negligence claim. (5) "The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. [Citations.]" Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal. Rptr. 849, 491 P.2d 433].

"GROSS negligence is ... a lack of care as may be presumed to indicate a passive and indifferent attitude toward results." Meek v. Fowler, 3 Cal. 2d 420 - Cal: Supreme Court 1935.

Of course, the answer is subjective, and is up to the jury to decide which (ordinary or gross) negligence happened.

2) For "intention" ?

Intent is merely "intent" - the intent to do something. If the physician intended to harm (unlikely, of course), then the Jury is allowed to consider this in deciding whether or not the waiver may be voided.

3) Does "intention" constitute Malice + Battery hence Punitive?

No - intent "involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences." Meek v. Fowler, 3 Cal. 2d 420 - Cal: Supreme Court 1935.

4) If I sue for both Gloss Negligence and Battery, then will it be classified under Negligence or Intentional Tort or can I classify the lawsuit with both?

It could be classified under either, or both. It really does not matter how it would be "classified" in the Court system, provided that both "negligence" and "civil battery" are listed on one's complaint and are argued in Court - that is all that matters. The classification is simply an administrative function which does not affect the lawsuit itself.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

(Pls use my nick only)


 


To my Q # XXXXX) Does "intention" constitute Malice
+ Battery hence Punitive?


 


I appreciate its definition but Let's not assume its likelihood (which is a Q of fact). Let's focus on the Q of law here.


 


If the element of Intent can be proved, then Malice then Punitive follows as logical sequence, doesn't it?


 


Many thanks/

Expert:  Ely replied 1 year ago.
Friend,

Throw logic out the window here. Imagine the law as though it were another language, and one has to learn to speak it. Not everything is "logical" here.

If you are asking about punitive damages, then the following applies:

Normally, the Court awards ACTUAL damages plus legal/attorney costs. Punitive damages may be applied to any tort/breach of action/negligence, IF the Plaintiff can show by clear and convincing evidence oppressive conduct, fraud or malice by the Defendant. Cal. Civ. Code § 3294(a).

So punitive damages may be sought in a regular negligence, a gross negligence matter, battery, or anything else.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

Intent to do harm constitutes Malice in CCC § 3294(a), doesn't it?

Expert:  Ely replied 1 year ago.
Hello,

Intent to do harm constitutes Malice in CCC § 3294(a), doesn't it?


Yes, it does.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Satisfied Customers: 89076
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Expert:  Ely replied 1 year ago.
Thank you for your gratuity.

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