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

UPDATED: Oct 1, 2022

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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