Legal Liability and Insurance

Sports Med IMrs. Dobbins

Chapter Objectives Define the legal concepts of liability, negligence,

torts, assumption of risk. Identify measures that can be taken by both the

coach and athletic trainer to minimize chances of litigation.

Describe product liability. Identify and describe the types insurance.

Liability

The most frequent legal problem an athletic trainer will face is liability

Liability is responsibility for one’s actions

Specifically when those actions cause harm or injury

Liability

Liability can be proven through1. Negligent behavior2. Failure to inform a patient of all

pertinent information3. Breach of contract, or 4. Assault and battery

Athletic training profession is most often liable for negligence

Negligence Two forms of Negligence may occur

1. Omission2. Commission

Omission Failure to act in a given situation

ATC (because of their certifications) have a responsibility to act if a medical issue arises

Commission Acts in an improper manner

Because of advanced training, ATC/ LATs are expected to treat a patient appropriately in any medical situation or summon advanced personnel if needed

To prove Negligence in CourtPatient must demonstrate that 4 criteria's were met:1. Must be a duty to act for the defendant

The standard is set by states and the NATA has created its own Standard of Care:

1. Direction- All care performed under the direction of a physician

2. Prevention3. Immediate Care4. Clinical Evaluation and Diagnosis5. Treatment, Rehabilitation, and Reconditioning6. Program Discontinuation- once the patient has

received optimal benefit7. Organization and Administration

To prove Negligence in Court

2. A breach of dutyproven when the AT who is improperly completing their job, violates the standard of care.

Example: if an AT allows practice to occur in unsafe environmental conditions (e.g., heat/ cold, poor field conditions)

To prove Negligence in Court

3. Causation- The determination that the actions of a person led to damages and to what extent the person is responsible for the damage caused

The result must be foreseeable to the average person

If the action was considered unforeseen by a prudent and reasonable AT- then this criterion has not been met.

To prove Negligence in Court

4.DamageIf the athlete does not suffer residual

damage then his or her injury does not qualify for negligent behavior even if the AT acted in an improper manner.

*A lawsuit arguing negligence can be successful ONLY if ALL FOUR criteria have been met.

Vicarious Liability Another concern is Vicarious Liability

Head AT can be held responsible for the actions of AT who are under their supervision

May also occur in AT education programs- when certified AT are held liable for the actions of their students,

It is important in either situations to provide the appropriate training to all members of the AT program and also provide suitable supervision.

Good Samaritan Law Provides limited protection against

legal liability to any individual who voluntarily chooses to provide 1st Aid

The law does not condone negligent behavior but protects the individual if injuries occur from appropriate care. Benefit for AT is during voluntary

coverage where the AT is not involved with their traditional employment (depends on the state)

Steps to Avoid Litigation

1. Develop a list of job expectations2. Maintain CPR/ 1st Aid Certifications3. Develop an Emergency Action Plan4. Obtain Consent form/waiver5. Conduct pre-participation physicals6. Document all injuries7. Consistently update education8. Periodically inspect facilities and

equipment9. Maintain effective lines of communication

Reducing the Risks of Litigation for Negligence For AT & Coaches

Warn the athlete of the potential dangers inherent in the sport.

Supervise constantly and attentively.

Properly prepare and condition the athlete.

Properly instruct the athlete in the skills of the sport.

Ensure that proper and safe equipment and facilities are used by the athletes at all times

Work to establish good personal relationships with the athletes. Parents, and coworkers

Establish good policies and procedures of operation of an athletic training facility

Develop and carefully follow an emergency plan

Familiarize yourself with the health status and medical history of the athletes

Keep good records that document injuries and the rehabilitation

Document efforts to create a safe playing environment

Have a detailed job description in writing

Obtain written consent for providing health care to minors

Maintain confidentiality of medical records.

Reducing the Risks of Litigation for Negligence For AT & Coaches

Do not dispense prescription drugs, and if allowed by law exercise extreme caution in administering nonprescription medications.

Use only those therapeutic methods that one is qualified to use that the law states may be used.

Do not permit or use faulty or hazardous general and protective equipment.

Develop an understanding that an injured athlete will not be able to return until cleared by the team physician or the athletic trainer

Follow the express orders of the team physician at all times.

Purchase liability insurance to protect against litigation and be aware of the limitations.

Know the limitations of your expertise and the applicable state regulations and restrictions

Use common sense in making decisions about the athlete’s health and safety.

Emergency Action Plan (EAP)

A key component to protecting an AT staff from liability is developing an EAP:

A written document that details the standard of care required in an emergency at a specific institution.

Product Liability Manufacturers have a responsibility to design and

produce equipment that will not harm or cause injury as long as it is used for as intended. Manufacturers written guarantee that the product is safe. Warning labels placed on the helmets informing players of

the inherent dangers using this piece of equipment. National Operating Committee on Standards for

Athletic Equipment (NOCSAE) label must be on helmets. NOCSAE establishes minimum standards for equipment

must meet to ensure its safety.

Insurance

Insurance: the act of insuring property, life, one’s person and so on against the loss or harm arising in specified condition Insure- promise of reimbursement in the

case of loss;

Liability Insurance Liability Insurance- protects staff from the

punitive damages that may incur as the result of a lawsuit Preserves personal assets from inclusion in the

legal proceedings Personal Liability Insurance

Covers the claims of negligence on the part of individual

Catastrophic Insurance Covers medical and rehabilitative services for

athletes who are permanently disable.

Insurance to Protect the Athlete

With managed care and increase in lawsuits insurance cost have elevated dramatically.

The major types of health insurance that coaches must be aware of are General health insurance Catastrophic insurance Accident insurance Liability insurance (covering errors and

omissions)

Insurance Several different types of medical

insurance available 2 basic forms

1. Medical insurance- covers a predetermined % of an individual’s medical expenses that result from illnesses and injury.

2. Health insurance- covers the same medical costs, as well as preventive care such as wellness programs.

General Health Insurance Every athlete should have general health insurance:

Covering Illness Hospitalization Emergency care

Institutions who provide the primary insurance coverage pay a very high premium

Most institutions provide secondary coverage once the athlete’s personal coverage has paid.

The coach or athletic trainer need to require athletes to complete a insurance information card and put information on file

Types of Health Care Coverage

Many types:1. HMO- Health Maintenance Organization2. PPO- Preferred Provider Organization3. POS- Point-Of-Service4. EPO- Exclusive Provider Organizations

HMO Health Maintenance Organization

An athlete cannot receive medical treatment insurance coverage from a specialist with prior consent of their primary care doctor; emergencies are the only exception.

Advantage: covers 100% of the costs for all services as long as those services are provided by a pre assigned facility

Disadvantage: when the individual is not able to receive treatment at the specified facility Especially important for college athletes who attend school

away from home HMO- assigns each member to a doctor usually a primary

care MD (who is the gatekeeper) Athletic trainers and coaches need to understand the

limitations and restrictions of the HMO coverage at their institution.

PPO Preferred Provider Organizations Advantage: Larger network (list of approved

providers) and if service is rendered at the facility then insurance pays 80%-100% of the cost.

Direct access to medical specialist (no gatekeeper) If specialist is in-network then you can schedule an

appointment directly (no loss of benefits) Disadvantage: Provide discount health care but

also limited where a person can receive treatment for an illness.

Coaches and athletic trainers must be apprised where the athlete should be sent based on the PPO.

POS Point Of Service

Combination of HMO and PPO Based on a HMO structure but allows

athletes to go outside the HMO to obtain services (like the PPO)

Flexibility is allowed with certain conditions This plan offers more flexibility than the

traditional HMO but also maintains the network of providers and easy access that the HMO offers.

EPO Exclusive Provider Organizations

Similar to the PPO- provides a broad network of MDs who are directly affiliated with the insurance co.

You can see any of the in-network providers and cost is covered 100%

However members must obtain services from an approved MD

Unlike the PPO the providing MD may not be allowed to treat a patient who is not a member of the organization (this limits providers and makes it difficult for an MD to be affiliated with an athletic department)

Insurance Coverage

Primary Insurance Coverage:All expenses related to an injury that an insurance co provides with in a policy

Secondary Insurance Coverage:provides for the remaining expenses once the primary coverage plan has completed it’s payments

Capitation Capitation: reimbursement process in

which members make a standard payment each month regardless of how much medical treatment is rendered.

Insurance Reimbursement

Third Party Reimbursement The primary mechanism of payment of

medical services in the United States. Health care professionals are reimbursed

by policy holders insurance company. Insurance companies have begun to pay

for preventative care to reduce to high cost of hospital care (i.e. pay fees for health club)

Insurance Exclusions: A specific situation that is

covered by an insurance co. May only be covered if injury is sustained in

competition, practice etc not non-accident or chronic injuries.

Pre-existing Conditions: A condition that is present prior to the current injury that predisposes an individual to damage. Often considered exclusions for insurance policies.

Deductable/ Co-pay

Deductible- the amount for which the person is liable on each injury before an insurance co will make payment (you pay first)

Co-pay: a relatively small fixed fee required to be paid for each office visit, out patient service, or filling of a prescription.

Other Insurance Information

Accident Insurance: Utilized to protect the student while on school

grounds while they in attendance. Schools general insurance might be limited and

accident insurance can assist when a student sustains an injury that provides additional coverage.

This type of coverage is limited and does not require knowledge of fault and the amount it pays is limited

Does not cover catastrophic injuries

Catastrophic Insurance Coverage Catastrophic:

Disastrous; ruinous relates to a permanent injury of the spinal cord, leaving

the athlete quadriplegic or paraplegic Plan that covers any injury so severe that the

patient’s quality of life is dramatically compromised. Care is usually very expensive (24-hour care,

extended stay facility) The NCAA purchases a catastrophic policy for all its

member institutions to provide for any traumatic injuries that occur to the covered athlete The max payout is $20million in a lifetime benefit after a

$75,000 deductable The premium is paid with the proceeds from the Division

I Basketball Championships

Documentation

Documentation and record keeping are essential to ensure and demonstrate that each athlete has consistently received the best care possible

Also assists in protecting the AT in the event that legal issues arise

HIPAA The Health Insurance Portability and Accountability

Act places a monetary fine and jail term as punishment for any confidentiality violations to protect both athletic and nonathletic injury information.

Staff may discuss daily operations but may not discuss any injury information outside of the AT “family”.

Confidentiality agreement includes coaches, teammates and the media unless the injured athlete gives written permission for the release of information to specific individuals.

Review

What are the 4 criteria needed to prove negligence?

What is an EAP? List 4 types of health care coverage

Chapter OverviewA great deal of care must be taken in following coaching and

athletic training procedures that conform to the legal guidelines governing liability.

Liability is the state of being legally responsible for the harm one causes another person. The standard of reasonable care assumes that a coach acts according to the reasonable standards of care of any individual with similar educational background or training.

A coach who fails to use ordinary or reasonable care-care that persons would normally exercise to avoid injury to themselves or to others under similar circumstances-is deemed negligent.

Although athletes participating in a sports program are considered to assume a normal risk, this assumption in no way exempts those in charge from exercising reasonable care.

Chapter Overview Cont’dCoaches can significantly decrease risk of litigation by making

certain that they have done everything possible to provide a reasonable degree of care to the injured athlete.

The major types of insurance that coaches should be familiar with are general health insurance, catastrophic insurance, accident insurance, and liability insurance, as well as insurance for errors and omissions.

Third-party reimbursement is the primary mechanism of payment for medical services in the United States. A number of different health care systems-including health maintenance organizations, preferred provider organizations, point of service plans, indemnity plans, and capitation plans-have been developed to contain costs.

It is essential that the coach or athletic trainer file insurance claims immediately and correctly.

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