ATHLETIC TRAINERS James A Comodeca Dinsmore & Shohl LLP 255 E. Fifth Street 1900 Chemed Cincinnati...

ATHLETIC TRAINERSATHLETIC TRAINERS

James A ComodecaJames A Comodeca

Dinsmore & Shohl LLPDinsmore & Shohl LLP

255 E. Fifth Street255 E. Fifth Street

1900 Chemed1900 Chemed

Cincinnati Ohio 45202Cincinnati Ohio 45202

[email protected]@dinslaw.com

©2007 James A Comodeca©2007 James A Comodeca

A PRIMER ON THE LAW A PRIMER ON THE LAW

Anatomy of a lawsuitAnatomy of a lawsuit

Anatomy Of A LawsuitAnatomy Of A Lawsuit

• ComplaintComplaint

• AnswerAnswer

• Written DiscoveryWritten Discovery

Anatomy Of A LawsuitAnatomy Of A Lawsuit

• DepositionsDepositions

• MotionsMotions

• TrialTrial

The Mystery Of Alleged The Mystery Of Alleged NegligenceNegligence

What is Negligence?What is Negligence?


• The Failure to exercise that degree The Failure to exercise that degree or amount of care which a person of or amount of care which a person of ordinary prudence would exercise ordinary prudence would exercise under the same or similar conditionsunder the same or similar conditions

““Common Sense” Common Sense”


• That is… you should learn to expect That is… you should learn to expect from others the treatment which from others the treatment which they experience from youthey experience from you


• 5 Elements of Negligence5 Elements of Negligence

– DutyDuty– Standard of CareStandard of Care– BreachBreach– CausationCausation– Injury/DamageInjury/Damage


• DutyDuty

– Issue of Law (judge decides)Issue of Law (judge decides)

– General rule: Duty owed to any General rule: Duty owed to any foreseeable personforeseeable person


• Standard of CareStandard of Care

– Standard of Care v. Standard of PracticeStandard of Care v. Standard of Practice

– Issue of Fact For JuryIssue of Fact For Jury

– Minimum level of conduct required…Minimum level of conduct required…


• Places to find Standards of CarePlaces to find Standards of Care

•National or State Standards from National or State Standards from Professional OrganizationProfessional Organization

•Other TrainersOther Trainers

•LiteratureLiterature


• BreachBreach

– Proof of what happened (event leading Proof of what happened (event leading to injury)to injury)

– Evidence that Defendant acted Evidence that Defendant acted unreasonably unreasonably


• CausationCausation

– But/For TestBut/For Test

– Fire Escape exampleFire Escape example


• Damage/InjuryDamage/Injury

– Personal InjuryPersonal Injury

– Property Damage Property Damage


• Plaintiff Must Prove All Elements Or Plaintiff Must Prove All Elements Or LoseLose

• Other Defenses AvailableOther Defenses Available

•Assumption of the RiskAssumption of the Risk– KnowledgeKnowledge– voluntarinessvoluntariness


Now That You Know The Now That You Know The Elements Of Negligence ……. Elements Of Negligence …….

How Is It Proven? How Is It Proven?


• EvidenceEvidence

• 2 Types of Evidence2 Types of Evidence

– DirectDirect

– CircumstantialCircumstantial


• 3 Forms of Evidence3 Forms of Evidence

– WrittenWritten

– OralOral

– Physical/ObjectsPhysical/Objects


• Am I A Target?Am I A Target?

• Isn’t What I Do Obvious?Isn’t What I Do Obvious?

• Nothing Can Go Wrong?Nothing Can Go Wrong?

Nothing Can Go Wrong?Nothing Can Go Wrong?

Nothing Can Go Wrong?Nothing Can Go Wrong? photo fromphoto from www.marineporttraining.com/accidentswww.marineporttraining.com/accidents


• Actual warning on Actual warning on this fishing lure:this fishing lure:

• Harmful if Harmful if swallowedswallowed


What are these two thinking?

Provided at hearing by an OSHA Area Director


• Understand Your RoleUnderstand Your Role

• Document WellDocument Well

• Stay Within Your Expertise Stay Within Your Expertise

Key DefinitionsKey Definitions

• Athletic trainerAthletic trainer

• SupervisionSupervision

• Supervising physicianSupervising physician

• Athletic injuryAthletic injury

• AthleteAthlete

What is an Athletic Trainer?What is an Athletic Trainer?

• The Kentucky Revised Code The Kentucky Revised Code § § 311.900(3)311.900(3) defines “athletic trainer” defines “athletic trainer” as:as:““A person with specific qualifications, as set forth A person with specific qualifications, as set forth in KRS 311.900 to 311.928 who is certified to in KRS 311.900 to 311.928 who is certified to practice athletic training and who, upon the practice athletic training and who, upon the supervisionsupervision of a physician licensed under KRS of a physician licensed under KRS Chapter 311 carries out the practice of Chapter 311 carries out the practice of preventing, recognizing, evaluating, managing, preventing, recognizing, evaluating, managing, disposing, treating, reconditioning, or disposing, treating, reconditioning, or rehabilitating athletic injuries.”rehabilitating athletic injuries.”

What is supervision?What is supervision?

• ““Supervision” means advising, Supervision” means advising, consenting to, and directing activities consenting to, and directing activities of an athletic trainer through written of an athletic trainer through written or oral orders by a physician licensed or oral orders by a physician licensed to practice under KRS 311.to practice under KRS 311.

• Kentucky Revised Code Kentucky Revised Code § 311.900(7)§ 311.900(7)

Who qualifies as a supervising Who qualifies as a supervising physician?physician?

• A “supervising physician” means a A “supervising physician” means a physician licensed by the Kentucky physician licensed by the Kentucky Board of Medical Licensure.Board of Medical Licensure.

• Kentucky Revised Code Kentucky Revised Code § 311.900(6)§ 311.900(6)

What is an athletic injury?What is an athletic injury?

• ““Athletic injury” means:Athletic injury” means:

(a) An injury or condition, excluding medical (a) An injury or condition, excluding medical conditions such as internal infections, internal conditions such as internal infections, internal injuries, fractures, and spinal cord injuries except injuries, fractures, and spinal cord injuries except in an acute situation sustained by an in an acute situation sustained by an athleteathlete that that affects the individual’s participation or affects the individual’s participation or performance in sports, games, recreation;performance in sports, games, recreation;

OROR

Athletic injury Cont’dAthletic injury Cont’d

(b) An injury or condition that is within the scope of (b) An injury or condition that is within the scope of practice of an athletic trainer identified by a practice of an athletic trainer identified by a physician licensed under KRS 311, a physical physician licensed under KRS 311, a physical therapist licensed under KRS 327, an occupational therapist licensed under KRS 327, an occupational therapist licensed under KRS Chapter 319A, or a therapist licensed under KRS Chapter 319A, or a chiropractor licensed under KRS Chapter 312 that is chiropractor licensed under KRS Chapter 312 that is likely to benefit from athletic training services that likely to benefit from athletic training services that have been approved by a physician supervising the have been approved by a physician supervising the athletic trainer.athletic trainer.

Kentucky Revised Code Kentucky Revised Code § 311.900(2)(a)-(b).§ 311.900(2)(a)-(b).

What is an athlete?What is an athlete?

• Kentucky Revised Code Kentucky Revised Code § 311.900(1) § 311.900(1) defines “athlete” as:defines “athlete” as:““An individual, referee, coach, or athletic staff An individual, referee, coach, or athletic staff member who participates in sports, games, or member who participates in sports, games, or recreational activities requiring physical strength, recreational activities requiring physical strength, agility, flexibility, range of motion, speed, or agility, flexibility, range of motion, speed, or stamina, and who is associated with a sport, stamina, and who is associated with a sport, game, or recreational activity that is conducted in game, or recreational activity that is conducted in association with an educational institution or association with an educational institution or professional, amateur, or recreational sports club professional, amateur, or recreational sports club or organization.”or organization.”

Functions of an Athletic Functions of an Athletic TrainerTrainer

What are they?What are they?

• To prevent, recognize, evaluate, manage, To prevent, recognize, evaluate, manage, dispose, treatdispose, treat, recondition, or rehabilitate , recondition, or rehabilitate athletic injuries.athletic injuries.

• A certified athletic trainer shall practice A certified athletic trainer shall practice only in those areas in which he or she is only in those areas in which he or she is competent by reason of his or her training competent by reason of his or her training or experience. or experience.

• KRS § 311.900(3)KRS § 311.900(3)

What aren’t they?What aren’t they?

Thou shalt not..Thou shalt not..

KRS 311.903(1)-(11)KRS 311.903(1)-(11)

Thou Shall Not:Thou Shall Not:

• Use spinal or pelvic manipulations or Use spinal or pelvic manipulations or spinal or pelvic chiropractic spinal or pelvic chiropractic adjustmentsadjustments

• Perform invasive proceduresPerform invasive procedures


• Prescribe medication, but my Prescribe medication, but my dispense over-the-counter or dispense over-the-counter or prescription medications only to an prescription medications only to an adult athlete and with the adult athlete and with the supervision of a physician licensed supervision of a physician licensed under KRS Chapter 311under KRS Chapter 311

– Must Keep written documentation per Ky lawMust Keep written documentation per Ky law


• Prescribe medications, including Prescribe medications, including controlled substances.controlled substances.

• Dispense over-the-counter or Dispense over-the-counter or prescription medication to a minor.prescription medication to a minor.


• Independently bill any patient or other Independently bill any patient or other payer for services rendered by the athletic payer for services rendered by the athletic trainer…trainer…

BUT, an athletic trainer BUT, an athletic trainer shallshall conform to the conform to the standard of care required of an ordinary standard of care required of an ordinary competent and careful certified athletic competent and careful certified athletic trainer in exercising reasonable care for trainer in exercising reasonable care for the health and safety of the athlete.the health and safety of the athlete.

So What Happens If I Violate A So What Happens If I Violate A Kentucky Statute? Kentucky Statute?

Possible PenaltiesPossible Penalties

• KRS KRS § 311.909 lists the various § 311.909 lists the various possibilities. possibilities. The boardThe board::

– may revoke, suspend, deny, decline to renew, may revoke, suspend, deny, decline to renew, limit, or restrict the certification of an athletic limit, or restrict the certification of an athletic trainer; ortrainer; or

– may impose fines of not less than one hundred may impose fines of not less than one hundred dollars and not more than five thousand dollars per dollars and not more than five thousand dollars per violation, including the costs of any proceeding;violation, including the costs of any proceeding;

– may reprimand; may reprimand; oror

Penalties, cont’dPenalties, cont’d

• Place an athletic trainer on Place an athletic trainer on probationprobation for no more than five (5) years upon for no more than five (5) years upon proof that an athletic trainer:proof that an athletic trainer:

– Knowingly falsified an application for certification Knowingly falsified an application for certification or renewal;or renewal;

– Practiced or aided or abetted in the practice of Practiced or aided or abetted in the practice of fraud, forgery, deception, collusion, or conspiracy fraud, forgery, deception, collusion, or conspiracy relating to an examination for certification;relating to an examination for certification;

Probation, cont’dProbation, cont’d

– Has been convicted by any court of a Has been convicted by any court of a misdemeanor offense involving moral turpitude or misdemeanor offense involving moral turpitude or convicted of an act that is or would be a felony convicted of an act that is or would be a felony under the laws of Kentucky or the United States;under the laws of Kentucky or the United States;

– Has become addicted to or is in abuser of alcohol, Has become addicted to or is in abuser of alcohol, drugs, or any illegal substance;drugs, or any illegal substance;

– Developed a physical or mental disability or other Developed a physical or mental disability or other condition that presents a danger in continuing to condition that presents a danger in continuing to provide athletic training services to patients, the provide athletic training services to patients, the public or other health-care personnel;public or other health-care personnel;


– Performed any act or service as an athletic trainer Performed any act or service as an athletic trainer without proper supervision by a licensed without proper supervision by a licensed physician;physician;

– Exceeded the scope of medical services or Exceeded the scope of medical services or procedures described by the supervising physician procedures described by the supervising physician in the application required under KRS 311.903;in the application required under KRS 311.903;

– Knowingly made, caused to be made, or aided or Knowingly made, caused to be made, or aided or abetted in the making of a false statement in any abetted in the making of a false statement in any document executed in connection with the document executed in connection with the practice of athletic training;practice of athletic training;


– Aided, assisted, or abetted another in the Aided, assisted, or abetted another in the unlawful practice of medicine, osteopathy, unlawful practice of medicine, osteopathy, chiropractics, or any healing art, including the chiropractics, or any healing art, including the unlawful practice of athletic training;unlawful practice of athletic training;

– Willfully violated a confidential communication; Willfully violated a confidential communication;

– Performed the services of an athletic trainer in Performed the services of an athletic trainer in an unprofessional, incompetent, or grossly or an unprofessional, incompetent, or grossly or chronically negligent manner;chronically negligent manner;

Just to name a fewJust to name a few…..…..

Critical LessonsCritical Lessons

• Know your roleKnow your role

• Expect the unexpectedExpect the unexpected

• Document…Document…DocumentDocument…Document…Document

THANK YOUTHANK YOU

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ATHLETIC TRAINERS James A Comodeca Dinsmore & Shohl LLP 255 E. Fifth Street 1900 Chemed Cincinnati...

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Transcript of ATHLETIC TRAINERS James A Comodeca Dinsmore & Shohl LLP 255 E. Fifth Street 1900 Chemed Cincinnati...