When I Sign a Waiver, Does It Mean I Can’t Sue?
A waiver is a written legal document. (It must be in writing.) The document states that if someone else is negligent, then you can’t sue that person (or business) if the negligence causes you damages. Damages in personal injury cases include compensation for your medical bills, lost income, property damage, physical pain, and emotional suffering. The waiver essentially says that if you take part in an activity, that you assume the risk that you might be hurt.
For example, your employer might ask you to sign a waiver before engaging in a company softball game. The company wants to make sure they can’t be sued if you injure your leg sliding into third base. Businesses continually try to expand the use of waivers to all types of company activities.
Waiver documents are not confined to employment activities. You may be asked to sign a waiver before you go skydiving, take a karate class, or enter a haunted house. Medical providers may ask you to sign a waiver before giving you a medical treatment such as chemotherapy, a Botox injection, or a range of health-related services. Waiver forms are often used for clinical studies. The physician, pharmaceutical company, or another health provider/company may pay you a fee for participating in their study – but only if you agree not to file a complaint for damages if something goes wrong and your health is affected.
Why do companies and providers want waivers?
Businesses, health providers, and other companies want you to sign a waiver agreement for two basic reasons: so, you can’t file a lawsuit against them, and so their liability insurance companies will charge a lower premium. Some insurance companies may not even offer liability insurance unless the participants in certain activities agree to sign the waiver document.
Another component of a waiver clause is that some waivers permit you to file a complaint for legal damages – but only if you agree that the dispute is resolved through arbitration. In arbitration, several arbitrators decide the dispute instead of a judge and a jury of your peers. Here, you’re not waving your right to damages, but you are waiving your right to a jury trial.
Do you have to sign the waiver form?
Not necessarily. Employers, health providers, schools, and other entities can’t force you to sign a waiver form. You do have the right to say no. Of course, if you don’t sign the waiver, then you may not be allowed to participate in the activity, receive the medical treatment, or benefit from whatever the entity is offering.
Is the waiver enforceable?
If you become injured after signing the waiver, the person or business that requested that you sign the waiver will assert the signed waiver as a defense. You have the right to challenge the waiver. There are conditions and circumstances where a judge may rule that the waiver is invalid. The judge will normally read the waiver very closely and interpret the waiver as narrowly as possible – because a waiver means that you are giving up a fundamental right. The judge will then look at your answers to the following questions:
- Was the language of the waiver clear?
- Did you fully understand what you were signing and what benefits you were waiving?
- Were you pressured or forced to sign the waiver, or did you have time to make a knowledgeable decision?
- Did you ask any questions about the terms of the waiver, and were those questions answered?
- Did you actually sign the waiver? (Remember: waivers are written documents, so an oral agreement to waive your rights won’t cut it.)
- Is the person who signed the waiver of legal age? (Waivers are unenforceable if they were signed by a minor. Minors may also have the right to file a legal claim for damages – if their parents signed the waiver.)
Even when the waiver form appears to be valid and it appears that you understood that you were giving up specific legal rights, a judge or court may invalidate the waiver if:
- The waiver involved dishonesty or a misrepresentation about a material fact. If a company is aware of a known health risk and fails to inform you of that health risk, then the judge/court may rule that the waiver can’t be enforced.
- The company or entity that asked for the waiver was more than just negligent. If they recklessly, intentionally, or wantonly disregarded your safety, the waiver may not be enforceable.
- The injury involves a product defect. Generally, a manufacturer, distributor, or retailer cannot demand that consumers sign a waiver agreement in order to use a drug, a car, an electronic device, or any product.
- The waiver was too general. Waivers should be targeted to specific activities or benefits. An employer or doctor can’t normally ask you to sign a blanket waiver that protects them from personal injury liability for anything that might possibly go wrong.
A quick note about waivers and medical malpractice
Physicians and hospitals that ask you to sign a waiver must fully inform you of all the risks involved with the procedure. Failure to provide informed consent may be medical malpractice. Suggesting a risky treatment or not administering the treatment properly may also be medical malpractice. When health providers ask you to sign a waiver, they are trying to protect themselves from medical malpractice lawsuits. Judges will review these types of waivers very carefully to protect you and all other potential patients.
Waivers also only apply to the treatments identified in the waiver. If a physician provides a treatment outside the terms of the waiver, then patients (or their families) should have the right to file a medical malpractice claim if the health providers commit errors that cause injuries or death.
Insurance companies and defense lawyers will assert every defense possible to try to defeat your claim. You need an experienced personal injury lawyer on your side – a lawyer who will assert your rights and challenge any unreasonable arguments the insurance adjuster or defense attorney makes. When defendants are negligent, they should pay for your economic damages and your pain and suffering. If you were injured or your loved one died, Rocky McElhaney Law Firm is here to fight for you. Call our office at 615-239-5331, or fill out our contact form to make an appointment. We represent injured victims and families in Nashville, Hendersonville, and Clarksville, and throughout Tennessee.
Nashville personal injury attorney Rocky McElhaney is a well-known and respected lawyer as well as published author, helping Tennesseans through difficult times since the turn of the century. Rocky builds friendships with his clients, not just professional relationships. Rocky McElhaney is a Super Lawyer, AV Rated by Martindale Hubbell, has been named a Top 100 Trial Lawyer by the National Trial Lawyers Association and has been awarded Best Lawyer in Nashville by the Nashville Scene Readers’ Poll
The Rocky McElhaney Law Firm represents people who have been injured by car accidents, truck accidents, motorcycle accidents, negligent premises owners, defective products and many other forms of negligence throughout the state of Tennessee. The firm also represents clients in the areas of workers’ compensation and Social Security Disability claims.