If you were injured as a result of a medical professional’s careless error, you probably want to know what your options are for seeking financial recovery in a medical malpractice case. If you signed a liability waiver prior to your treatment or surgery, you may wonder if you have any right to compensation at all.
The medical malpractice lawyers at The Law Offices of Dr. Michael M. Wilson, M.D., J.D. & Associates have in-depth experience with cases involving liability waivers. Dr. Michael Wilson, our principal attorney, is both a doctor and a lawyer, giving him and his team a distinct advantage in understanding whether a case is viable under the law and how to build the strongest possible case on your behalf.
If you suffered an injury after signing a liability waiver, don’t wait to contact our firm to review the details of your case with a knowledgeable attorney. We offer free consultations where we can help you understand your options for pursuing the fair outcome you deserve.
What Are Liability Waivers?
Liability waivers are basically contracts that ask you to accept risk when undergoing a procedure or participating in an activity. When you sign this waiver, you agree not to hold a certain person or entity liable if you suffer harm. A liability waiver may also be referred to as a release, an indemnification agreement, or a hold harmless agreement.
You have probably been asked to sign a liability waiver at some point for activities such as:
- Medical procedures
- Fitness programs and gym memberships
- School field trips
The courts of most states will enforce liability waivers if it can be demonstrated that the person signing the liability waiver understood what they were signing and did so voluntarily. However, Virginia courts are an exception. The Virginia Supreme Court has determined that pre-injury liability waivers are generally not enforceable because they go against the public policy of the Commonwealth of Virginia.
Pre-injury Liability Waivers Under Virginia Law
People are often asked to sign pre-injury liability waivers before participating in certain events, such as receiving medical treatment. These waivers ask individuals to give up their right to sue if they’re subsequently injured. However, Virginia has a long history of upholding injured victims’ rights when someone else may be responsible for their injuries, even if they signed a waiver prior to sustaining the injury.
Through a series of rulings, the Virginia Supreme Court has continually expressed an aversion to enforcing pre-injury liability waivers, noting in one case that “release from liability for personal injury which may be caused by future acts of negligence are prohibited universally.”
Additionally, the court has additionally expressed concern that the party relieved of responsibility in the waiver would lack the motivation to act appropriately, believing that no matter what it did, it would not face liability.
Are Liability Waivers Enforceable in Virginia?
Generally speaking, most pre-injury liability waivers are not enforceable in Virginia. That said, pre-injury liability waivers may still be useful to those looking to reduce their liability. Specifically, medical professionals, healthcare providers, and other parties may insert language into the waivers that will help support viable defenses to an injury claim, such as the assumption of risk.
For example, if a physician or other provider who is a defendant in a medical malpractice lawsuit can show that the patient voluntarily assumed the risk of injury, knowing the danger, the injured person may be prevented from recovering compensation for their injuries and losses.
In other words, the defendant must prove that the plaintiff:
- Had a full appreciation of the type and severity of the risk, and
- Voluntarily assumed the risk
These questions seek to determine whether the injured victim understood not only the risks one normally thinks of in relation to a certain activity or procedure but whether they knew of the risk that actually caused their injury.
Ultimately, if an injured person signed a liability waiver that clearly described the potential for a specific risk or harm that the injured person suffered, the waiver might be used as evidence that the victim knew about the risk and nonetheless assumed it.
Are Pre-Injury Clauses Valid in Virginia?
Pre-injury clauses are not valid in the sense that they generally cannot be used to relieve a physician, healthcare provider, or other parties from their own negligent acts. A Virginia court would be unlikely to uphold a waiver as a valid defense on its own.
However, the language within a pre-injury liability waiver may be used to show that the person injured knew what the risk was and decided to go ahead with it anyway. Such evidence could support the defense known as the assumption of risk and possibly prevent the injured party from receiving compensation.
Virginia Supreme Court Upholds Victims’ Rights to Sue
The Virginia Supreme Court has repeatedly upheld the right of injured victims to file suit against the negligent parties who injured them, even after they signed a waiver or similar contract.
In the case Johnson Administratrix v. Richmond & Danville Railroad Company, which took place in the late 19th century, an individual working for a railroad was killed after a train struck a wheelbarrow he was pushing.
When his estate sued, the railroad company used the liability waiver as its defense. However, the Virginia Supreme Court ultimately ruled in favor of the plaintiff, noting that these contracts unjustly leave one party to the mercy of another’s conduct and are against the public policy of the state.
More recently, the Virginia Supreme Court refused to uphold a pre-injury liability waiver in a case involving a triathlon athlete who suffered a head injury upon diving into a lake, pointing to the earlier Johnson case as precedent.
Contact Our Personal Injury Lawyers
Evaluating the circumstances of personal injury cases that involve pre-injury liability waivers can be complicated. These cases are especially complex in the medical malpractice setting because they require in-depth medical knowledge.
If you have been injured by a physician or other healthcare provider, you need a lawyer as well as a physician on your side. The Law Offices of Dr. Michael M. Wilson, M.D., J.D. & Associates can help you understand the complex issues in your case and apply their knowledge to build the strongest possible claim on your behalf. Contact us today for a free consultation.
Dr. Michael M. Wilson is an attorney and a physician who earned his undergraduate degree from the Massachusetts Institute of Technology and his legal and medical degrees from Georgetown University. He has focused in the area of medical malpractice for more than three decades and secured more than $100 million in settlements and verdicts on behalf of clients throughout the country. He is admitted to practice in the District of Columbia and New York as well as the U.S. Court of Appeals for the District of Columbia and the U.S. Supreme Court. He is listed in America’s Top 100 High Stakes Litigators.