Legal Liability & Insurance Chapter 3 Legal Liability & Insurance

Legal Concerns of the Coach & Athletic Trainer Liability: being legally responsible for harm caused to another Coaches & Athletic Trainers must know the legal limitations of their responsibilities in providing athletic health care. Coaches & Athletic Trainers should be aware of laws & statues in the state where they are employed SC Athletic Trainers Act: Title 44 Chapter 75 SC Concussion Law: A33, R65, H3061 effective June 7, 2013

Standard of Reasonable Care Negligence: failure to use ordinary or reasonable care; care that a person would normally use to avoid injury to themselves or others. 3 things must be established to prove negligence Duty of Care or Responsibility to care for the injury Conduct or treatment fell short of that duty of care Damages resulted from poor conduct or treatment Standard of Reasonable Care Assumes that a person is neither exceptionally skillful nor extraordinarily cautious, but is a person of reasonable & ordinary prudence. The person will use common sense approach when handling a situation & will exercise due care. EX: A coach or athletic trainer would treat an athlete the same way another person would with similar educational background or training

3 types of Torts Nonfeasance: act of omission, a person fails to perform a legal duty Malfeasance: act of commission, a person commits an act that is not his or hers to perform Misfeasance: mistake, person improperly does something they have the legal right to do Tort Legal wrongs committed against a person or property of another. Every person is expected to conduct themselves without injuring others. If an injury results because or a persons actions or behavior, they may be held liable.

Nonfeasance Act of Omission Example An athletic trainer doesn’t test an athlete who complains of concussion symptoms & lets them continue to play

Malfeasance Act of Commission Example An athletic trainer stiches a laceration

Misfeasance Mistake Example An athletic trainer improperly treats an athlete with a suspected neck injury. They remove the helmet before spine boarding the athlete.

Good Samaritan Law Provides limited protection against legal liability to any individual who voluntarily chooses to provide first aid, should something go wrong. As long as the first aid provider does not overstep the limits of his or her professional training, and exercises what would be considered reasonable care in the situation, the provider will not be held liable. Coaches and Athletic trainers are not required to provide first aid care for an injured person outside of their scope of employment. It is expected that a person possessing more training in a given field or area will possess a correspondingly higher level of competence than, for example, a student. If a physician gets involved they are expected to provide care on the level of a physician; same for a nurse, atc, etc.

Good Samaritan Law SC SECTION 15-1-310 Liability for emergency care rendered at scene of accident Any person, who in good faith gratuitously renders emergency care at the scene of an accident or emergency to the victim thereof, shall not be liable for any civil damages for any personal injury as a result of any act or omission by such person in rendering the emergency care as a result of any act or failure to provide or arrange for further medical treatment or care for the injured person, except acts or omissions amounting to gross negligence or wilful or wanton misconduct

Statute of Limitations Generally speaking it is a 1-3 year period but, it will vary by state Time begins at the time of the negligent act or discovery of injury caused by the negligent act If the injured is a minor, many states allow up to three years after the injured turns 18 to file suit for damages (up to the age of 21) Statute of Limitations Specific length of time that you have to sue for damages from negligence

Assumption of Risk The person knows and understands the dangers of the activity and chooses to be exposed to those dangers Persons may sign a waiver to release school, institution, workplace of liability. Ex: Assumption is implied by the conduct of the athlete and by their participation. Assumption of risk can be used as a defense to negligence suit. However, it may be questioned when damages/injury involves a minor Assumption of Risk DOES NOT excuse someone from exercising standard of reasonable care In case of an injury the coach must use reasonable care to prevent further injury until medical care is obtained

Product Liability Any party involved in making a product may be held liable if the product is used as directed and injury still occurs National Operating Committee on Standards for Athletic Equipment: NOCSAE NOCSAE establishes minimum performance standards for protective equipment that must be met to ensure safety in a variety of sports. There are two types of standards; General and Sport-specific. The General standards apply to multiple different sport-specific standards, and should be referred to in addition to the sport-specific standards. EX: Warning labels placed on football helmets Unfortunately, with the increased attention and involvement in organized athletics, serious injuries also became more prevalent. This was particularly evident in the sport of football where 32 fatalities were documented in 1968 from head and neck injuries directly due to participation in the sport in organized competition. To counter this trend, in 1969 the National Operating Committee on Standards for Athletic Equipment (NOCSAE) was formed to commission research directed toward injury reduction. Priorities had to be established because of limited funds, and research was directed where there was the most urgent need for a standard. Therefore, football helmets were targeted for the initial research effort. Football Baseball/Softball Hockey Lacrosse Polo Soccer

NOCSAE WARNING Keep your head up. DO NOT butt, ram, spear or strike an opponent with any part of this helmet of faceguard. This is a violation of football rules and may cause you to suffer severe brain or neck injury, including paralysis or death and possible injury to your opponent. Contact in football may result in Concussion/Brain injury which no helmet can prevent. Symptoms include: loss of consciousness or memory, dizziness, headache, nausea or confusion. If you have symptoms immediately stop playing and report them to your coach, trainer and parents. DO NOT return to game or practice until all symptoms are gone and you have received MEDICAL CLEARANCE. Ignoring this warning may lead to another more serious or fatal brain injury. NO HELMET SYSTEM CAN PROTECT YOU FROM SERIOUS BRAIN INJURY INCLUDING PARALYSIS OR DEATH. TO AVIOD THESE RISKS, DO NOT ENGAGE IN THE SPORT OF FOOTBALL.

Ethics What are ethics? Why are they necessary? Dealing with what is good & bad with moral duty & obligation Set of moral principles & values A theory or system of moral values Principles of conduct governing an individual or group Guiding philosophy Define behaviors Promote high standards of practice Provide a benchmark for members to use as a tool for self evaluation Establish a framework for professional behavior & responsibility A standard for occupational identity & maturity

NATA Code of Ethics Summary 1: Respect 2: Comply With Laws 3: Use Sound Judgment 4: Provide a High Standard of Service 5: No Conflict of Interest When Providing Service

Managed Care Concept in which the costs of health care services are monitored closely by insurance carriers… what DR’s are charging for services Insurance carriers usually use the MEDICARE (federal govt. program) allowable as a standard for charges that are accepted Insurance companies often require approval for services, control impatient admission, and length of stay, determine necessity of treatment, contracting with health care providers This system is a way of reducing health care costs. Managed care involves a prearranged system for delivering health care that is designed to control costs while providing quality health care.

General Health Insurance Every athlete should have general/personal health insurance (ex: BCBS, Aetna, United Healthcare, Medicaid) Most schools have a secondary policy Some institutions offer full coverage to athletes. However, this is very expensive and not as common due to the cost. If athletes are not covered by family insurance schools should make sure that general/personal health insurance is purchased. Schools usually offer accident insurance/catastrophic insurance, these are supplemental policies that take over where general/personal health insurance stops.

Reimbursement In the U.S., reimbursement is the primary mechanism of payment for medical services provided Reimbursement comes from the policy holder’s (patient) insurance company and is sent to the health care provider for the services provided… essentially it’s a payment In order to limit cost to insurance companies many have decided to pay for preventative care and place limits/restrictions on where patients may go for treatment Capitation: form of reimbursement used by managed care providers in which members make a standard payment each month regardless of how much service in provided. Some schools use a capitated health fee to help pay for athletic training services. Capitation helps managed care providers recoup healthcare costs

Indemnity Plan The most traditional form of billing for health care The provider charges the patient or a third-party payer (insurance company)a fee for services provided Charges are based on a set schedule fee and may not pay the total amount billed You can see whoever you choose to see, no limitations

Third Party Payers Blue Cross Blue Shield Cigna Aetna United Healthcare Humana Medicare Medicaid Third Party Payers Private Insurance Companies

Health Maintenance Organization Patients Co-pay for services Given specific providers to use Provides preventative measures and limits where you receive care, making exceptions for emergency room visits Patients MUST have permission to see another provider, usually arranged by the Primary Care Physician (PCP) HMO generally pays 100% of the costs if treatment/services are performed at an approved facility HMO generally will not pay (or pay very little) if treatment/services are performed at an out of network facility If students leave their home area, they must change their HMO providers Health Maintenance Organization

Preferred Provider Organization Patients pay a set deductible, and then reimbursement is paid at a rate of 80% (ppo) and 20% (patient). PPOs will usually contract/negotiate reduced rates with specific providers Patients may choose from a list of providers Provide discount healthcare but also limit where you can go for treatment. If patients choose providers out of network the visit may not be covered @ preferred facility all costs are paid PT and additional treatments are provided at no cost or very little cost PPOs reimburse/pay on a fee-for-service basis Preferred Provider Organization

Point Of Service Plan Patients pay deductible and minimal co-pay Point of Service Plan is a combination of HMO and PPO plans Based on an HMO structure but allows the patient to go outside the HMO to obtain services with certain restrictions and under special circumstances Patients can choose their own Primary Care Physician (PCP) If the patient goes out of network, the co-pay may be a percentage of the TOTAL BILL Point Of Service Plan

School Offered Insurance Accident Insurance Catastrophic Insurance Covers accidents on school grounds or at school events where the student is in attendance Protects the student against financial loss from medical and hospital bills, helps control expenses to athlete and family Encourages students to receive prompt medical care and also, encourages prompt recording of injuries Relieves school of financial responsibility Accident insurance for specific sports may need to provide additional protection Pays a limited amount or very little, for serious injuries catastrophic insurance may be required These types of injuries are not as common in athletics but can occur Catastophic insurance will protect an institution against liability claims for serious injuries Without this type of policy athletes, parents and families may have to resort to a lawsuit once insurance benefits have been depleted Begin when expenses have reached $90,000(NCAA, NAIA) Begin when expenses are in excess of $10,000 (National Federation of State High School Associations) EX: Lifetime of extensive medical and rehabilitative care because of a permanent disability

Personal Liability Insurance Covers damages that may arise from injuries occurring on school property Covers claims of negligence, does not protect parties if criminal charges are filed Was supervision reasonable? Was unreasonable risk of harm perceived by the participant? Victim usually takes a ‘shotgun approach’ where everyone is named : ATC, Coach, School Administration, School District, DR. Protects the provider against malpractice, errors, omissions, negligence, etc.

Insurance Claims & Billing Athletes must be covered by a good reliable insurance company (general/personal health insurance) Insurance claims must be filed immediately and correctly General/personal health insurance information on each athlete must be collected at the beginning of each year and kept on file Parents should be aware of the limitations of the school’s policy Parents must understand that their general/personal health insurance is primary and the school policy is secondary Insurance Claims & Billing Responsibilities of the Athletic Trainer & or Coach