Chapter 3
Legal Liability and Insurance
LEGAL CONCERNS FOR THE
ATHLETIC TRAINER
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Nowhere is this more true than
in our health care system.
Ironically, athletic trainers, like
all health care providers, are
constantly held accountable
both for things they do and
things they don’t do when
treating patients.
The potential always exists
that techniques and
procedures athletic trainers
use in providing health care
will result in some legal action.
Liability
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means being legally responsible for the
harm one causes another person.
Negligence
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is the failure to use ordinary or reasonable care—care
that persons would normally exercise to avoid injury to
themselves or to others under similar circumstances.
To establish negligence, an individual making the
complaint must establish three things:
(a) a duty of care (Part of an official job description)
existed between the person injured and the person
responsible for that injury
(b) conduct of the defendant fell short of that duty of
care
(c) resultant damages
Torts
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Legal wrongs committed against a person.
All individuals are expected to conduct
themselves without injuring others.
When they do so, either intentionally or by
negligence, they can be required by a
court to pay money to the injured party
(“damages”), so that ultimately they will
suffer the pain caused by their action.
Types of Torts
Nonfeasance When an individual fails to perform a
legal duty.
(ex: not attending practice/game without justifiable
reason/replacement or not referring a major injury to a
physician)
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Malfeasance An individual commits an act that is not
legally his to perform.
(ex: applying sutures/stitches or clearing an individual from
a concussion)
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misfeasance An individual improperly does something
he or she has the legal right to do.
(ex: dosen’t properly apply a brace, clean a wound, etc.)
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Negligence
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When an athletic trainer is sued, the complaint typically is for the
tort of negligence.
(1) does something that a reasonably prudent person would not
(2) fails to do something that a reasonably prudent person would do
under circumstances similar to those shown by the evidence
To be successful, an individual must prove that:
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(1) the athletic trainer had a duty to exercise reasonable care
(2) that the athletic trainer breached that duty by failing to use
reasonable care
(3) that there is a reasonable connection between the failure to use
reasonable care and the injury the individual suffered, or that the
athletic trainer’s action made the injury worse.
Good Samaritan
law
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Provides limited protection against legal
liability to any person who voluntarily
chooses to provide first aid.
What do you think?!
A baseball batter was struck with a pitched ball directly in the orbit of the right
eye and fell immediately to the ground. The athletic trainer ran to the player
to examine the eye. There was some immediate swelling and discoloration
around the orbit, but the eye appeared to be normal. The player insisted
that he was fine and told the athletic trainer he could continue to bat. After
the game the athletic trainer told the patient to go back to his room, put ice
on his eye, and check in tomorrow. That night the baseball player began to
hemorrhage into the anterior chamber of the eye and suffered irreparable
damage to his eye. An ophthalmologist stated that if the patient’s eye had
been examined immediately after the injury, the bleeding could have been
controlled and there would not have been any damage to his vision.
? If the patient brings a
lawsuit against the athletic
trainer, what must the patient
prove if he is to win a
judgment?
And the answer is……
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An athletic trainer who assumes the duty
of caring for an athlete has an obligation
to make sure that appropriate care is
given. If the athletic trainer fails to provide
an acceptable standard of care, there is a
breach of duty on the part of the athletic
trainer, and the athlete must then prove
that this breach caused the injury or made
the injury worse.
Statutes of Limitation
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sets a specific length of time that
individuals may sue for damages from
negligence.
The length of time to bring suit varies
from state to state, but in general
plaintiffs have between 1 and 5 years to
file suit for negligence.
What protects the Athletic
Trainer/Athletic First Responder?
Assumption of Risk
 The individual, through express or implied
agreement, assumes that some risk or
danger will be involved in the particular
undertaking. In other words, a person
takes his or her own chances.
Tips to reduce the risk of
litigation…
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1. Work to establish good personal
relationships with athletes, parents,
patients, clients, and coworkers.
2. Establish specific policies and
guidelines for operation of an athletic
training facility or clinic, and maintain
qualified and adequate supervision of the
facility and equipment at all times.
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3. Develop, review annually, and carefully follow
an (EAP) emergency action plan.
4. Become familiar with the health status and
medical history of the individuals under his or her
care (see Chapter 2) so as to be aware of problems that
could present a need for additional care or caution.
5. Keep factually accurate and timely records that
document all injuries and rehabilitation steps, and
set up a record retention policy that allows records to be
kept and used in defense of litigation may be brought by
a patient. A record retention system needs to keep
records for long enough to defend against suits brought
by patients after they reach the age of eighteen. (usually
5-7 years)
6. Document efforts to create a safe rehabilitation or
training environment.
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7. Have a detailed job description in writing.
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8. Obtain, from parents or guardians when minors are involved,
written consent for providing health care (see Chapter 2).
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9. Maintain the confidentiality of medical records (see Chapter 2).
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10. Exercise extreme caution in the administration, if allowed by
law, of nonprescription medications; athletic trainers may not
dispense prescription drugs, however they can administer them with
proper documentation.
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11. Use only those therapeutic methods that he or she is qualified to
use and that the law states may be used.
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12. Do not use or permit the presence of faulty or hazardous
equipment.
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13. Work cooperatively with the coach and the team physician in the
selection and use of sports protective equipment, and insist that the
best equipment be obtained, properly fitted, and properly
maintained.
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14. Do not permit injured players to participate unless
cleared by the team physician.
15. Develop an understanding with the coaches that an
injured patient will not be allowed to reenter competition
until, in the opinion of the team physician or the athletic
trainer, he or she is psychologically and physically able.
Athletic trainers should not allow themselves to be pressured to
clear a patient until he or she is fully cleared by the physician.
16. Follow the express orders of the physician at all times.
17. Purchase professional liability insurance that provides
adequate financial coverage and be aware of the limitations of the
policy.
18. Know the limitations of his or her expertise as well
as the applicable state regulations and restrictions that limit the
athletic trainer’s scope of practice.
19. Use common sense in making decisions about a patient’s
health and safety.
Bottom Line…..
 Always
work on the side of
caution, and use common
sense!
Insurance Terms
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Exclusions: treatment not covered by the insurance policy
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Product Liability: Written guarantee athletic equipment is safe
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Point of Service Plan: combination of HMO (health maintenance)/PPO
(preferred provider) plans
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Capitation: members make a standard payment
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Deductible: owed first (annually) before insurance company will pay
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Copayment: a specific amount paid by policy holder
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Fee for Service: Most traditional form of billing for healthcare