For the past several Draw the Law posts I have toured marketing, licensing, and nondisclosure agreements. These are many of the typical forms you will see all-types of businesses use. Today, as I have done with my photographer friends regarding rights of publicity and releases, I will do a couple explanatory posts for my friends who work in the fitness industry with regard to informed consent and waiver forms, and their use in dealing with risks and lawsuits.
What’s the Context We Use these Forms in?
Whenever a client or customer gets injured under your watch as a businessperson you have that aching fear of a pending lawsuit.
All businesses carry some kind of risks with them. Sometimes the risk is monetary (as with the financial sector) other times it is bodily, such as with the fitness and health industry. As I am sure any fitness instructor can tell you, many people receive an exercise-related injury at some point if they workout frequently. Among those hurt by the exercising, some of them may consider a lawsuit against the trainer and the club they work for because in their mind they feel they are the ones responsible for the injury. On the other side one of the goals of any business is to reduce costs and one way to reduce costs is to mitigate or control risk. In case of a personal trainer or a fitness club, it is the risk of a lawsuit by an injured client or patron.
Enter the Informed Consent Form
The informed consent form describes to the signer that with this certain activity, that they are voluntarily taking part of has certain risks that come with the activity, and that by signing the form they acknowledge and understand that fact.
So for those who participate in fitness club activities, for example Turbo Kickboxing, there are risks associated with the activity, such as landing on your foot funny, getting a bruise from a stray kick, or falling down (because you find your instructor hilarious, ok this part is completely a joke). These are called inherent risks. However, let’s say you are a new client trying a completely new exercise routine? Would you know what are inherent risks?
No. This is where the informed consent form tells the client what the risks are with the activity. Why do we want that? Without getting into too much legalese, if a client signs an informed consent form they are stating that they assume a risk and acknowledge the potential for getting hurt. This is key because it provides the personal trainer or club with the assumption-of-the-risk defense in court because they will enter it into evidence. Basically, assumption of the risk is as it sounds, by understanding everything that is written in the form they assume those risks. Therefore, an informed consent form should contain the following:
- Wording that IDs the risks that could occur;
- the consequences of what could happen to the person if those risks did occur (for example, the possibility of dying); and
- if the client is still unclear on the risks, a notation on the document that the personal trainer verbally clarified in advance the questions that client had.*
*Note that this act will not prevent a lawsuit. It merely creates evidence of assumption of the risk.
Is this a Type of Contract?
Under the informed consent form information is exchanged for the understanding that the participant will assume the risk given that information, thus informed consent is a contact.
You are probably getting sick of seeing this, as I say it over and over on this blog and in-person. However, remember the document is just that, a piece of paper. A contract is more than just paper. It is a promise for a promise. In this case, the document embodies the agreement, which is that between the two parties (fitness trainer and client) that all the necessary information was included and that the client hereby assumes the risk, which was disclosed. If you need a refresh of consideration you can click back at the older Draw the Law posts.
If this is a Contract can Minors Enter it?
Remember minors cannot contract, they lack capacity, so all you can do with an informed consent form is to inform the guardian of the risks and have them agree to participate, which is still admissible evidence.
Good question, and remember in a prior post that only adults have capacity to enter contracts, children lack capacity to give consent to be bound in contract. With that being said, many times for instructors that deal with children they have the guardian sign an agreement to participate, which amounts to a permission slip. With that being said, it can still be used as evidence.
Does this Form Help the Instructor or Club Avoid Liability?
No, unless it contains what is known as an exculpatory clause. Basically, the claim people often make in court, when they are injured (whether it be monetarily or bodily), is negligence. This is the injured client basically stating that the trainer or club did (or did not do something) that a reasonable person would have done in the same situation and because of that they got injured. To combat claims based on that argument, attorneys that draft agreements will use an exculpatory clause, which would then make the document a waiver, which I will discuss next week.
Last Word
Informed Consent Forms are not limited to the fitness and healthy industry, but you can see how they are readily applicable to those fields. In general in situations where there is a service provider that has people following their instruction and there are inherent risks of bodily or monetary harm due to participating in the activity you will see the service provider usually having people sign an informed consent form among the papers they hand them before providing the service.
Sometimes, these forms may be incomplete or the employee of the organization has not been properly trained to deal with questions that arise on these forms. In general, an attorney can help you with those matters.
Stay healthy and fit this week, and see you next week!
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*Disclaimer: This post discusses general legal issues, but does not constitute legal advice in any respect. No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction. Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.
