Legal Liability and Insurance

1. Legal Liability and Insurance Sports Med I Mrs. Dobbins

2. Chapter Objectives • Define the legal concepts of liability, negligence, torts, assumption of risk. • Identify measures that can be taken by both the coach and athletic trainer to minimize chances of litigation. • Describe product liability. • Identify and describe the types insurance.

3. Liability The most frequent legal problem an athletic trainer will face is liability • Liability is responsibility for one’s actions • Specifically when those actions cause harm or injury

4. Liability • Liability can be proven through • Negligent behavior • Failure to inform a patient of all pertinent information • Breach of contract, or • Assault and battery • Athletic training profession is most often liable for negligence

5. Negligence • Two forms of Negligence may occur • Omission • Commission • Omission • Failure to act in a given situation • ATC (because of their certifications) have a responsibility to act if a medical issue arises • Commission • Acts in an improper manner • Because of advanced training, ATC/ LATs are expected to treat a patient appropriately in any medical situation or summon advanced personnel if needed

6. To prove Negligence in Court Patient must demonstrate that 4 criteria's were met: • Must be a duty to act for the defendant The standard is set by states and the NATA has created its own Standard of Care: • Direction- All care performed under the direction of a physician • Prevention • Immediate Care • Clinical Evaluation and Diagnosis • Treatment, Rehabilitation, and Reconditioning • Program Discontinuation- once the patient has received optimal benefit • Organization and Administration

7. To prove Negligence in Court • A breach of duty proven when the AT who is improperly completing their job, violates the standard of care. Example: if an AT allows practice to occur in unsafe environmental conditions (e.g., heat/ cold, poor field conditions)

8. To prove Negligence in Court • Causation- The determination that the actions of a person led to damages and to what extent the person is responsible for the damage caused The result must be foreseeable to the average person If the action was considered unforeseen by a prudent and reasonable AT- then this criterion has not been met.

9. To prove Negligence in Court • Damage If the athlete does not suffer residual damage then his or her injury does not qualify for negligent behavior even if the AT acted in an improper manner. *A lawsuit arguing negligence can be successful ONLY if ALL FOUR criteria have been met.

10. Vicarious Liability • Another concern is Vicarious Liability • Head AT can be held responsible for the actions of AT who are under their supervision • May also occur in AT education programs- when certified AT are held liable for the actions of their students, • It is important in either situations to provide the appropriate training to all members of the AT program and also provide suitable supervision.

11. Good Samaritan Law • Provides limited protection against legal liability to any individual who voluntarily chooses to provide 1st Aid • The law does not condone negligent behavior but protects the individual if injuries occur from appropriate care. • Benefit for AT is during voluntary coverage where the AT is not involved with their traditional employment (depends on the state)

12. Steps to Avoid Litigation • Develop a list of job expectations • Maintain CPR/ 1st Aid Certifications • Develop an Emergency Action Plan • Obtain Consent form/waiver • Conduct pre-participation physicals • Document all injuries • Consistently update education • Periodically inspect facilities and equipment • Maintain effective lines of communication

13. Warn the athlete of the potential dangers inherent in the sport. Supervise constantly and attentively. Properly prepare and condition the athlete. Properly instruct the athlete in the skills of the sport. Ensure that proper and safe equipment and facilities are used by the athletes at all times Work to establish good personal relationships with the athletes. Parents, and coworkers Establish good policies and procedures of operation of an athletic training facility Develop and carefully follow an emergency plan Familiarize yourself with the health status and medical history of the athletes Keep good records that document injuries and the rehabilitation Document efforts to create a safe playing environment Have a detailed job description in writing Obtain written consent for providing health care to minors Maintain confidentiality of medical records. Reducing the Risks of Litigation for Negligence For AT & Coaches

14. Do not dispense prescription drugs, and if allowed by law exercise extreme caution in administering nonprescription medications. Use only those therapeutic methods that one is qualified to use that the law states may be used. Do not permit or use faulty or hazardous general and protective equipment. Develop an understanding that an injured athlete will not be able to return until cleared by the team physician or the athletic trainer Follow the express orders of the team physician at all times. Purchase liability insurance to protect against litigation and be aware of the limitations. Know the limitations of your expertise and the applicable state regulations and restrictions Use common sense in making decisions about the athlete’s health and safety. Reducing the Risks of Litigation for Negligence For AT & Coaches

15. Emergency Action Plan (EAP) A key component to protecting an AT staff from liability is developing an EAP: • A written document that details the standard of care required in an emergency at a specific institution.

16. Product Liability • Manufacturers have a responsibility to design and produce equipment that will not harm or cause injury as long as it is used for as intended. • Manufacturers written guarantee that the product is safe. • Warning labels placed on the helmets informing players of the inherent dangers using this piece of equipment. • National Operating Committee on Standards for Athletic Equipment (NOCSAE) label must be on helmets. • NOCSAE establishes minimum standards for equipment must meet to ensure its safety.

17. Insurance • Insurance: the act of insuring property, life, one’s person and so on against the loss or harm arising in specified condition • Insure- promise of reimbursement in the case of loss;

18. Liability Insurance • Liability Insurance- protects staff from the punitive damages that may incur as the result of a lawsuit • Preserves personal assets from inclusion in the legal proceedings • Personal Liability Insurance • Covers the claims of negligence on the part of individual • Catastrophic Insurance • Covers medical and rehabilitative services for athletes who are permanently disable.

19. Insurance to Protect the Athlete • With managed care and increase in lawsuits insurance cost have elevated dramatically. • The major types of health insurance that coaches must be aware of are • General health insurance • Catastrophic insurance • Accident insurance • Liability insurance (covering errors and omissions)

20. Insurance • Several different types of medical insurance available • 2 basic forms • Medical insurance- covers a predetermined % of an individual’s medical expenses that result from illnesses and injury. • Health insurance- covers the same medical costs, as well as preventive care such as wellness programs.

21. General Health Insurance • Every athlete should have general health insurance: • Covering • Illness • Hospitalization • Emergency care • Institutions who provide the primary insurance coverage pay a very high premium • Most institutions provide secondary coverage once the athlete’s personal coverage has paid. • The coach or athletic trainer need to require athletes to complete a insurance information card and put information on file

22. Types of Health Care Coverage Many types: • HMO- Health Maintenance Organization • PPO- Preferred Provider Organization • POS- Point-Of-Service • EPO- Exclusive Provider Organizations

23. HMOHealth Maintenance Organization • An athlete cannot receive medical treatment insurance coverage from a specialist with prior consent of their primary care doctor; emergencies are the only exception. • Advantage: covers 100% of the costs for all services as long as those services are provided by a pre assigned facility • Disadvantage: when the individual is not able to receive treatment at the specified facility • Especially important for college athletes who attend school away from home • HMO- assigns each member to a doctor usually a primary care MD (who is the gatekeeper) • Athletic trainers and coaches need to understand the limitations and restrictions of the HMO coverage at their institution.

24. PPO Preferred Provider Organizations • Advantage: Larger network (list of approved providers) and if service is rendered at the facility then insurance pays 80%-100% of the cost. • Direct access to medical specialist (no gatekeeper) • If specialist is in-network then you can schedule an appointment directly (no loss of benefits) • Disadvantage: Provide discount health care but also limited where a person can receive treatment for an illness. • Coaches and athletic trainers must be apprised where the athlete should be sent based on the PPO.

25. POS Point Of Service • Combination of HMO and PPO • Based on a HMO structure but allows athletes to go outside the HMO to obtain services (like the PPO) • Flexibility is allowed with certain conditions • This plan offers more flexibility than the traditional HMO but also maintains the network of providers and easy access that the HMO offers.

26. EPO Exclusive Provider Organizations • Similar to the PPO- provides a broad network of MDs who are directly affiliated with the insurance co. • You can see any of the in-network providers and cost is covered 100% • However members must obtain services from an approved MD • Unlike the PPO the providing MD may not be allowed to treat a patient who is not a member of the organization (this limits providers and makes it difficult for an MD to be affiliated with an athletic department)

27. Insurance Coverage • Primary Insurance Coverage: All expenses related to an injury that an insurance co provides with in a policy • Secondary Insurance Coverage: provides for the remaining expenses once the primary coverage plan has completed it’s payments

28. Capitation • Capitation: reimbursement process in which members make a standard payment each month regardless of how much medical treatment is rendered.

29. Insurance Reimbursement • Third Party Reimbursement • The primary mechanism of payment of medical services in the United States. • Health care professionals are reimbursed by policy holders insurance company. • Insurance companies have begun to pay for preventative care to reduce to high cost of hospital care (i.e. pay fees for health club)

30. Insurance • Exclusions: A specific situation that is covered by an insurance co. • May only be covered if injury is sustained in competition, practice etc not non-accident or chronic injuries. • Pre-existing Conditions: A condition that is present prior to the current injury that predisposes an individual to damage. Often considered exclusions for insurance policies.

31. Deductable/ Co-pay • Deductible- the amount for which the person is liable on each injury before an insurance co will make payment (you pay first) • Co-pay: a relatively small fixed fee required to be paid for each office visit, out patient service, or filling of a prescription.

32. Other Insurance Information • Accident Insurance: • Utilized to protect the student while on school grounds while they in attendance. • Schools general insurance might be limited and accident insurance can assist when a student sustains an injury that provides additional coverage. • This type of coverage is limited and does not require knowledge of fault and the amount it pays is limited • Does not cover catastrophic injuries

33. Catastrophic Insurance Coverage • Catastrophic: • Disastrous; ruinous • relates to a permanent injury of the spinal cord, leaving the athlete quadriplegic or paraplegic • Plan that covers any injury so severe that the patient’s quality of life is dramatically compromised. • Care is usually very expensive (24-hour care, extended stay facility) • The NCAA purchases a catastrophic policy for all its member institutions to provide for any traumatic injuries that occur to the covered athlete • The max payout is $20million in a lifetime benefit after a $75,000 deductable • The premium is paid with the proceeds from the Division I Basketball Championships

34. Documentation • Documentation and record keeping are essential to ensure and demonstrate that each athlete has consistently received the best care possible • Also assists in protecting the AT in the event that legal issues arise

35. HIPAA • The Health Insurance Portability and Accountability Act places a monetary fine and jail term as punishment for any confidentiality violations to protect both athletic and nonathletic injury information. • Staff may discuss daily operations but may not discuss any injury information outside of the AT “family”. • Confidentiality agreement includes coaches, teammates and the media unless the injured athlete gives written permission for the release of information to specific individuals.

36. Review • What are the 4 criteria needed to prove negligence? • What is an EAP? • List 4 types of health care coverage

37. Chapter Overview A great deal of care must be taken in following coaching and athletic training procedures that conform to the legal guidelines governing liability. Liability is the state of being legally responsible for the harm one causes another person. The standard of reasonable care assumes that a coach acts according to the reasonable standards of care of any individual with similar educational background or training. A coach who fails to use ordinary or reasonable care-care that persons would normally exercise to avoid injury to themselves or to others under similar circumstances-is deemed negligent. Although athletes participating in a sports program are considered to assume a normal risk, this assumption in no way exempts those in charge from exercising reasonable care.

38. Chapter Overview Cont’d Coaches can significantly decrease risk of litigation by making certain that they have done everything possible to provide a reasonable degree of care to the injured athlete. The major types of insurance that coaches should be familiar with are general health insurance, catastrophic insurance, accident insurance, and liability insurance, as well as insurance for errors and omissions. Third-party reimbursement is the primary mechanism of payment for medical services in the United States. A number of different health care systems-including health maintenance organizations, preferred provider organizations, point of service plans, indemnity plans, and capitation plans-have been developed to contain costs. It is essential that the coach or athletic trainer file insurance claims immediately and correctly.

39. QUESTIONS / COMMENTS?