In this fast paced modern culture, people participate in all sorts of entertaining and often risky activities which, by their very nature, can cause all sorts of harm: examples are activities such as jet or water skiing, playing football, snowboarding, rock climbing, even attending a baseball game! Although these are things people love to do, they also are aware that they could be injured while doing these activities.
We hear stories of people getting hurt and then filing a civil legal action to recover damages for their injuries. After hearing their story, our first reaction may be “ well, they knew what they were getting into, so that lawsuit should go nowhere .” Whether you realize it or not, such a reaction is basically capturing what we lawyers generally refer to as an “assumption of risk” defense. “Assumption of Risk” is a technical way of saying: if true, the civil court system will not allow you to recover any money for your injuries. In its simplest sense, the idea of “assumption of risk” means that the person injured (i.e., “Plaintiff”), in advance, has given his/her consent to relieve the person alleged to be responsible (i.e., “Defendant”) from any obligation regarding their conduct toward him/her. In essence, the person injured, in advance, agrees to “take his chances” of injury from a known risk arising from what the Defendant is to do or leave undone. Stated yet another way, “assumption of risk” is a legal theory that means, once you knowingly and voluntarily engage in a risky action or event, you are not permitted to sue the host for injuries which may happen to you.
A person’s consent can be in writing (which is called an “express” assumption of risk), but it also can be “implied” by conduct. For example, if you ride a roller coaster which flips you upside down and get whiplash in doing so, it is likely that the other side will say; “ You can’t recover because you knew the risks and did it anyway .” Well, that may very well be true, but if your injuries are caused by something which you could not predict or “foresee,” such as malfunction with the safety equipment, then you did not “assume” that risk at all. The defense of assumption of risk bars recovery not only for negligence but also for willful and wanton acts. So, assumption of risk applies only when a Plaintiff freely and deliberately chooses, without restriction, an obviously perilous course of conduct with full appreciation of the danger involved.
Now, here is something which is often confusing to people in the context of a medical malpractice case. Take, for example, a surgery gone badly because the Doctor failed to do what a “reasonable and prudent Doctor” would have done under the same circumstances. The Doctor may very well say; “ Hey, you (patient) signed a consent form giving me permission to perform the surgery and you understood the risks, therefore you can’t sue me .” The basic idea behind the Doctor’s assertion is a reference to the “assumption of risk” defense. The problem with this logic, however, is that the patient only gave consent for medical care to be don e c orre c t l y (which we lawyers call within the “standard of care”).
In other words, the patient, by signing an informed consent form, is only agreeing to the treatment after being informed of its risks of the treatment. This consent is basically acknowledging and accepting any bad consequences of treatment that occurs if the treatment is carried out properly. The patient, however, is not agreeing to treatment performed in a bad way (i.e., malpractice) which then harms them (be it a harm covered in the consent form or not). We will all be a patient at one time or another in our lives, so the next time you sign a consent form, think of it as a permission slip to the Doctor which signifies that you and the Doctor are agreeing to jointly enter the treatment process. The patient is responsible for his or her conduct that undercuts that treatment process, but the Doctor remains fully responsible to conduct his actions “within the standard of care” (which is a fancy of way of saying; don’t commit malpractice).