© 2006 McGraw-Hill Higher Education. All rights reserved. Athletic Training Management Chapter 8...

© 2006 McGraw-Hill Higher Education. All rights © 2006 McGraw-Hill Higher Education. All rights reserved. reserved.

Athletic Training Athletic Training ManagementManagement

Chapter 8Chapter 8

Risk ManagementRisk Management



A risk is an exposure to the chance A risk is an exposure to the chance of injury or financial lossof injury or financial loss

Damage awards can be based on Damage awards can be based on permitting injured or unfit persons permitting injured or unfit persons to play; failing to employ competent to play; failing to employ competent personnel; failing to provide personnel; failing to provide competent training, instructions, or competent training, instructions, or supervision; and negligently moving supervision; and negligently moving an injured playeran injured player


Risk ManagementRisk Management Risk management can be thought of as the Risk management can be thought of as the

achievement of two interrelated tasksachievement of two interrelated tasks The first task is to recognize primary risks and The first task is to recognize primary risks and

take all reasonable steps to eliminate or reduce take all reasonable steps to eliminate or reduce themthem

Since not all risks can be eliminated, Since not all risks can be eliminated, establishing the defense of suits that are filed establishing the defense of suits that are filed is the second taskis the second task

There are three ways to decrease riskThere are three ways to decrease risk First is to eliminate the risk by eliminating the First is to eliminate the risk by eliminating the

conditions that cause the riskconditions that cause the risk not possiblenot possible


Risk ManagementRisk Management Giving required medical care opens the Giving required medical care opens the

provider up to a variety of injury-causing provider up to a variety of injury-causing situationssituations

Second is to share the risk with others, Second is to share the risk with others, which is the basis for liability or which is the basis for liability or malpractice insurance, and which can be malpractice insurance, and which can be very expensive if there is no active plan to very expensive if there is no active plan to reduce risk exposurereduce risk exposure

Third is to reduce the risk by looking at all Third is to reduce the risk by looking at all aspects of the activityaspects of the activity



To establish duty to act courts look To establish duty to act courts look to national norms established in to national norms established in state practice acts.state practice acts. Athletic training has little uniformity Athletic training has little uniformity

state to statestate to state Athletic training is not credentialed in Athletic training is not credentialed in

all 50 statesall 50 states Courts therefore have broad authority Courts therefore have broad authority

to define duty and breach of duty to define duty and breach of duty



Is an athletic trainer, when under the Is an athletic trainer, when under the direct supervision of a licensed direct supervision of a licensed physician, able to perform all procedures physician, able to perform all procedures for which the athletic trainer has had for which the athletic trainer has had course work and clinical experience? course work and clinical experience? This is clearly the case in many clinical This is clearly the case in many clinical

settingssettings Standard first aid also teaches recognition of Standard first aid also teaches recognition of

medical conditions such as hyperthermia, medical conditions such as hyperthermia, hypothermia, and diabetic comahypothermia, and diabetic coma


Risk ManagementRisk Management In states with licensure, courts have a In states with licensure, courts have a

conceptualization of the profession of athletic conceptualization of the profession of athletic trainingtraining

However, in those states without credentialing, However, in those states without credentialing, the professional association’s documentation the professional association’s documentation standards may have a major influencestandards may have a major influence

With the NATA Education Council publication, With the NATA Education Council publication, Athletic Training Educational Competencies,Athletic Training Educational Competencies, 44thth ed., and the BOC ed., and the BOC Role Delineation Study,Role Delineation Study, 4 4thth ed., the courts have documentation for ed., the courts have documentation for establishing standards that include, separate establishing standards that include, separate domains in pathology of injuries and illnesses, domains in pathology of injuries and illnesses, orthopedics, medical conditions, acute care, orthopedics, medical conditions, acute care, and pharmacology, among othersand pharmacology, among others


Risk ReductionRisk Reduction

Prevention of injuryPrevention of injury Preparticipation physical examinations Preparticipation physical examinations

(see Ch 15)(see Ch 15) Assessing the level of fitness necessary Assessing the level of fitness necessary

to conduct the activityto conduct the activity Assessing practice and competition Assessing practice and competition

venue conditions for dangerous playing venue conditions for dangerous playing conditions, lack of space, environmental conditions, lack of space, environmental hazards such as extremes of heat and hazards such as extremes of heat and humidity, and lack of water availabilityhumidity, and lack of water availability


Risk ReductionRisk Reduction Conduct of the activityConduct of the activity

Is the equipment adequate for the level of Is the equipment adequate for the level of play?play?

Is it safe, undamaged, and the best that can be Is it safe, undamaged, and the best that can be obtained for the available money?obtained for the available money?

If it is unsafe, but money dictates that no new If it is unsafe, but money dictates that no new equipment can be purchased, perhaps the activity equipment can be purchased, perhaps the activity should be suspended or eliminatedshould be suspended or eliminated

How the coaches present the techniques and How the coaches present the techniques and attention to the rules is importantattention to the rules is important

There are court cases from teaching improper There are court cases from teaching improper techniques such as spearing in football causing techniques such as spearing in football causing catastrophic injurycatastrophic injury


Risk ReductionRisk Reduction Coaching methods also involve the length of Coaching methods also involve the length of

work intervals, timing of rest intervals, and the work intervals, timing of rest intervals, and the timing of water breakstiming of water breaks

When there is an injury there must be a When there is an injury there must be a clear demarcation of who is responsible for clear demarcation of who is responsible for deciding questions such as return to playdeciding questions such as return to play

Physicians are not always presentPhysicians are not always present Coaches must understand that athletic trainers Coaches must understand that athletic trainers

are the physicians representative who will are the physicians representative who will make decisions based on what is best for the make decisions based on what is best for the athlete, not the teamathlete, not the team

It is best to have this understanding in writing It is best to have this understanding in writing before practice/play beginsbefore practice/play begins



Treatment of injuriesTreatment of injuries Proper evaluation by the athletic trainer, Proper evaluation by the athletic trainer,

documented in full and transmitted to the documented in full and transmitted to the physician in charge is crucialphysician in charge is crucial

Emergency first aid equipment and Emergency first aid equipment and supplies must be adequatesupplies must be adequate

Therapy and rehab equipment must be in Therapy and rehab equipment must be in good working ordergood working order

Proper referral procedures must be Proper referral procedures must be followedfollowed


Risk ReductionRisk Reduction Direct supervision of the athletic training Direct supervision of the athletic training

staff by licensed physician is criticalstaff by licensed physician is critical Physicians should be under contract (whether Physicians should be under contract (whether

paid or volunteer) delineating responsibilitiespaid or volunteer) delineating responsibilities Adequate professional staff to supervise Adequate professional staff to supervise

the clinical instruction of athletic training the clinical instruction of athletic training students while providing patient carestudents while providing patient care Improper actions of students may expose the Improper actions of students may expose the

staff to vicarious liabilitystaff to vicarious liability In summer, environment precautions In summer, environment precautions

must be observedmust be observed



Record keeping (see chapter 10)Record keeping (see chapter 10) Written records are the best way to Written records are the best way to

document that duty has been metdocument that duty has been met Most important information on an injury Most important information on an injury

evaluation includes:evaluation includes: Physician’s ordersPhysician’s orders Treatment planTreatment plan Treatment recordTreatment record Progress reportsProgress reports


Basic Defenses to Basic Defenses to NegligenceNegligence

Contributory negligenceContributory negligence arises when the arises when the plaintiff’s own negligence contributed to the plaintiff’s own negligence contributed to the proximate cause of the injuryproximate cause of the injury

In this situation the plaintiff is barred from In this situation the plaintiff is barred from recovery of damagesrecovery of damages

The plaintiff has the duty to protect himself or The plaintiff has the duty to protect himself or herself from being injuredherself from being injured When Bob, a scholarship football player in season, When Bob, a scholarship football player in season,

suffered a first-degree ankle sprain at the student suffered a first-degree ankle sprain at the student recreation center on Thursday evening playing recreation center on Thursday evening playing basketball, and then sprained the ankle again during a basketball, and then sprained the ankle again during a game due to the negligent action of sideline personnel, game due to the negligent action of sideline personnel, there is a question of contributory negligencethere is a question of contributory negligence

This is not to be confused with failure to mitigate This is not to be confused with failure to mitigate damages, which generally occurs after the fact, while damages, which generally occurs after the fact, while contributory negligence generally occurs before the factcontributory negligence generally occurs before the fact



Comparative negligenceComparative negligence was developed as a was developed as a reaction to the all-or-none principle of contributory reaction to the all-or-none principle of contributory negligencenegligence

Some states with a modified comparative negligence Some states with a modified comparative negligence policy have a threshold for recovery where a plaintiff policy have a threshold for recovery where a plaintiff who is equally or less negligent than the defendant who is equally or less negligent than the defendant may recover damages.may recover damages.

Most states have moved to a policy of pure Most states have moved to a policy of pure comparative negligencecomparative negligence In a pure comparative negligence state, the plaintiff will have In a pure comparative negligence state, the plaintiff will have

to prove all of the elements of negligence, the defendant will to prove all of the elements of negligence, the defendant will try to prove contributory negligence due to the plaintiff‛s try to prove contributory negligence due to the plaintiff‛s own actions and then the jury will establish what percent own actions and then the jury will establish what percent each side is at faulteach side is at fault

Theoretically, defendants are more careful with a Theoretically, defendants are more careful with a comparative negligence system, since the plaintiff‛s comparative negligence system, since the plaintiff‛s participation does not affect the awarding of damages. participation does not affect the awarding of damages.



AA statute of limitations statute of limitations is a state law is a state law that sets the length of time that persons that sets the length of time that persons may sue for damages under either may sue for damages under either negligence or malpractice lawsnegligence or malpractice laws In the states where athletic training is In the states where athletic training is

licensed, the statute of limitations probably licensed, the statute of limitations probably extends to cover athletic trainersextends to cover athletic trainers

Where athletic trainers are covered by Where athletic trainers are covered by malpractice laws, the statute specifies from malpractice laws, the statute specifies from one to three years (depending on the state) to one to three years (depending on the state) to initiate actioninitiate action

Where athletic training is not regulated, there Where athletic training is not regulated, there may be no statute of limitations to cover the may be no statute of limitations to cover the actions of the athletic traineractions of the athletic trainer



It is also important to note that in most It is also important to note that in most states the statute of limitations is states the statute of limitations is tolledtolled for a minor (that is, the time factor is for a minor (that is, the time factor is postponed until that person reaches postponed until that person reaches either 18 years old or an age set in the either 18 years old or an age set in the statute)statute) An athlete injured at age 7 can in theory start An athlete injured at age 7 can in theory start

the statute of limitations at age 18the statute of limitations at age 18 Records, therefore, need to be kept until there is no Records, therefore, need to be kept until there is no

further exposure to the time limitfurther exposure to the time limit In all but seven states, the statute of limitations is In all but seven states, the statute of limitations is

also tolled for fraudulent concealment of information also tolled for fraudulent concealment of information that would have caused the patient to consider his or that would have caused the patient to consider his or her options for suing the professionalher options for suing the professional



It is an open question whether damage that appears It is an open question whether damage that appears later in life (e.g., traumatic arthritis, degenerative later in life (e.g., traumatic arthritis, degenerative diseases that may require joint replacement) can diseases that may require joint replacement) can still fall under the time limits of these lawsstill fall under the time limits of these laws

In an In an assumption of riskassumption of risk defense, the athletic defense, the athletic trainer will assert that the plaintiff knew trainer will assert that the plaintiff knew before commencing an activity that the activity before commencing an activity that the activity was dangerous and chose to participate was dangerous and chose to participate anywayanyway

There are two types of assumption of risk, There are two types of assumption of risk, express assumption of risk and implied express assumption of risk and implied assumption of riskassumption of risk



In express assumption of risk, the In express assumption of risk, the plaintiff agrees not to hold the defendant plaintiff agrees not to hold the defendant liable in advance of possible injuryliable in advance of possible injury Even if an act is perpetrated outside the Even if an act is perpetrated outside the

normal playing time, as long as it is no more normal playing time, as long as it is no more dangerous than that found during play, the dangerous than that found during play, the risk is assumed by the participantsrisk is assumed by the participants

This line of thought has long legal standing, This line of thought has long legal standing, but has been narrowed considerably in but has been narrowed considerably in recent years as courts assess whether the recent years as courts assess whether the agreement is contrary to public policyagreement is contrary to public policy



Implied assumption of risk is shown Implied assumption of risk is shown when a person has witnessed an event when a person has witnessed an event before, including possible hazards to before, including possible hazards to participants or spectators, yet willingly participants or spectators, yet willingly becomes part of the eventbecomes part of the event

For assumption of risk to be valid, the For assumption of risk to be valid, the athlete must “fully appreciate” all of the athlete must “fully appreciate” all of the potential risks and possible outcomes potential risks and possible outcomes from exposure to these risksfrom exposure to these risks

In addition, the athlete must “knowingly, In addition, the athlete must “knowingly, voluntarily, and unequivocally” decide to voluntarily, and unequivocally” decide to participate in the face of these risksparticipate in the face of these risks



For an athlete to fully appreciate the risks, For an athlete to fully appreciate the risks, many courts are stating that the athlete must many courts are stating that the athlete must be informed of be informed of allall possible risks and outcomes possible risks and outcomes

In the case of In the case of Krueger v. Bert Bell NFL Player Krueger v. Bert Bell NFL Player Retirement FundRetirement Fund (234_Cal. Rptr._579 [Cal. (234_Cal. Rptr._579 [Cal. App. 1 Dist. 1987]), the court found that not App. 1 Dist. 1987]), the court found that not informing the plaintiff of all aspects of his informing the plaintiff of all aspects of his medical condition constituted fraud in that Mr. medical condition constituted fraud in that Mr. Krueger was not given the opportunity to make Krueger was not given the opportunity to make a different decision concerning his return to a different decision concerning his return to play after knee surgery. He admitted he would play after knee surgery. He admitted he would have continued to play, but could not decide have continued to play, but could not decide for himself without the withheld informationfor himself without the withheld information



There are several things that should There are several things that should be taken into consideration about be taken into consideration about assumption of riskassumption of risk First, assumption of risk is not a defense First, assumption of risk is not a defense

against defendant's negligenceagainst defendant's negligence Courts have held that even a signed waiver Courts have held that even a signed waiver

cannot excuse negligence since it is not good cannot excuse negligence since it is not good public policy to allow persons to avoid public policy to allow persons to avoid responsibility of a duty to protect participantsresponsibility of a duty to protect participants



Second, minors cannot accept Second, minors cannot accept responsibility for protecting themselves responsibility for protecting themselves even though they were completely even though they were completely informed of the risks and parents cannot informed of the risks and parents cannot waive their child's rightswaive their child's rights

Even adults capable of understanding Even adults capable of understanding the risks inherent in participation cannot the risks inherent in participation cannot waive hidden risks that the defendants waive hidden risks that the defendants were or should have been aware ofwere or should have been aware of

People cannot assume risks which they People cannot assume risks which they are not aware ofare not aware of



Act of GodAct of God defense is based on the concept defense is based on the concept that all risks were foreseeable and covered, yet that all risks were foreseeable and covered, yet the plaintiff was injured by circumstances the plaintiff was injured by circumstances completely beyond the control of the defendantcompletely beyond the control of the defendant This defense cannot be used to shield a defendant This defense cannot be used to shield a defendant

from a negligence claimfrom a negligence claim As with assumption of risk, this defense is As with assumption of risk, this defense is

appropriate only when there has been no appropriate only when there has been no negligencenegligence

The most important point is foreseeabilityThe most important point is foreseeability Any accident that cannot be foreseen the Any accident that cannot be foreseen the

plaintiff cannot be protected fromplaintiff cannot be protected from



The biggest problem with this defense is that The biggest problem with this defense is that some people believe occurrences in nature some people believe occurrences in nature such as storms, earth quakes, lightening, or such as storms, earth quakes, lightening, or high heat and humidity fall into this high heat and humidity fall into this classificationclassification Lightening is clearly foreseeable during thunder Lightening is clearly foreseeable during thunder

stormsstorms Heat and high humidity clearly make heat stroke or Heat and high humidity clearly make heat stroke or

heat exhaustion foreseeable consequencesheat exhaustion foreseeable consequences To ignore the condition and fail to take proper To ignore the condition and fail to take proper

precautions is negligent and subject to liability for precautions is negligent and subject to liability for any injuries that resultany injuries that result



Good Samaritan lawsGood Samaritan laws state that those state that those who come to the aid of an injured person who come to the aid of an injured person and act within their standard of care are and act within their standard of care are immune from actions for damagesimmune from actions for damages These laws do not cover negligent conductThese laws do not cover negligent conduct

There is an assumption that no There is an assumption that no compensation to the athletic trainer was compensation to the athletic trainer was providedprovided

The most common use of these laws The most common use of these laws occurs when covering state games and occurs when covering state games and charitable eventscharitable events



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.



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 sovereign immunity where allowed by the governing unit

This has allowed public employee medical professionals to evade claims of negligence in some locations



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’



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)



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



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



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



Information in medical and student records Information in medical and student records is protected by Federal and state laws.is protected by Federal and state laws. It may be advantageous to an athlete for this It may be advantageous to an athlete for this

information to be viewed by a 3information to be viewed by a 3rdrd party party Adjudicating insurance claimsAdjudicating insurance claims Evaluation potential for professional sports Evaluation potential for professional sports

employmentemployment Each individual case should be accompanied by Each individual case should be accompanied by

a written release signed by the athlete allowing a written release signed by the athlete allowing a specific 3a specific 3rdrd party access to the records party access to the records



Each time the records are released, a new Each time the records are released, a new waiver should be obtainedwaiver should be obtained

Blanket release forms are potentially Blanket release forms are potentially injurious to the athlete and should be injurious to the athlete and should be avoidedavoided

The athlete should be made aware in writing The athlete should be made aware in writing as part of the release that once the records as part of the release that once the records are out of the medical staff’s possession that are out of the medical staff’s possession that the athletic trainers and physicians have no the athletic trainers and physicians have no control over who accesses this informationcontrol over who accesses this information

The athlete should also be aware that when The athlete should also be aware that when a waiver is signed, the entire medical record a waiver is signed, the entire medical record is releasedis released



Another type of waiver covers when an athlete Another type of waiver covers when an athlete has been told that either a preexisting or a has been told that either a preexisting or a new condition has rendered participation new condition has rendered participation dangerousdangerous This waiver must inform the athlete of ALL This waiver must inform the athlete of ALL

possible consequences (including death, persistent possible consequences (including death, persistent vegetative coma, and all other lesser maladies)vegetative coma, and all other lesser maladies)

It must also state that the physicians have told the It must also state that the physicians have told the athlete not to participate but the athlete is going athlete not to participate but the athlete is going against these orders at his or her own riskagainst these orders at his or her own risk

Parents and spouses need to sign these waivers, Parents and spouses need to sign these waivers, tootoo



Some authorities have suggested that Some authorities have suggested that rather than executing a waiver, the rather than executing a waiver, the medical staff should tell the athlete to medical staff should tell the athlete to sue for the right to participatesue for the right to participate The decision to allow participation after The decision to allow participation after

the waiver is signed is by the court, not the waiver is signed is by the court, not the physiciansthe physicians

The sports medicine staff and coaches The sports medicine staff and coaches cannot then be held as coercive, risking a cannot then be held as coercive, risking a judge throwing out the waiverjudge throwing out the waiver


CommunicationCommunication

Communication between the sports Communication between the sports medicine team and the athlete about medicine team and the athlete about the comprehensive nature of the the comprehensive nature of the athlete’s health is vital to an athlete’s health is vital to an informed decisioninformed decision

Sports organizations need to have Sports organizations need to have policies in place acknowledging the policies in place acknowledging the independence of their medical staff independence of their medical staff from team managementfrom team management


CommunicationCommunication Accurate, complete records of all Accurate, complete records of all

discussions and information provided to discussions and information provided to the athlete must be part of the permanent the athlete must be part of the permanent medical recordmedical record

There has been questions in the past There has been questions in the past concerning the objectivity of medical staff concerning the objectivity of medical staff employed by an organization delivering employed by an organization delivering health care services to employees of the health care services to employees of the organization To whom does the physician organization To whom does the physician owe duty? The employee (athlete) or the owe duty? The employee (athlete) or the organization that employees him/her?organization that employees him/her?


CommunicationCommunication Graham found the best documentation Graham found the best documentation

of this independence is a written of this independence is a written contract defining rolescontract defining roles Unfortunately, few athletic trainers or team Unfortunately, few athletic trainers or team

physicians have written contracts or physicians have written contracts or written job descriptionswritten job descriptions

Graham also pointed out the need for Graham also pointed out the need for continuing educationcontinuing education

Other studies have found a disconnect Other studies have found a disconnect between what athletic trainers believe between what athletic trainers believe is important in education programs and is important in education programs and reasons athletic trainers are being suedreasons athletic trainers are being sued


CommunicationCommunication A study by Zylks found that half of the A study by Zylks found that half of the

competencies in the prevention domain were competencies in the prevention domain were valued by practicing athletic trainers while valued by practicing athletic trainers while Leverenz found that in the 13 cases in Leverenz found that in the 13 cases in appellate law between 1960 and 1989, five appellate law between 1960 and 1989, five dealt with prevention issuesdealt with prevention issues

According to Gallup, when a suit is filed, According to Gallup, when a suit is filed, 60% of the time the suit is dropped, 30% 60% of the time the suit is dropped, 30% are settled out of court, 10% of the time are settled out of court, 10% of the time the suit actually goes to trial, and 2% of the suit actually goes to trial, and 2% of the time the plaintiffs prevailthe time the plaintiffs prevail

© 2006 McGraw-Hill Higher Education. All rights reserved. Athletic Training Management Chapter 8...

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Transcript of © 2006 McGraw-Hill Higher Education. All rights reserved. Athletic Training Management Chapter 8...