Athletic Training Management

Athletic Training Management Chapter 8 Risk Management

Risk Management • A risk is an exposure to the chance of injury or financial loss • Damage awards can be based on permitting injured or unfit persons to play; failing to employ competent personnel; failing to provide competent training, instructions, or supervision; and negligently moving an injured player

Risk Management • Risk management can be thought of as the achievement of two interrelated tasks • The first task is to recognize primary risks and take all reasonable steps to eliminate or reduce them • Since not all risks can be eliminated, establishing the defense of suits that are filed is the second task • There are three ways to decrease risk • First is to eliminate the risk by eliminating the conditions that cause the risk • not possible

Risk Management • Giving required medical care opens the provider up to a variety of injury-causing situations • Second is to share the risk with others, which is the basis for liability or malpractice insurance, and which can be very expensive if there is no active plan to reduce risk exposure • Third is to reduce the risk by looking at all aspects of the activity

Risk Management • To establish duty to act courts look to national norms established in state practice acts. • Athletic training has little uniformity state to state • Athletic training is not credentialed in all 50 states • Courts therefore have broad authority to define duty and breach of duty

Risk Management • Is an athletic trainer, when under the direct supervision of a licensed physician, able to perform all procedures for which the athletic trainer has had course work and clinical experience? • This is clearly the case in many clinical settings • Standard first aid also teaches recognition of medical conditions such as hyperthermia, hypothermia, and diabetic coma

Risk Management • In states with licensure, courts have a conceptualization of the profession of athletic training • However, in those states without credentialing, the professional association’s documentation standards may have a major influence • With the NATA Education Council publication, Athletic Training Educational Competencies, 4th ed., and the BOC Role Delineation Study, 4th ed., the courts have documentation for establishing standards that include, separate domains in pathology of injuries and illnesses, orthopedics, medical conditions, acute care, and pharmacology, among others

Risk Reduction • Prevention of injury • Preparticipation physical examinations (see Ch 15) • Assessing the level of fitness necessary to conduct the activity • Assessing practice and competition venue conditions for dangerous playing conditions, lack of space, environmental hazards such as extremes of heat and humidity, and lack of water availability

Risk Reduction • Conduct of the activity • Is the equipment adequate for the level of play? • Is it safe, undamaged, and the best that can be obtained for the available money? • If it is unsafe, but money dictates that no new equipment can be purchased, perhaps the activity should be suspended or eliminated • How the coaches present the techniques and attention to the rules is important • There are court cases from teaching improper techniques such as spearing in football causing catastrophic injury

Risk Reduction • Coaching methods also involve the length of work intervals, timing of rest intervals, and the timing of water breaks • When there is an injury there must be a clear demarcation of who is responsible for deciding questions such as return to play • Physicians are not always present • Coaches must understand that athletic trainers are the physicians representative who will make decisions based on what is best for the athlete, not the team • It is best to have this understanding in writing before practice/play begins

Risk Reduction • Treatment of injuries • Proper evaluation by the athletic trainer, documented in full and transmitted to the physician in charge is crucial • Emergency first aid equipment and supplies must be adequate • Therapy and rehab equipment must be in good working order • Proper referral procedures must be followed

Risk Reduction • Direct supervision of the athletic training staff by licensed physician is critical • Physicians should be under contract (whether paid or volunteer) delineating responsibilities • Adequate professional staff to supervise the clinical instruction of athletic training students while providing patient care • Improper actions of students may expose the staff to vicarious liability • In summer, environment precautions must be observed

Risk Reduction • Record keeping (see chapter 10) • Written records are the best way to document that duty has been met • Most important information on an injury evaluation includes: • Physician’s orders • Treatment plan • Treatment record • Progress reports

Basic Defenses to Negligence • Contributory negligence arises when the plaintiff’s own negligence contributed to the proximate cause of the injury • In this situation the plaintiff is barred from recovery of damages • The plaintiff has the duty to protect himself or herself from being injured • When Bob, a scholarship football player in season, suffered a first-degree ankle sprain at the student recreation center on Thursday evening playing basketball, and then sprained the ankle again during a game due to the negligent action of sideline personnel, there is a question of contributory negligence • This is not to be confused with failure to mitigate damages, which generally occurs after the fact, while contributory negligence generally occurs before the fact

Basic Defenses to Negligence • Comparative negligence was developed as a reaction to the all-or-none principle of contributory negligence • Some states with a modified comparative negligence policy have a threshold for recovery where a plaintiff who is equally or less negligent than the defendant may recover damages. • Most states have moved to a policy of pure comparative negligence • In a pure comparative negligence state, the plaintiff will have to prove all of the elements of negligence, the defendant will try to prove contributory negligence due to the plaintiff‛s own actions and then the jury will establish what percent each side is at fault • Theoretically, defendants are more careful with a comparative negligence system, since the plaintiff‛s participation does not affect the awarding of damages.

Basic Defenses to Negligence • A statute of limitations is a state law that sets the length of time that persons may sue for damages under either negligence or malpractice laws • In the states where athletic training is licensed, the statute of limitations probably extends to cover athletic trainers • Where athletic trainers are covered by malpractice laws, the statute specifies from one to three years (depending on the state) to initiate action • Where athletic training is not regulated, there may be no statute of limitations to cover the actions of the athletic trainer

Basic Defenses to Negligence • It is also important to note that in most states the statute of limitations is tolled for a minor (that is, the time factor is postponed until that person reaches either 18 years old or an age set in the statute) • An athlete injured at age 7 can in theory start the statute of limitations at age 18 • Records, therefore, need to be kept until there is no further exposure to the time limit • In all but seven states, the statute of limitations is also tolled for fraudulent concealment of information that would have caused the patient to consider his or her options for suing the professional

Basic Defenses to Negligence • It is an open question whether damage that appears later in life (e.g., traumatic arthritis, degenerative diseases that may require joint replacement) can still fall under the time limits of these laws • In an assumption of risk defense, the athletic trainer will assert that the plaintiff knew before commencing an activity that the activity was dangerous and chose to participate anyway • There are two types of assumption of risk, express assumption of risk and implied assumption of risk

Basic Defenses to Negligence • In express assumption of risk, the plaintiff agrees not to hold the defendant liable in advance of possible injury • Even if an act is perpetrated outside the normal playing time, as long as it is no more dangerous than that found during play, the risk is assumed by the participants • This line of thought has long legal standing, but has been narrowed considerably in recent years as courts assess whether the agreement is contrary to public policy

Basic Defenses to Negligence • Implied assumption of risk is shown when a person has witnessed an event before, including possible hazards to participants or spectators, yet willingly becomes part of the event • For assumption of risk to be valid, the athlete must “fully appreciate” all of the potential risks and possible outcomes from exposure to these risks • In addition, the athlete must “knowingly, voluntarily, and unequivocally” decide to participate in the face of these risks

Basic Defenses to Negligence • For an athlete to fully appreciate the risks, many courts are stating that the athlete must be informed of all possible risks and outcomes • In the case of Krueger v. Bert Bell NFL Player Retirement Fund (234_Cal. Rptr._579 [Cal. App. 1 Dist. 1987]), the court found that not informing the plaintiff of all aspects of his medical condition constituted fraud in that Mr. Krueger was not given the opportunity to make a different decision concerning his return to play after knee surgery. He admitted he would have continued to play, but could not decide for himself without the withheld information

Basic Defenses to Negligence • There are several things that should be taken into consideration about assumption of risk • First, assumption of risk is not a defense against defendant's negligence • Courts have held that even a signed waiver cannot excuse negligence since it is not good public policy to allow persons to avoid responsibility of a duty to protect participants

Basic Defenses to Negligence • Second, minors cannot accept responsibility for protecting themselves even though they were completely informed of the risks and parents cannot waive their child's rights • Even adults capable of understanding the risks inherent in participation cannot waive hidden risks that the defendants were or should have been aware of • People cannot assume risks which they are not aware of

Basic Defenses to Negligence • Act of God defense is based on the concept that all risks were foreseeable and covered, yet the plaintiff was injured by circumstances completely beyond the control of the defendant • This defense cannot be used to shield a defendant from a negligence claim • As with assumption of risk, this defense is appropriate only when there has been no negligence • The most important point is foreseeability • Any accident that cannot be foreseen the plaintiff cannot be protected from

Basic Defenses to Negligence • The biggest problem with this defense is that some people believe occurrences in nature such as storms, earth quakes, lightening, or high heat and humidity fall into this classification • Lightening is clearly foreseeable during thunder storms • Heat and high humidity clearly make heat stroke or heat exhaustion foreseeable consequences • To ignore the condition and fail to take proper precautions is negligent and subject to liability for any injuries that result

Basic Defenses to Negligence • Good Samaritan laws state that those who come to the aid of an injured person and act within their standard of care are immune from actions for damages • These laws do not cover negligent conduct • There is an assumption that no compensation to the athletic trainer was provided • The most common use of these laws occurs when covering state games and charitable events

Basic Defenses to Negligence • For sovereign immunity, at common law, “the king could do no wrong” and was immune from tort actions unless he consented to being sued • The rule was modified at the federal level in 1946 by the Federal Tort Claims Act, which allows the government to be considered liable in the same way as private individuals with the exception of intentional tort or discretionary acts • This latter exception is most often the defense used by public employees in the medical area.

Basic Defenses to Negligence • Many athletic trainers are employed by governmental units (public colleges or universities and secondary schools), and use discretionary actions in the conduct of their duties, a situation that gives the athletic trainer sovereignimmunity where allowed by the governing unit • This has allowed public employee medical professionals to evade claims of negligence in some locations

Basic Defenses to Negligence • A waiver is a legal contract in which the signatories give up the right to sue for damages in exchange for services performed for them • Contract law carries some standard requirements. • First, the participant signing the waiver must be competent and of majority • A second element is the exchange of adequate ‘consideration’ (e.g., allowing participation, use of facilities) • Another essential element is mutual assent or a ‘meeting of the minds’

Basic Defenses to Negligence • This involves an offer by the first party and acceptance by the second party. If the offer is clear and obvious, then this element is present • It is important to remember that when a parent signs a waiver, it only means the parent gives up the right to sue (in theory, after injury the parent may claim duress and many other things to void the waiver)

Basic Defenses to Negligence • A minor has been found to be unable to waive the right to sue by parental signature • Minors are also held in court to be incapable of signing a waiver because they cannot legally enter into a binding contract • This situation may be changing, however, as courts in Ohio, California, Arizona, and Mississippi have all upheld waivers signed by parents or by parents and children as binding

Basic Defenses to Negligence • The courts may also declare that it is not in the public interest to recognize a waiver, so that even though one is signed, it is null and void • In addition, spouses of married patients may claim “loss of consortium” due to injury • Loss of consortium is interference with and injury to the marital relationship including companionship, conversation, comfort, sexual relations, and other aspects attributable to marriage • This is a separate cause of action not covered if the athlete signs a release of liability waiver

Basic Defenses to Negligence • It is possible to transfer some of the risk to the athletes by using the informed consent procedures and assumption of risk • It is important to remember that an athlete cannot sign a waiver for willful or wanton misconduct, only unforeseeable acts

Basic Defenses to Negligence • Information in medical and student records is protected by Federal and state laws. • It may be advantageous to an athlete for this information to be viewed by a 3rd party • Adjudicating insurance claims • Evaluation potential for professional sports employment • Each individual case should be accompanied by a written release signed by the athlete allowing a specific 3rd party access to the records

Basic Defenses to Negligence • Each time the records are released, a new waiver should be obtained • Blanket release forms are potentially injurious to the athlete and should be avoided • The athlete should be made aware in writing as part of the release that once the records are out of the medical staff’s possession that the athletic trainers and physicians have no control over who accesses this information • The athlete should also be aware that when a waiver is signed, the entire medical record is released

Basic Defenses to Negligence • Another type of waiver covers when an athlete has been told that either a preexisting or a new condition has rendered participation dangerous • This waiver must inform the athlete of ALL possible consequences (including death, persistent vegetative coma, and all other lesser maladies) • It must also state that the physicians have told the athlete not to participate but the athlete is going against these orders at his or her own risk • Parents and spouses need to sign these waivers, too

Basic Defenses to Negligence • Some authorities have suggested that rather than executing a waiver, the medical staff should tell the athlete to sue for the right to participate • The decision to allow participation after the waiver is signed is by the court, not the physicians • The sports medicine staff and coaches cannot then be held as coercive, risking a judge throwing out the waiver

Communication • Communication between the sports medicine team and the athlete about the comprehensive nature of the athlete’s health is vital to an informed decision • Sports organizations need to have policies in place acknowledging the independence of their medical staff from team management

Communication • Accurate, complete records of all discussions and information provided to the athlete must be part of the permanent medical record • There has been questions in the past concerning the objectivity of medical staff employed by an organization delivering health care services to employees of the organization To whom does the physician owe duty? The employee (athlete) or the organization that employees him/her?

Communication • Graham found the best documentation of this independence is a written contract defining roles • Unfortunately, few athletic trainers or team physicians have written contracts or written job descriptions • Graham also pointed out the need for continuing education • Other studies have found a disconnect between what athletic trainers believe is important in education programs and reasons athletic trainers are being sued

Communication • A study by Zylks found that half of the competencies in the prevention domain were valued by practicing athletic trainers while Leverenz found that in the 13 cases in appellate law between 1960 and 1989, five dealt with prevention issues • According to Gallup, when a suit is filed, 60% of the time the suit is dropped, 30% are settled out of court, 10% of the time the suit actually goes to trial, and 2% of the time the plaintiffs prevail

Athletic Training Management