Chapter 3: Legal Concerns and Related

IssuesJennifer L. Doherty, MS, LAT, ATC

Academic Program Director, Entry-Level ATEPFlorida International University

Acute Care and Injury Prevention

Liability:

State of being legally responsible for the harm one causes to

another person.

Negligence

•Negligence –The failure to use ordinary or reasonable care that one would normally exercise to avoid injury to themselves or others.

•To establish negligence, one must establish…

–(1) Duty of Care•Part of official job description

–(2) Conduct fell short of the duty to care–(3) Failure to provide care resulted in damages

Standard of Reasonable Care

• Standards of reasonable care– Assumes that a person is of

ordinary and reasonable prudence/caution

– Common-sense – Must operate within the appropriate

limitations of ones educational background

Torts

• Legal wrongs committed against a person •Liability may emanate from… • (1) Nonfeasance

– Failure to perform legal duty (i.e. fail to refer) • (2) Malfeasance

– Performs illegal action (i.e. perform advanced treatment leading to complications)

• (3) Misfeasance– Performs legal action improperly (i.e. spine boarding without maintaining in-line stabilization)

The Role of the ATC

• Athletic trainer has a duty to provide healthcare coverage to athletes

– Job description

• Obligation– The ATC assumes duty of care for athletes– The ATC has an obligation to provide appropriate care

• Sovereign Immunity– Neither the government nor any

individual who is employed by the government can be held liable for negligence

• Good Samaritan Law– Provides limited protection against

legal liability to one that voluntarily provides care

Protection for the ATC

Statutes of Limitation

• Specific length of time an individual can sue for injury resulting from negligence.

– Varies by state but generally ranges from one to three years

• Clock begins at the time the negligent act results in suit or from the time injury is discovered following negligent act• Minors have generally have an extension

Assumption of Risk

•Athlete is made aware of inherent risks involved in sport and voluntarily decides to continue participating•Expressed in written waiver or implied from conduct of athlete once participation begins•Can be used as defense against an athlete’s negligence suit

Reducing the Risk of

Litigation

Athletic Trainer

• Work to establish good working relationships with athletes, parents and coworkers

• Establish policies regarding athletic training facility and coverage

• Develop emergency action plan• Know the medical history of athletes

• Maintain adequate records• Detailed job description• Obtain written consent relative to

providing health care• Maintain confidentiality• Exercise caution with regards to

medication distribution and modality use

• Ensure safe equipment and facilities

• Follow physician’s orders, particularly when dealing with participation of athlete

• Purchase liability insurance• Know scope of practice• Use common sense

Product Liability• Manufacturer of equipment has duty to

design and produce equipment that will not cause injury

• Equipment warning labels– Informs athlete of possible dangers inherent

with product use– National Operating Committee on Standards

for Athletic Equipment (NOCSAE)• Minimum standards for equipment to ensure

safety

• Athletic trainers should not alter equipment– Doing so invalidates the

manufacturers warranty– Results in placing liability solely on

the athletic trainer

General Health Insurance

• Policy that covers illnesses, hospitalization and emergency care– May be offered through academic institutions

for students (athletics)

• Secondary insurance provided through institutions to cover costs above primary insurance coverage– Schools and universities must ensure that

athletes have primary insurance coverage

Professional Liability Insurance

• Protect against damages that may arise from injuries occurring on school property

• Covers against claims of negligence on part of individuals

• Because of rise in lawsuits, professionals must be fully protected, particularly in regards to negligence

• All ATC’s should carry and understand limits of coverage

Catastrophic Insurance

• Catastrophic injuries in athletics are relatively rare, but are staggering to all involved

• Organizations (NCAA, NAIA, NFSHSA) provide additional coverage to deal with lifetime extensive care

Insurance Billing

• Must file claims immediately and correctly• To facilitate, collect insurance information

at the start of the academic year• Letters should be sent home to fully

explain the coverage available and necessary procedures

• Standard forms are the norm, but accurate and thorough completion is critical

Filing an Insurance Claim

• Standard forms are utilized– Must be complete and detailed– More accuracy and thoroughness = quick

return and higher rate of reimbursement

• Billing Codes– Diagnostic code

• Specifies injury/condition that is being treated

– Procedural code

• ATC in clinical setting must be aware of third-party billing procedures

• May need to request approval from insurance companies for treatments to be rendered

• Billing must be in accordance with Current Procedural Terminology set by AMA

• Thorough record keeping is critical throughout the process

Third-Party Reimbursement for

Athletic Trainers• ATC’s have been able to bill third

parties• Most insurance companies refuse to

reimburse• Recently, increase in reimbursement in

a variety of settings• State licensing and credentialing will

aid in this process but will remain concern for clinical ATC’s

• Reimbursement Advisory Group (NATA) responsible for assessing managed care and involvement of ATC’s

• Athletic Training Outcome Assessment project (NATA) developed to present results of 3 year study– Study focussed on functional outcomes, perceptions

of care, physical, social, mental well-being, time lost due to injury and satisfaction of care and treatment

• Third-party payers require outcomes research when evaluating a contract