Pain And Suffering: The Waiver And Consent Form Conundrum

101807662-resized-600A waiver is the intentional act of relinquishing a known right, claim or privilege such as the right to sue an organization if you are hurt. The term usually refers to an express or written agreement. A waiver removes the potential liability from the party that could be held responsible for harm. In the most basic sense, you are waving your right to a lawsuit.

However, liability waivers are only valid if the person enters into the agreement knowingly and voluntarily and if the person waiving certain rights receives something in exchange.

Courts often find waivers are not voluntary when they are between an individual and an organization because of unequal bargaining power. Courts also often invalidate waivers on the grounds that a participant did not fully appreciate the rights being waived or the waiver did not specifically indicate it included the organization’s liability for negligence. In other words, if you are confused by the waiver you signed, you might be able to get the waiver invalidated with the help of an experienced attorney specializing in personal injury who can guide you through that tricky legal maze.

“Assumption Of Risk”

The organization that made you sign a waiver or consent will assert that you proceeded with the activity despite being aware of the risks — and therefore you are not entitled to receive damages. However, often such waivers do not absolutely absolve them from liability for injuries directly caused by their negligence. Furthermore, courts do not consider waivers an appropriate substitute for careful supervision and due diligence.

“Before The Fact”

The timing of the waiver also determines whether a court will enforce a waiver. If the individual has no practical choice but to sign the waiver, it is unlikely the court will uphold it and you have a good chance of winning your lawsuit.

“After The Fact”

Waivers signed after an injury are different because the value of the exchange is obvious. Injured persons often sign such a waiver as part of a settlement arrangement. Do not sign any settlement agreements without consulting an experienced attorney like Howard B. Segal!

Informed Consent

An informed consent form does not excuse an organization from responsibility for its own negligence. It simply relieves the organization from liability for the inherent risks of an activity itself. It is imperative to note there is no protection for risks not clearly identified in the consent form. Therefore, the form must inform the participant in detail of all specific and inherent risks involved in the activity.

An inherent risk is one that is essential to the nature of the activity. For example, skiing includes the inherent dangers of avalanche, obstacles such as trees and rocks, falls from a ski lift, etc. An iron-clad consent form would list these and any other recognized inherent risks of the activity.

If the form does not identify a specific risk, the injured person has the legal right to seek damages for pain and suffering caused by the unidentified risk.

It’s also important to note that most courts invalidate waivers and consents signed by a minor because minors do not have the legal capacity to sign contracts.

If you have sustained an injury after signing a waiver or consent form, you still may be entitled to compensation for your pain and suffering. Legal expert Howard B. Segal will handle your case, protect your rights and help you get what you deserve.

To learn more about the legalities surrounding waivers and consents, call 484-450-9660 to speak with legal expert Howard B. Segal or click the button below to schedule a free consultation.

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