You need surgery. You are handed a consent form. It’s right before surgery. You’ve mentally and physically prepared, you’ve done all the pre-surgical testing, you know you need the surgery, and if you don’t sign the form, the surgery won’t happen. Do you really have a choice?
It’s a rhetorical question because, practically, of course, the surgery won’t happen unless you sign the consent form. But you don’t have to agree with everything in the consent form, and that is why you need to carefully read it. You can strike out portions of the consent form that you disagree with and still sign the form.
First, what is the purpose of a consent form? The law requires that you consent to any surgery because it authorizes the surgeon to cut into your body. The failure to obtain consent to do so constitutes a battery, and a civil claim is available for monetary damages for such an unauthorized touching. The requirement for consent applies only to surgery, not to non-surgical touching that doctors are required to perform during an appropriate examination.
Another purpose of the consent form is to comply with the law requiring that you be informed of the risks of the procedure. The failure by the surgeon to explain these risks and obtain your understanding of them before surgery allows a civil claim for money damages against the surgeon for failing to obtain informed consent if you suffer injury from a risk that should have been disclosed.
But hospitals, surgery centers, and surgeons are now including sentences and clauses in these consent forms that are not required for them to meet their duties of informed consent, and that instead cause you to give up important rights you are not required by law to surrender. You can strike out these offending clauses and still consent to the surgery by signing the form with the crossed-out lines.
The most common clauses or sentences to watch for relate to how your claims against the hospital or surgeon will be handled if malpractice occurs. The key things to look out for are:
- An agreement to arbitrate any claim that gives up your constitutional right to a jury trial.
- A clause stating that you must bring suit in a specific venue, such as Bucks County, instead of what the law allows, which is to bring a claim in any county where the hospital or surgeon regularly does business.
These arbitration and venue clauses may be hidden in admission paperwork, anesthesia consent forms, and surgical consent forms. If you do sign these forms, the courts will enforce them, as the law allows you to contractually limit your legal rights if you knowingly choose to do so.
In a recent case before the Pennsylvania Superior Court, a venue provision used in a surgical consent form prevented a case from being filed in Philadelphia County against a medical system that regularly did business there. In Somerlot v. Jung et al., 2025 PA Super 166 (Pa. Super. 2025), Ms. Somerlot sought treatment from Dr. Jung at Pain Management after injuring her pinky finger and was eventually advised to undergo surgery for a spinal cord stimulator implant. Prior to the outpatient procedure, she signed a consent form that included the following venue selection clause:
“NOTICE: Any legal claims or civil actions…shall be brought solely in the Courts of Bucks County…if the patient…does not agree to this paragraph number 6, then he/she will initial here.”
Moments before undergoing the procedure, Ms. Somerlot signed the form without initialing to indicate disagreement with the venue clause. Complications during surgery left her paralyzed from the chest down. She tried to file suit in Philadelphia County, where the medical practice was admittedly subject to suit because it did business there, but the case was removed by the courts to Bucks County, a venue less favorable to patients injured by medical mistakes, because she had signed the form without indicating her disagreement with the venue provision.
The legal right to a jury trial was one of the reasons our Founding Fathers sought independence from England, which denied that right to the settlers. Arbitration favors corporate interests and is just as expensive as proceeding by way of a jury trial.
The legal right to bring a lawsuit against a wrongdoer in a county where it regularly does business, and which may be most favorable to the injured person, is a right guaranteed by the laws of Pennsylvania.
We all believe and hope, as Ms. Somerlot did, that surgery will be successful and free of medical errors. My hope is that you feel encouraged to more carefully read consent forms before receiving medical care — and more empowered to preserve your legal rights before signing them. At the very least, ask the question: “What happens if I cross out this sentence and still sign the form?”
What do you have to lose?
