Surgical releases are effective in maintaining the lines of communication between the healthcare provider and the patient.  Releases ensure that the patient is well informed regarding his or her upcoming procedure.  Releases do not diminish or enhance the level of care and professionalism required by healthcare providers. Are releases signed shortly before surgery binding if there was a threat that the surgery would not be performed without the release?  The Supreme Court of Utah recently dealt with the issue of surgical releases signed under duress.  In Andreini v. Hultgren, the patient was scheduled for surgery to correct compression paralysis in both hands which appeared two months after a surgery in which the patient's wrists were strapped down.  The patient sued the surgeon, the anesthesiologist and the hospital.

            An hour before the corrective surgery, the patient was presented with the release.  The patient was in a gown, shaved and prepped for surgery.  The document released the surgeon and the hospital from any existing and future liability.  Initially, the patient refused to sign the release but was persuaded when the surgeon called and said that he would not perform the surgery if the patient did not sign the release.

            The Supreme Court of Utah dealt with two important issues. First, general contract principles would allow the signed release to be voided if the patient's consent was "induced by an improper threat by the other party that leaves the victim no reasonable alternative."   Here, the patient claimed that the surgeon improperly induced him into signing the release by promising that the corrective surgery would restore the use of his hands.  The patient also contended that the language in the release itself seemed to guarantee full recovery, "I will receive surgery to correct ulnar nerve palsy..."  While optimism is important, this type of language can be misleading.

            The second issue taken up by the Supreme Court of Utah is whether or not the surgeon acted in bad faith.  The patient argues that the surgeon acted unfairly when he promised full recovery provided the patient waive all present and future claims against him.  The patient claims that there was no "reasonable alternative."

            Also contributing to the question of whether or not the doctor acted in bad faith was his timing in presenting the release to the patient.  Since the patient was dressed in a surgical gown and prepped for surgery, he fully expected to undergo corrective surgery on his hands.  At that time, the patient's condition was "getting progressively worse" every day.  The patient could have delayed or canceled the surgery, but it may not have been reasonable for him to do so given that his condition was worsening. In this case, the court found that there may not have been a reasonable alternative to signing the release.

            Surgical releases are meant to ensure that all parties involved are aware of the potential risks and benefits of the procedure that is being undertaken.  Medical professionals should enable the patient to make an informed decision regarding his or her treatment.  Special care should also be given to the language contained in a release.  Do both parties have a clear picture of what the procedure entails?  Does the patient understand all the risks and benefits of the surgery?  Communication between patient and healthcare provider is essential in creating an effective plan of treatment.

  • Taking Chances2:24

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Surgical Releases

by Attorney Frank E. Reardon

May 1994