A waiver is a document by which a person agrees in advance to give up the right to sue for harm, and waivers appear in healthcare-adjacent settings such as private clinics, cosmetic and elective procedures, and wellness services. Their effect on a claim for negligent medical care is limited and frequently overstated.
A waiver is not the same as informed consent: consent addresses agreement to a procedure and its risks, while a waiver purports to bar a remedy if something goes wrong. Even where signed, a waiver may be unenforceable against negligence depending on its wording, the circumstances in which it was signed, and statutory protections, including provisions of the Consumer Protection Act, 2002 that can render certain attempts to waive liability for services ineffective. A waiver therefore does not reliably absolve a provider of liability for negligent care.
Posts tagged Waivers analyze Ontario decisions and issues involving liability waivers in healthcare and related services and their limited effect on negligence claims.
National Post coverage of Dr. Michael Hart, the London, Ontario physician suspended for six months over his ketamine prescribing and for asking patients to sign away their right to sue him or complain to the College. Paul Cahill comments on why that document is an alarm bell, how it differs from an ordinary surgical consent form, and where a College proceeding ends and a civil claim begins.
Paul Cahill’s Summer 2022 article in OTLA’s Litigator on the enforceability of waivers in personal injury actions, with a detailed analysis of Arksey v Sky Zone Toronto.
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