Introducing the Risk Management Pyramid.12
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Transcript of Introducing the Risk Management Pyramid.12
by JoAnn M. Eickhoff-Shemek, Ph.D., FACSM, David L. Herbert, J.D., and Daniel P. Connaughton, Ed.D.
Introducing the Risk Management Pyramid
Health/fitness professionals are
familiar with various pyramid
diagrams that have been devel-
oped to depict and summarize certain
actions or behaviors that individuals can
take to improve their health. For example,
the Food Guide Pyramid, Activity Pyra-
mid, and Life Balance Pyramid (1) suc-
cinctly provide recommendations with
regard to nutrition/diet, regular physical
activity, and behavioral components of a
balanced lifestyle, respectively. A well-
known and established pyramidVthe
Food Guide PyramidVhas been revised
and is now referred to as the MyPyramid
Food Guidance System (2). It was de-
signed to help educate Americans about
making healthy food choices and being
physically active in their everyday activi-
ties. A new pyramid, the Risk Manage-
ment Pyramid designed specifically for
health/fitness professionals, is being in-
troduced in this column to help educate
health/fitness professionals about making
wise choices with regard to the safety of
their participants while also protecting
themselves from potential legal liability.
THE RISKMANAGEMENT PYRAMID
Using the Risk Management Pyramid
will not only help minimize the occur-
rence of untoward events and related
medical emergencies from ever occur-
ring in health/fitness facilities but also
help protect health/fitness professionals
and/or facilities from costly negligence
claims, lawsuits, and liability after a med-
ical emergency does occur. In this regard,
risk management may be defined as Ba
proactive administrative process that will
help minimize liability losses (e.g., claims
or lawsuits due to negligence) for health/
fitness professionals and the organiza-
tions they represent^ (3Ep. 9^).
Because negligence is a common type
of legal liability exposure that health/
fitness professionals regularly face, the
Risk Management Pyramid focuses on
preventing or minimizing negligence. A
defendant (a health/fitness professional
and/or facility) can be held liable for neg-
ligence if the plaintiff (the injured party)
can prove that the defendant breached
a duty (e.g., failed to conform to a gen-
erally accepted standard of care) and
that the breach of that duty proximately
caused harm.
The Risk Management Pyramid
(Figure) provides seven lines (or layers)
of defenses that reflect risk manage-
ment strategies that health/fitness pro-
fessionals can develop and implement
to help prevent and/or minimize medical
and other emergencies and subsequent
negligence claims and lawsuits. Each
line of defense is briefly described in
the Risk Management Pyramid. The
seven lines of defenses collectively rep-
resent the elements of a Bcomprehensive^
risk management plan that all health/
fitness facilities should
have in place to protect
themselves and their
programs.
The first three lines
of defense are consid-
ered the foundation of
a comprehensive risk
management plan and
are important to iden-
tify and implement be-
fore proceeding with
the specific actions de-
scribed in the remain-
ing lines of defense.
For example, knowing the laws (statutory,
administrative, and case law) that are
applicable to the health/fitness field as
well as published standards of practice
(e.g., standards, guidelines, position pa-
pers published by professional organiza-
tions, and safety specifications published
by exercise equipment manufacturers) is
essential for health/fitness professionals.
Without this knowledge, it is unlikely
that health/fitness professionals will fully
understand and appreciate their many
legal responsibilities.
The fourth line of defense focuses on
being proactiveVthinking through the
many foreseeable risks that can occur
in fitness programs and then taking ac-
tion that involves developing risk man-
agement strategies in the form of written
policies and procedures that address
these risks. Once these strategies are de-
veloped, staff members must be well
trained on how to properly comply with
these policies and procedures.
When a medical emergency occurs,
it is critical that all health/fitness fa-
cilities not only have a written medi-
cal emergency action plan in place to
The Legal Aspects
VOL. 12/ NO. 5 ACSM’s HEALTH & FITNESS JOURNALA 37
Copyright @ 2008 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
address such occurrences but that staff
members carryout the emergency action
plan properly, as described in the fifth
line of defense. For example, not ad-
hering to published standards of prac-
tice that now require health/fitness fa-
cilities to have an automated external
defibrillator in place in their programs
(4) not only can result in claims based
upon ordinary negligence but also may
result in claims of gross negligence
as well (5).
For example, in a recent Illinois case
dealing with a claim of gross negligence,
Fowler v. Bally Total Fitness Corp., the
court stated Bthere is nodenying the fact that
Bally (the defendant) knew with 100% cer-
tainty that dozens of itsmembers would ex-
perience heart attacks and die each year, and
instead of pursuing a relatively cheap and
easy solution to the problem through the de-
ployment of automated external defibril-
lators at its health facilities, Bally chose to
consciously disregard this known risk.
That strikes this Court as the very defini-
tion of gross negligence^ (5Epp. 22Y24^).
It is important to recognize that in most
states, waivers (depicted in the sixth line
of defense) will not protect defendants
from gross negligence and that liability in-
surance policies (described in the seventh
line of defense) generally do not pay for
punitive damages that are often awarded
when a defendant(s) has been found liable
for gross negligence.
CONCLUSIONSBecause of the inherent relationship that is
formedbetweenhealth/fitnessprofessionals
and their participants, the law requires that
health/fitness professionals provide reason-
ably safe facilities and programs for their
participants. This legal requirement (or
duty) is carried out through adherence to
the proper standard of care. The programs
can be protected from legal claims and re-
sultant litigation through the development
and implementation of a comprehensive
risk management program that is reflected
in all seven defenses in the Risk Manage-
ment Pyramid. In the next legal column,Figure. The risk management pyramid.
VOL. 12/ NO. 538 ACSM’s HEALTH & FITNESS JOURNALA | www.acsm-healthfitness.org
The Legal Aspects
Copyright @ 2008 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
we will address the specific steps in the
risk management process.
References1. Health pyramids table tent. Park Nicollet.
Available at http://www.parknicollet.com/healthinnovations/shopping/ProductDetail.cfm?productid=2711-36. n.d. AccessedMarch 29, 2008.
2. Development of MyPyramid. MyPyramid.gov.United States Department of AgricultureVFor Professionals. Available at http://www.mypyramid.gov/professionals/index.html. n.d.Accessed April 8, 2008.
3. Eickhoff-Shemek, J.M., D.L. Herbert, and D.P.Connaughton. Risk Management for Health/Fitness Professionals: Legal Issues andStrategies. Baltimore: Lippincott Williams &Wilkins, 2009.
4. ACSM’s Health/Fitness Facility Standards andGuidelines. 3rd ed. Tharrett S.J., K.J. McInnis,and J.A. Peterson (Editors). Champaign:Human Kinetics, 2007.
5. Herbert, D.L. Illinois AED case to proceedon gross negligence claim. The ExerciseStandards and Malpractice Reporter 22(2):17,20Y24, 2008.
JoAnn M. Eickhoff-
Shemek, Ph.D., FACSM,
FAWHP, is a professor
and the coordinator of
the Exercise Science
program at the Univer-
sity of South Florida in
Tampa. Dr. Eickhoff-Shemek’s research
focuses on legal liability and risk manage-
ment issues in the health/fitness field. She
is the lead author (coauthors are David
Herbert, J.D., and Daniel Connaughton,
Ed.D.) of a new text entitledRiskManage-
ment for Health/Fitness Professionals:
Legal Issues and Strategies that will be
released by the publisher, Lippincott
Williams & Wilkins, in October 2008. Dr.
Eickhoff-Shemek is the legal columnist
and an associate editor ofACSM’s Health
& Fitness JournalA and is ACSM Health/
Fitness DirectorA certified, ACSM Exercise
Test TechnologistSM certified, and a
Fellow of ACSM.
David L. Herbert, J.D.,
is the senior member
of David L. Herbert
& Associates, LLC,
Attorneys and Coun-
selors at Law, Canton,
OH. He is coeditor of
The Exercise Standards and Malprac-
tice Reporter and The Sports Medicine
Standards and Malpractice Reporter. He
is an author or coauthor of 20 books,
numerous book chapters, and more than
500 articles on the subject of negligence
and malpractice, risk management,
standards and guidelines, and health and
fitness facility law and trial practice. He is
a frequent presenter to health, fitness, and
sports medicine groups including ACSM.
He is a trustee of the National Board of
Fitness Examiners, a member of the
Defense Research Institute, and a mem-
ber of the American, Ohio, and Stark
County (Canton, OH) Bar Associations.
Daniel Connaughton,
Ed.D., is an associate
professor in the De-
partment of Recrea-
t ion, Tourism, and
Sport Management
at the University of
Florida where he teaches and conducts
research in the area of sport law and
risk management. He received a B.S. in
Exercise and Sport Sciences and an M.S.
in Recreational Studies from the Uni-
versity of Florida, an M.S. in Physical
Education (Administration) from Bridge-
water State College, and his Doctorate in
Sport Administration from the Florida
State University. Dr. Connaughton is a
Fellow with the Research Consortium of
the American Alliance for Health, Physi-
cal Education, Recreation and Dance
and has won numerous teaching awards.
Finally, he is ACSM Health/Fitness
InstructorA certified and the holder of nu-
merous other professional certifications.
Dr. Connaughton has served as an expert
witness and legal consultant on many
sport- and fitness-related lawsuits.
VOL. 12/ NO. 5 ACSM’s HEALTH & FITNESS JOURNALA 39
Copyright @ 2008 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.