Author: Anthony Baratta
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 then 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 to make in money damages for such an unauthorized touching. The requirement for consent applies only to surgery, not non-surgical touching that doctors are required to perform for an appropriate examination.
Another purpose of the consent form is to comply with the law that you be informed of the risks of the procedure. The failure by the surgeon to explain these risks, and obtain your understanding of these risks, 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 putting sentences and clauses into these consent forms that are not required for the hospital or surgeon to meet their duties of informed consent but cause you to give up important rights that you are not required by law to give up. And you can strike out these offending clauses and sentences and still consent to the surgery by signing the form with the offending lines crossed out.
The most often used clauses or sentences relate to how your claims against the hospital or surgeon will be addressed if malpractice occurs. The things to look out for are the agreement to Arbitrate any claim, which gives up the Constitutional right to a jury trial, and that you will agree to bring suit in a particular 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 case that recently came before the Pennsylvania Superior Court, a venue provision used in a surgical consent form was used to prevent a case from being filed in Philadelphia County against a medical system that regularly did business in Philadelphia County. 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 eventually being advised to undergo surgery for a spinal cord stimulator implant. Prior to the out-patient 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 the form indicating 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 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 was denying that right to the settlers. Arbitration favors corporate interests and is equally 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 is most favorable to the injured person, is a right guaranteed by the laws of Pennsylvania.
We all believe, we all hope, like Ms. Somerlot did, that surgery will be successful and there will be no medical errors. My hope is that you will feel encouraged to more carefully read consent forms before receiving medical care, and also feel more empowered to preserve your legal rights before signing them. At least ask the question, “what happens if I cross out this sentence and still sign the form.” What do you have to lose?
