Chapter 3: Legal Liability and Insurance

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Chapter 3 Legal Liability and Insurance
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Legal Concerns

• Negligence suits involving coaches, athletic
  trainers, school officials and physicians have
  increased in frequency and amount of damages
  awarded
• Liability
• Being legally responsible for the harm one causes
  another person
• Must be certain you are aware of all rules and
  regulations relative to healthcare in a given
  state

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Standard of Reasonable Care

• Negligence the failure to use ordinary or
  reasonable care.
• Standards of reasonable care
• Assumes that a person is of ordinary and
  reasonable prudence
• Bring commonsense approach to the situation
• Must operate within the appropriate
  limitations of ones educational background

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Torts

• Legal wrongs committed against a person
  (liability results)
• May emanate from
• Nonfeasance
• Fail to perform legal duty, i.e. fail to refer
• Malfeasance
• Performs action that is not his/hers to legally
  perform, i.e. perform advanced treatment leading
  to complications
• Misfeasance
• Improperly perform something the person has a
  legal right to do

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Negligence

• Care giver does something a reasonably
  prudent individual would not.
• Care giver fails to do something a reasonably
  prudent individual would not.
• Athletic trainer has a duty to provide
  coverage to athletes (obligation)

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• Individual possessing higher level of training
  will possess higher level of competence
• Once the individual assumes duty of caring for
  athlete that person has an obligation to provide
  appropriate care
• Obligation to provide services vs. Scope of
  employment
• Good Samaritan Law
• Provides limited protection against legal
  liability to one that provides care should
  something go wrong

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Statutes of Limitation

• Specific length of time an individual can
  sue for injury resulting from negligence.
• Varies by state but generally ranges from
  one to three years
• Clock begins at the time the negligent act
  results in suit or from the time injury is
  discovered following negligent act
• Minors generally have an extension

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Assumption of Risk

• Athlete is made aware of inherent risks
  involved in sport and voluntarily decides to
  continue participating
• Expressed in written waiver or implied from
  conduct of athlete once participation begins
• Can be used as defense against an athletes
  negligence suit

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• Does not excuse overseers from exhibiting
  reasonable care and prudence in regards to
  conduct of activities or foreseeing potential
  hazards
• Many and varied interpretations (particularly
  with minors)
• Often a waiver will stand in court except in
  incidents of fraud, misrepresentation or duress

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Product Liability

• Liability of any or all parties involved in
  manufactured product for damages caused by
  product
• Includes manufacturer of components, assemblers,
  wholesaler, and retail store owner
• Products with inherent defects are subject to
  liability suits
• May be based on negligence, strict liability or
  breach of warranty fitness

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• Manufacturer of equipment has duty to design and
  produce equipment that will not cause injury
• Express warranty
• Manufacturers written guarantee product safety
• Equipment warning labels
• Informs athlete of possible dangers inherent with
  product use
• National Operating Committee on Standards for
  Athletic Equipment (NOCSAE)
• Minimum standards for equipment to ensure safety

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Insurance

• Major changes in insurance have occurred in light
  of managed care
• Major increases in the number of lawsuits and
  cost of insurance
• Medical insurance is a contract between the
  company and policyholder
• Company agrees to pay portion of medical bills
  following payment of a deductible

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General Health Insurance

• Policy that covers illnesses, hospitalization and
  emergency care
• Sometimes offered through academic institutions
  for students (athletics)
• Secondary insurance provided through institutions
  to cover costs above primary insurance coverage
• Schools and universities must ensure that
  athletes have primary insurance coverage (in
  place or arranged for)

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Reimbursement

• Primary mechanism of payment for medical services
  in the U.S.
• Policyholder insurance company reimburses health
  care providers for services rendered
• Number of different options
• Pre-arranged systems
• Payment for preventive care
• Other systems developed to contain costs

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Health Maintenance Organization

• Provide preventive measures and dictate where
  individual can receive care
• Permission must be gained to see someone outside
  of the plan (except in emergencies)
• HMO will pay 100 of costs if care rendered
  within the HMO plan providers
• Athletic trainers must have working knowledge of
  HMO limits and restrictions

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Preferred Providers Organization

• Provide discount health care and also limit where
  treatment can be obtained
• Must be aware of what facilities are approved for
  the program in order have cost completely covered
• May include additional types of coverage
  (physical therapy)
• PPO pay on a fee-for-service basis

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Point of Service

• Combination of HMO and PPO
• Based on HMO model but allows for care outside of
  the plan
• Flexibility is allowed for certain conditions and
  circumstances

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Indemnity Plan

• Most traditional form of billing for health care
• Fee-for-service plan that allows insured party to
  seek care without restrictions
• Provider charges patient or third-party payer
• Charges are set on fee schedule

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Capitation

• Form of reimbursement where members make standard
  payment monthly regardless of services rendered
• Managed care plans utilize this practice

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Accident Insurance

• Low cost plan to cover accident on school grounds
  to student
• Protects student against financial loss from
  medical and hospital bills
• Provides for additional protection for
  institution above regular policy
• Will cover costs associated with hospital care,
  surgery, and catastrophic injuries

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Catastrophic Insurance

• Catastrophic injuries in athletics are relatively
  rare, but are staggering to all involved
• Organizations (NCAA, NAIA, NFSHSA) provide
  additional coverage to deal with lifetime
  extensive care
• Ensuring that all athletes and faculty/staff
  coverage is in place is critically important

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• Filing of claims, at times, is the responsibility
  of the athletic trainer
• Can be very time consuming taking the athletic
  trainer away from other responsibilities
• Additional staff may be necessary to deal with
  added responsibilities

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Insurance to Protect the Professional

• Protect against damages that may arise from
  injuries occurring on school property
• Covers against claims of negligence on part of
  individuals
• Because of rise in lawsuits, professionals must
  be fully protected, particularly in regards to
  negligence
• Will cover negligence in civil case not
  criminal complaint

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Insurance to Protect the Professional (continued)

• Errors and omissions liability insurance has
  evolved to protect individuals against suits
  claiming malpractice, negligence, errors and
  omissions (each person should still have personal
  liability insurance)

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Insurance Billing

• Must file claims immediately and correctly
• To facilitate, collect insurance information at
  the start of the academic year
• Letters should be sent home to fully explain the
  coverage available and necessary procedures
• Standard forms are the norm, but accurate and
  thorough completion is critical