The Law of Sports Injury

1. The Law of Sports Injury Chapter 3

2. The field of sports medicine has witnessed a dramatic increase in the amount of litigation over the last decade • The coach is often the first on the scene • His/her decisions and actions at the time of injury are critical to the welfare of the athlete • Inappropriate decisions and actions may jeopardize the injured participant and lead to legal action by the athlete and/or parents or legal guardians • A study of 104 high school athletic coaches found a large percentage lacked adequate first aid knowledge • When a close game was at stake, a significant percentage of the coaches reported a conflict of interest when a starting player was injured (Dunn & Ransone, 1996).

3. There are a number of reasons for increase in law suits • According to Appenzeller (2000), in US people have a right to sue • Some participants believe they should be able to participate without the risk of injury • Monetary expense associated with many injuries • May sue to recover for medical expenses • Insurance companies settle lawsuits out of court • Opting to pay a sum of money • Huge increase in the number of participants • Greater visibility of sports through the media • Rising expectations regarding legal negligence

4. The Concept of Tort Tort is defined as harm, other than a breach of contract, done to another for which the law holds the wrongdoer responsible (Ray, 1994; Schubert, Smith, & Trentadue, 1986) Negligence is a type of tort and is defined as the failure to do what a reasonably careful and prudent person would have done under the same or like circumstances or, conversely, as doing something that a reasonably careful and prudent person would not have done under the same or like circumstances

5. Negligence • Two types of negligence: • Commission • A legal liability arising when a person commits an act that is not legally his or hers to perform • Ex) high school football player (plaintiff) who claims that permanent quariplegia resulted from improper first aid performed by the coach at the time he sustained a neck injury during a game. • Omission • Failure to act, failure to perform a legal duty • Ex) same situation if the coach failed to act to prevent the injured player from being improperly moved by concerned teammates or other nonmedical personnel.

6. Four elements that must be present in order to prove negligence • 1. Duty • An obligation recognized by the law requiring a person to conform to a certain standard of conduct for the protection of others against unreasonable risks • 2. Breach of Duty • A failure to conform to the standard required • 3. Proximate or legal cause • A reasonably close causal connection between the conduct and the resulting injury • 4. Damage • Actual loss resulting to the interest of another • According to Appenzeller (1978), proving the absence of one or more of the four elements is the best method of defense in a negligence suit

7. Other ways of defeating a negligence suit… • Contributory negligence • Plaintiff is found to be in part or totally responsible for the injury • Comparative negligence • This allows for the plaintiff to receive partial compensation on a prorated basis • If a momentary reward is given, it is based only on the percentage of negligence assigned to the defendant • Assumption of risk • Plaintiff assumes responsibility for injury • The plaintiff agrees to participate in the sport knowing that there is a chance of suffering an injury • Act of God • Concedes that the injury occurred as a result of factors beyond the control of the defendant • Ex) being injured or killed by an earthquake that occurs during a cross-country running event

8. What is the Coach’s Liability? • Historically, a coach employed by government institutions has enjoyed a certain degree of immunity from tort litigation under doctrine of sovereign immunity • More injury liability cases are now being contested successfully against coaching personnel • Therefore, protection under the doctrine of sovereign immunity is no longer guaranteed (Berry, 1986) • Should have some sort of written contract outlining specific duties (Graham, 1985) • Such a document provides a level of protection from litigation as long as the coach functions within the context of the contract

9. Are Coaches Protected? • Most states have Good Samaritan laws • Serve to protect citizens who voluntarily provide first aid to an injured person • Developed to encourage the average citizen to render first aid in an emergency • Coaches and other school personnel do have a duty to provide appropriate emergency care and, as a result, do not enjoy immunity from tort claims under Good Samaritan laws • Imperative that the coach be protected by some form of liability insurance • In interscholastic or intercollegiate setting is generally covered by insurance provided by the employer • A volunteer coach may not have any liability coverage • Never assume you are covered

10. Steps to reduce a coach’s chances of being sued • Written contract • Certification in basic or advanced first aid, cardiopulmonary resuscitation (CPR), and the use of an automated external defibrillator (AED) • Emergency plan • Parental consent form (for athletes younger that 18 years of age) • Mandatory comprehensive preparticipation physical evaluation • Documentation of all injuries • Federal regulations knows as the Health Insurance Portability and Accountability Act (HIPPA) • Strict limitations on the release of personal health information to third parties, such as the media • Carefully monitor how information regarding an athlete’s injury is distributed to the media, if at all • Attendance at in-service seminars and/or postgraduate classes • Periodic inspections of facilities and/or equipment • Development and maintenance of effective lines of communication

11. Steps one should take if being sued • Coaches first call their insurance company and then contact their lawyer (Appenzeller, 2000) • Obtain proper advice about how to protect themselves • Pertinent facts related to the case can be recorded while events are still recent • Write a detailed description of all events leading up to and immediately following the injury • Signed statements by eyewitnesses if possible • Not make statements to the medial without the advice of an attorney (appenzeller, 2000) • Avoid compromising their position

12. Ethics of sports-injury care Athletes health and safety should be the ultimate priority for all those involved in organized sports Sports are not viewed as a business with an increasing emphasis on winning and earning monetary rewards Athletes (often their parents or legal guardians) pressure coaches for an opportunity to play Coach must resist the temptation to circumvent the recommendations of medical personnel when returning an injured athlete to participation Unethical behavior by a coach will in all probability be considered negligence by a court of law

13. State Regulating Athletic Training • Medical and allied health professionals are regulated at the state level with intent being to protect the public from incompetent practitioners • Several different types of regulation of athletic trainers are presently in place in 47/50 states • Licensure is considered the “gold standard” for professional regulation of athletic trainers • Other forms include: • Registration, certification, and exemption