Can I sue a medical center that required a release of liability to perform a mammogram for rupturing an implant?

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Can I sue a medical center that required a release of liability to perform a mammogram for rupturing an implant?

A July 6, 2017, mammogram ruptured my breast implant, which had to be
surgically replaced Aug. 18, 2017. I was required to sign a waiver of liability
before the medical center would perform the annual screening mammogram.

Since the procedure was unreasonably painful, ruptured the right implant silicone
leaked outside of implant and capsule, and I didn’t have a choice in signing the
waiver, can I successfully sue the medical center for my medical costs surgeon,
doctors, operating room, pre and post-op visits, new implants, etc. and time away
from work?

Asked on September 5, 2017 under Malpractice Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

No, you cannot sue unless you can show they did something beyond "ordinary" carelessness. People can contract their right to sue for the normal risks of a procedure, or even for run-of-the-mill carelessness (not doing things as well as should be done), and such liability waivers are enforceable. However, the law, as a matter of public policy, does not let people give up their right to compensation for someone's extraordinary carelessness or intentional wrongful; the law wants people who do such things to be accountable. So if this kind of rupture is an ordinary risk of a mammogram and the technician or doctor did not do anything especially bad or wrong, you would not be able to sue; but if whomever did the procedure was not properly trained, was performing the procedure while impaired, left the room or failed to monitor for a moment, used defective or not properly maintained equipment, etc., then you may be able to sue.


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