Chapter 3 Legal Liability and Insurance

LEGAL CONCERNS FOR THE ATHLETIC TRAINER Nowhere is this more true than in our health care system. Ironically, athletic trainers, like all health care providers, are constantly held accountable both for things they do and things they don’t do when treating patients. The potential always exists that techniques and procedures athletic trainers use in providing health care will result in some legal action.

Liability means being legally responsible for the harm one causes another person. means being legally responsible for the harm one causes another person.

Negligence is the failure to use ordinary or reasonable care—care that persons would normally exercise to avoid injury to themselves or to others under similar circumstances. is the failure to use ordinary or reasonable care—care that persons would normally exercise to avoid injury to themselves or to others under similar circumstances. To establish negligence, an individual making the To establish negligence, an individual making the complaint must establish three things: complaint must establish three things: (a) a duty of care (Part of an official job description) existed between the person injured and the person responsible for that injury (a) a duty of care (Part of an official job description) existed between the person injured and the person responsible for that injury (b) conduct of the defendant fell short of that duty of care (b) conduct of the defendant fell short of that duty of care (c) resultant damages (c) resultant damages

Torts Legal wrongs committed against a person. Legal wrongs committed against a person. All individuals are expected to conduct themselves without injuring others. All individuals are expected to conduct themselves without injuring others. When they do so, either intentionally or by negligence, they can be required by a court to pay money to the injured party (“damages”), so that ultimately they will suffer the pain caused by their action. When they do so, either intentionally or by negligence, they can be required by a court to pay money to the injured party (“damages”), so that ultimately they will suffer the pain caused by their action.

Types of Torts Types of Torts Nonfeasance When an individual fails to perform a legal duty. Nonfeasance When an individual fails to perform a legal duty. (ex: not attending practice/game without justifiable reason/replacement or not referring a major injury to a physician) Malfeasance An individual commits an act that is not legally his to perform. Malfeasance An individual commits an act that is not legally his to perform. (ex: applying sutures/stitches or clearing an individual from a concussion) misfeasance An individual improperly does something he or she has the legal right to do. misfeasance An individual improperly does something he or she has the legal right to do. (ex: dosen’t properly apply a brace, clean a wound, etc.)

Negligence When an athletic trainer is sued, the complaint typically is for the tort of negligence. When an athletic trainer is sued, the complaint typically is for the tort of negligence. (1) does something that a reasonably prudent person would not (1) does something that a reasonably prudent person would not (2) fails to do something that a reasonably prudent person would do under circumstances similar to those shown by the evidence (2) fails to do something that a reasonably prudent person would do under circumstances similar to those shown by the evidence To be successful, an individual must prove that: (1) the athletic trainer had a duty to exercise reasonable care (1) the athletic trainer had a duty to exercise reasonable care (2) that the athletic trainer breached that duty by failing to use reasonable care (2) that the athletic trainer breached that duty by failing to use reasonable care (3) that there is a reasonable connection between the failure to use reasonable care and the injury the individual suffered, or that the athletic trainer’s action made the injury worse. (3) that there is a reasonable connection between the failure to use reasonable care and the injury the individual suffered, or that the athletic trainer’s action made the injury worse.

Good Samaritan law Provides limited protection against legal liability to any person who voluntarily chooses to provide first aid. Provides limited protection against legal liability to any person who voluntarily chooses to provide first aid.

What do you think?! A baseball batter was struck with a pitched ball directly in the orbit of the right eye and fell immediately to the ground. The athletic trainer ran to the player to examine the eye. There was some immediate swelling and discoloration around the orbit, but the eye appeared to be normal. The player insisted that he was fine and told the athletic trainer he could continue to bat. After the game the athletic trainer told the patient to go back to his room, put ice on his eye, and check in tomorrow. That night the baseball player began to hemorrhage into the anterior chamber of the eye and suffered irreparable damage to his eye. An ophthalmologist stated that if the patient’s eye had been examined immediately after the injury, the bleeding could have been controlled and there would not have been any damage to his vision. ? If the patient brings a lawsuit against the athletic trainer, what must the patient prove if he is to win a judgment?

And the answer is…… An athletic trainer who assumes the duty of caring for an athlete has an obligation to make sure that appropriate care is given. If the athletic trainer fails to provide an acceptable standard of care, there is a breach of duty on the part of the athletic trainer, and the athlete must then prove that this breach caused the injury or made the injury worse. An athletic trainer who assumes the duty of caring for an athlete has an obligation to make sure that appropriate care is given. If the athletic trainer fails to provide an acceptable standard of care, there is a breach of duty on the part of the athletic trainer, and the athlete must then prove that this breach caused the injury or made the injury worse.

Statutes of Limitation sets a specific length of time that individuals may sue for damages from negligence. sets a specific length of time that individuals may sue for damages from negligence. The length of time to bring suit varies from state to state, but in general plaintiffs have between 1 and 5 years to file suit for negligence. The length of time to bring suit varies from state to state, but in general plaintiffs have between 1 and 5 years to file suit for negligence.

What protects the Athletic Trainer/Athletic First Responder? Assumption of Risk The individual, through express or implied agreement, assumes that some risk or danger will be involved in the particular undertaking. In other words, a person takes his or her own chances. The individual, through express or implied agreement, assumes that some risk or danger will be involved in the particular undertaking. In other words, a person takes his or her own chances.

Tips to reduce the risk of litigation… 1. Work to establish good personal relationships with athletes, parents, patients, clients, and coworkers. 2. Establish specific policies and guidelines for operation of an athletic training facility or clinic, and maintain qualified and adequate supervision of the facility and equipment at all times.

3. Develop, review annually, and carefully follow an (EAP) emergency action plan. 4. Become familiar with the health status and medical history of the individuals under his or her care (see Chapter 2) so as to be aware of problems that could present a need for additional care or caution. 5. Keep factually accurate and timely records that document all injuries and rehabilitation steps, and set up a record retention policy that allows records to be kept and used in defense of litigation may be brought by a patient. A record retention system needs to keep records for long enough to defend against suits brought by patients after they reach the age of eighteen. (usually 5-7 years) 6. Document efforts to create a safe rehabilitation or training environment.

7. Have a detailed job description in writing. 8. Obtain, from parents or guardians when minors are involved, written consent for providing health care (see Chapter 2). 9. Maintain the confidentiality of medical records (see Chapter 2). 10. Exercise extreme caution in the administration, if allowed by law, of nonprescription medications; athletic trainers may not dispense prescription drugs, however they can administer them with proper documentation. 11. Use only those therapeutic methods that he or she is qualified to use and that the law states may be used. 12. Do not use or permit the presence of faulty or hazardous equipment. 13. Work cooperatively with the coach and the team physician in the selection and use of sports protective equipment, and insist that the best equipment be obtained, properly fitted, and properly maintained.

14. Do not permit injured players to participate unless cleared by the team physician. 15. Develop an understanding with the coaches that an injured patient will not be allowed to reenter competition until, in the opinion of the team physician or the athletic trainer, he or she is psychologically and physically able. Athletic trainers should not allow themselves to be pressured to clear a patient until he or she is fully cleared by the physician. 16. Follow the express orders of the physician at all times. 17. Purchase professional liability insurance that provides adequate financial coverage and be aware of the limitations of the policy. 18. Know the limitations of his or her expertise as well as the applicable state regulations and restrictions that limit the athletic trainer’s scope of practice. 19. Use common sense in making decisions about a patient’s health and safety.

Bottom Line….. Always work on the side of caution, and use common sense! Always work on the side of caution, and use common sense!

Insurance Terms Exclusions: treatment not covered by the insurance policy Exclusions: treatment not covered by the insurance policy Product Liability: Written guarantee athletic equipment is safe Product Liability: Written guarantee athletic equipment is safe Point of Service Plan: combination of HMO (health maintenance)/PPO (preferred provider) plans Point of Service Plan: combination of HMO (health maintenance)/PPO (preferred provider) plans Capitation: members make a standard payment Capitation: members make a standard payment Deductible: owed first (annually) before insurance company will pay Deductible: owed first (annually) before insurance company will pay Copayment: a specific amount paid by policy holder Copayment: a specific amount paid by policy holder Fee for Service: Most traditional form of billing for healthcare Fee for Service: Most traditional form of billing for healthcare