Chapter 3: Legal Concerns and Related Issues

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Chapter 3 Legal Concerns and Related Issues

• Jennifer L. Doherty, MS, LAT, ATC
• Academic Program Director, Entry-Level ATEP
• Florida International University
• Acute Care and Injury Prevention

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Liability

• State of being legally responsible for the harm
  one causes to another person.

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Negligence

• Negligence
• The failure to use ordinary or reasonable care
  that one would normally exercise to avoid injury
  to themselves or others.
• To establish negligence, one must establish
• (1) Duty of Care
• Part of official job description
• (2) Conduct fell short of the duty to care
• (3) Failure to provide care resulted in damages

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Standard of Reasonable Care

• Standards of reasonable care
• Assumes that a person is of ordinary and
  reasonable prudence/caution
• Common-sense
• Must operate within the appropriate limitations
  of ones educational background

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Torts

• Legal wrongs committed against a person
• Liability may emanate from
• (1) Nonfeasance
• Failure to perform legal duty (i.e. fail to
  refer)
• (2) Malfeasance
• Performs illegal action (i.e. perform advanced
  treatment leading to complications)
• (3) Misfeasance
• Performs legal action improperly (i.e. spine
  boarding without maintaining in-line
  stabilization)

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The Role of the ATC

• Athletic trainer has a duty to provide
  healthcare coverage to athletes
• Job description
• Obligation
• The ATC assumes duty of care for athletes
• The ATC has an obligation to provide appropriate
  care

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Protection for the ATC

• Sovereign Immunity
• Neither the government nor any individual who is
  employed by the government can be held liable for
  negligence
• Good Samaritan Law
• Provides limited protection against legal
  liability to one that voluntarily provides care

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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 have 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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Reducing the Risk of Litigation
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Athletic Trainer

• Work to establish good working relationships with
  athletes, parents and coworkers
• Establish policies regarding athletic training
  facility and coverage
• Develop emergency action plan
• Know the medical history of athletes

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• Maintain adequate records
• Detailed job description
• Obtain written consent relative to providing
  health care
• Maintain confidentiality
• Exercise caution with regards to medication
  distribution and modality use
• Ensure safe equipment and facilities

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• Follow physicians orders, particularly when
  dealing with participation of athlete
• Purchase liability insurance
• Know scope of practice
• Use common sense

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Product Liability

• Manufacturer of equipment has duty to design and
  produce equipment that will not cause injury
• 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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• Athletic trainers should not alter equipment
• Doing so invalidates the manufacturers warranty
• Results in placing liability solely on the
  athletic trainer

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General Health Insurance

• Policy that covers illnesses, hospitalization and
  emergency care
• May be 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

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Professional Liability Insurance

• 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
• All ATCs should carry and understand limits of
  coverage

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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

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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

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Filing an Insurance Claim

• Standard forms are utilized
• Must be complete and detailed
• More accuracy and thoroughness quick return and
  higher rate of reimbursement
• Billing Codes
• Diagnostic code
• Specifies injury/condition that is being treated
• Procedural code

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• ATC in clinical setting must be aware of
  third-party billing procedures
• May need to request approval from insurance
  companies for treatments to be rendered
• Billing must be in accordance with Current
  Procedural Terminology set by AMA
• Thorough record keeping is critical throughout
  the process

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Third-Party Reimbursement for Athletic Trainers

• ATCs have been able to bill third parties
• Most insurance companies refuse to reimburse
• Recently, increase in reimbursement in a variety
  of settings
• State licensing and credentialing will aid in
  this process but will remain concern for clinical
  ATCs

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• Reimbursement Advisory Group (NATA) responsible
  for assessing managed care and involvement of
  ATCs
• Athletic Training Outcome Assessment project
  (NATA) developed to present results of 3 year
  study
• Study focussed on functional outcomes,
  perceptions of care, physical, social, mental
  well-being, time lost due to injury and
  satisfaction of care and treatment
• Third-party payers require outcomes research when
  evaluating a contract