Download Chapter Three

Legal Liability and Insurance
Sports Med I
Mrs. 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 through
1. Negligent behavior
2. Failure to inform a patient of all
pertinent information
3. 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. Omission
2. 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 Court
Patient 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. Prevention
3. Immediate Care
4. Clinical Evaluation and Diagnosis
5. Treatment, Rehabilitation, and Reconditioning
6. Program Discontinuation- once the patient has
received optimal benefit
7. Organization and Administration
To prove Negligence in Court
2. A breach of duty
proven 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. Damage
If 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.
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3.
4.
5.
6.
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8.
9.
Develop a list of job expectations
Maintain CPR/ 1st Aid Certifications
Develop an Emergency Action Plan
Obtain Consent form/waiver
Conduct pre-participation physicals
Document all injuries
Consistently update education
Periodically inspect facilities and equipment
Maintain effective lines of communication
Reducing the Risks of Litigation for
Negligence For AT & Coaches
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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
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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
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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
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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:
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4.
HMO- Health Maintenance Organization
PPO- Preferred Provider Organization
POS- Point-Of-Service
EPO- Exclusive Provider Organizations
HMO Health Maintenance Organization
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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
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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:
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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
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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 Overview
A 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’d
Coaches 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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