Legal Issues in Athletic Training

Credentialing

• Licensure**

• Certification

• Registration

• Exemption

Risk Management

• Help organization identify and manage risks

Obvious

- holes in playing field

- unpadded obstacles

Inferences

- does artificial turf / rubber floor increase injury rates?

- one ATC : sport coverage

Reducing Risks• Preparation for activity

• Pre season exams - assess activity areas• Fitness levels - monitor environmental conditions

• Conduct of activity- maintain equipment - adequate work / rest intervals

- proper instructional techniques

• Injury management- physician supervision - evaluate / treat promptly

- supervise AT students

• Records management- document dr. orders, tx plan, tx. record, patient’s progress

Malpractice

• “liability generating conduct associated with an adverse outcome of patient treatment”

• Negligent care• Failure to obtain informed consent• Intentional conduct• Breach of contract• Use of defective product• Abnormally dangerous treatment

Examples of Malpractice

• Failure to prevent injury by permitting an athlete to participate when he is not medically qualified to do so

• Failure to have an ambulance, or qualified medical personnel

• Failure to have a “plan of action”• Failure to identify a condition• Failure to examine an athlete properly after an

injury

Torts

“legal wrong other than breach of contract for which a remedy will be provided”

• Initiated by plaintiffs in civil court as opposed to criminal cases initiated by the government

- intentional tort – libel or slander- negligent tort – more common in

AT

Negligence

• Fails to act as a reasonably prudent athletic trainer would act under the circumstances.

• Standards set by• Implicit expectations (treat with respect)• Policy and procedure manuals• NATA Role delineation / Educational

Competencies• Position statements (ACOSM, NCAA,

NATA)

• Omission

–Failure to do something

• Commission

- performs an act that should not have

been done

Five Components of Negligence

• Conduct

• ATC did or did not take action• Thoughts, attitudes, intentions not relevent

Existence of Duty

• What is our “duty”?

- job descriptions

- NATA competencies• Abandonment

- once services are provided, patient

must agree / voluntarily terminate relationship

- substituting practitioner could be charged

Breach of Duty

• Standard of Care- perform duties as other competent athletic trainer would exercise under the circumstances- comparisons to geography, conditions, other health care professions

- Herbert, D.L., (1992). The sports medicine standards book. Canton OH.

Causation

• Must prove the breach was the legal cause of the injury

Actual cause: actions were a determining factor in damage (may be shared)

Proximate cause: was injury foreseeable?

Damage

• Must prove suffered damages

- Harm has to be proven

- physical damage

- emotional distress

- loss of …..

Other Issues

• Statue of Limitations

• Assumption of Risk

• Sovereign Immunity

• Good Samaritan Immunity

• Comparative/Contributory Negligence

• Product Liability

Case #1: Palsgarf v Long Island RR Company

• RR employee helping a passenger on to train

• Passenger drops box containing fireworks which goes off and injures the passenger

• Court ruled that was not foreseeable

• Proximate Cause

How do you reduce the risk of litigation as a coach, athletic

trainer/allied health professional?

Coach

• Warn athletes of potential dangers involved in sport

• Supervise regularly and attentively• Prepare and condition athletes• Instruct athletes on skills of their

respective sports• Ensure proper and safe equipment and

facilities

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

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

• Current National Injury Data-Gathering Systems– State of the art injury surveillance is still developing– Ideal situation

• Epidemiological approach that studies relationship of various factors that influence frequency and distribution of injury in sport

• Extrinsic factors (activity, exposure, equipement)• Intrinsic factors (age, gender, neuromuscular aspects,

structural aspects….etc)

– Number of different surveillance systems in place

• Surveillance Systems– National Safety Council (general sports injury data)– Annual Survey of Football Injury Research (public

school, college, professional, sandlot football injury data)

– National Center of Catastrophic Sport Injury Research (Tracks catastrophic injuries in all levels of sports)

– NCAA Injury Surveillance System (data collected on most major sports- ATC data collection)

– National Electronic Injury Surveillance System (Monitor injuries relative to different products --consumer safety, determine if products are hazardous or defective)

– National High School Sports Injury Registry (tracks injuries in specific sports at 150-200 high schools)

Universal Precautions in Athletic Environment

• 1991 OSHA (Occupational Safety and Health Administration) established standards for employer to follow that govern occupational exposure to blood-borne pathogens

• Developed to protect healthcare provider and patient

• All sports programs should have exposure control plan– Include counseling, education, volunteer testing, and

management of bodily fluids

“The Law”- Selected Major Laws

• Family & Medical Leave Act (FMLA) (Federal)

• Non-discrimination laws (Federal and State)

• Workers’ Compensation laws (State)

• Wage & hour laws (Federal and State)

Family and Medical Leave Act

• Staff member must meet eligibility criteria– At least 1250 hours of service in prior 12 months

– At least 12 months of employment

• Must be taken for a qualifying condition – “serious health condition”

• If eligible, can take up to 12 weeks in a 12 month period

Non-discrimination Laws• Includes state and federal laws

• Do not discriminate on the basis of a protected class & remember: Assume everyone is in a protected class!!

• Harassment (sexual and on other grounds) falls here– Same sex harassment is actionable (1998 Supreme Court

decision)

• Includes Americans with Disabilities Act, which may impose an obligation to accommodate if the person has a disability

Wage and Hour Laws

• Fair Labor Standards Act – Federal

– Exempt employees

– Non-exempt employees