Not that having a release form is a bad thing, or that it would get overturned everytime, but if you really want to protect yourself it should not be your only line of defense!
The Utah Supreme Court reversed a motion for summary judgment dismissing a medical malpractice
claim against two doctors and a Utah hospital. The dismissal had been based on the fact that the
patient had signed a release before receiving corrective surgery on his hands. The court found that
enough evidence existed for the jury to find that the release form was signed under duress and was
thus invalid. (Andreini v. Hultgren, 860 P.2d 916, 222 Utah Adv. Rep. 3 (Sup. Ct. Utah 1993))
In this case, a patient was to undergo dental treatment at the school for dentistry associated with
Emory University. At that time, Emory required all patients, as a condition of treatment, to execute
an information consent form. The form specifically released “Emory University, its officers, agents,
employees, or students … [from] any claims” by the patient that would arise out of the dental
treatment. Id. at 602. The patient in this case signed the release form and was then given dental
treatment, which required the extraction of a tooth. As a result of that treatment, the plaintiff later
claimed that her jaw had been broken during the process of extracting the tooth. She filed a medical
malpractice claim against the school and the doctor involved. The defendants raised the medical
release as a defense. However, the court found the release to be “invalid as contrary to public policy.”
Id. at 610. This case also lists several other cases in other jurisdictions in which a medical release was
held to be invalid. See, Tunkl v. Regents of University of California, 60 Ca1.2d 92, 383 P.2d 441
(1963) (involved hospital patient against a charitable hospital); Meiman v. Rehabilitation Center, 444
SW.2d 78 (Ky. 1969) (action against rehabilitation center by patient injured in course of therapeutic
treatment); Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977) (action against osteopath arising out of
performance of an abortion); Tatham v. Hoke, 469 FSupp. 914 (W.D. N.C. 1979) (also involving a
consent form signed prior to an abortion); (Porubiansky v. Emory University, 156 Ga. App. 602, 275
S.E.2d 163 (Ct. App. Ga. 1980))
Doctors may erroneously think themselves insulated from liability, having received a
written release from the patient, only to find that the court considered the release invalid.
“Some states have caps on awards but even so, we’re seeing some
erosion in that line of defense as attorneys attack the caps.”
Mark Crane, “A New Malpractice Crisis?” Medical Economics, July 9, 2001
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