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Chapter 3: Legal Liability and Insurance

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Legal Concerns of the Coach and Athletic Trainer

• Negligence suits involving coaches, athletic trainers, school officials and physicians have increased in frequency and amount of damages awarded

• Liability – Being legally responsible for the harm one

causes another person

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Standard of Reasonable Care•Negligence: the failure to use ordinary or reasonable care.

•Standards of reasonable care–assumes that a person is of ordinary and reasonable prudence–bring commonsense approach to the situation–must operate within the appropriate limitations of one’s educational background

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Negligence•Care giver does something a reasonably prudent individual would not.

•Care giver fails to do something a reasonably prudent individual would not.

•Athletic trainer has a duty to provide coverage to athletes (obligation)

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• Individual possessing higher level of training will possess higher level of competence

• Once coach or athletic trainer assumes duty of caring for athlete, that person has an obligation to provide appropriate care

• Obligation to provide services vs. Scope of employment

• Good Samaritan Law– Provides limited protection against legal

liability to one that provides care should something go wrong

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Torts

•Legal wrongs committed against a person (liability results)•May emanate from

–Nonfeasance (fail to perform legal duty, i.e. fail to refer)

–Malfeasance (performs action that is not his/hers to legally perform, i.e. perform advanced treatmentleading to complications)

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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 generally have an extension

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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

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• Does not excuse overseers from exhibiting reasonable care and prudence in regards to conduct of activities or foreseeing potential hazards

• Many and varied interpretations (particularly with minors)

• Often a waiver will stand in court except in incidents of fraud, misrepresentation, or duress

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Product Liability

• Liability of any or all parties involved in manufactured product for damages caused by product– Includes manufacturer of components,

assemblers, wholesaler, and retail store owner• Products with inherent defects are subject to

liability suits• May be based on negligence, strict liability,

or breach of warranty fitness

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• Manufacturer of equipment has duty to design and produce equipment that will not cause injury

• Express warranty– Manufacturer’s written guarantee – product safety

• 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

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Insurance• Major changes in insurance have occurred

in light of managed care

• Major increases in the number of lawsuits

and cost of insurance

• Medical insurance is a contract between the

company and policyholder

• Company agrees to pay portion of medical

bills following payment of a deductible

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General Health Insurance• Policy that covers illnesses, hospitalization and

emergency care• Sometimes 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 (in place or arranged for)

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Reimbursement

• Primary mechanism of payment for medical services in the U.S.

• Policyholder insurance company reimburses health care providers for services rendered

• Number of different options– Pre-arranged systems– Payment for preventive care– Other systems developed to contain costs

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Health Maintenance Organization

• Provide preventive measures and dictate where individual can receive care

• Permission must be gained to see someone outside of the plan (except in emergencies)

• HMO will pay 100% of costs if care rendered within the HMO plan providers

• ATC’s must have working knowledge of HMO limits and restrictions

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Preferred Providers Organization

• Provide discount health care and also limit where treatment can be obtained

• Must be aware of what facilities are approved for the program in order have cost completely covered

• May include additional types of coverage (physical therapy)

• PPO pay on a fee-for-service basis

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Point of Service

• Combination of HMO and PPO• Based on HMO model but allows for care

outside of the plan• Flexibility is allowed for certain conditions

and circumstances

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Indemnity Plan

• Most traditional form of billing for health care

• Fee-for-service plan that allows insured party to seek care without restrictions

• Provider charges patient or third-party payer

• Charges are set on fee schedule

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Capitation

• Form of reimbursement where members make standard payment monthly regardless of services rendered

• Managed care plans utilize this practice

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Accident Insurance

• Low cost plan to cover accident on school grounds to student

• Protects student against financial loss from medical and hospital bills

• Provides for additional protection for institution above regular policy

• Will cover costs associated with hospital care, surgery, and catastrophic injuries

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Insurance to Protect Coach, Athletic Trainer and Other

Personnel• 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

• Will cover negligence in civil case – not criminal complaint

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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

• Errors and omissions liability insurance has evolved to protect individuals against suits claiming malpractice, negligence, errors and omissions (each person should still have personal liability insurance)

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• Ensuring that all athletes and faculty/staff coverage is in place is critically important

• Filing of claims, at times, is the responsibility of the athletic trainer

• Can be very time consuming taking the ATC away from other responsibilities

• Additional staff may be necessary to deal with added responsibilities

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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