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SHOWTIME!!. Legal Issues in Training. Day 28 Reference: Earle and Baechle - Chapter 25. The Perils of Litigation. Increased litigation in society
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Legal Issues in Training Day 28 Reference: Earle and Baechle - Chapter 25
The Perils of Litigation • Increased litigation in society • Competent trainers should become familiar with and practice the application of professional standards as a means to avoid possible litigation • Proper training and certification by reputable organizations (e.g., ACSM and NSCA) • Knowledge of and respect for the legal system enables one to become a more competent trainer and lessens the chances of being involved in a litigation
Tort Law • Trainers are most likely to be sued under tort law as a result of negligence due to substandard performance • Tort law is any wrongful act that does not involve a breach of contract and therefore may be cause for a civil suit
Five Aspects of a Successful Tort The basic elements of a successful tort are fivefold, in that once a legal duty (#1) has been established and this reality is coupled with the fact that a documented breach (#2) of that duty was the actual or proximate cause (#3) of verified insult, injury, or damage (#4), then compensation or damages (#5) can be awarded
If identified as a defendant in a lawsuit, during a testimony or deposition related to the lawsuit, trainers must be able to document their qualifications and competencies as well as the guidelines, standards, and procedures that they were following
Negligence • Should be a primary concern of all trainers as well as employers of trainers who may be liable for negligence of the trainers under a legal doctrine called respondent superior • Negligence is the failure to conform one’s conduct to a generally accepted standard
Four Elements of Negligence • Duty - an obligation to conform to a certain conduct that reflects the standard of care • Breach of Duty - conduct of trainer was not consist with the standard of care • Causation - breach of duty must be the true cause of the injury or damage • Damages - loss due to the injury which may be either economical or non-economical All four elements must exist for negligence to exist
Duty and the Trainer“Standard of Care” • Established by examination of : • The standard of practice developed and published by professional organizations such as ACSM’s Health/Fitness Facility Standards and Guidelines and NSCA’s Strength and Conditioning Standards and Guidelines • The special or unique relationship that exists between the trainer and the client/athlete
Considerations to Reduce Liability Exposure • Complete informed consent, assumption of risk, and agreement to participate documents • Preparticipation screening and medical clearance • Perform appropriate fitness testing • Personnel qualification • Optimal program design based on needs and goals • Program supervision and instruction • Facility and equipment setup, inspection, maintenance, repair, and signage (Safety!) • Maintain records of inspection, maintenance, and repair
Considerations to Reduce Liability Exposure • Emergency planning and response • Client/athlete records and record keeping (maintain confidentiality) • Equal opportunity and access • Participation in strength and conditioning activities by children • Supplements, ergogenic aids, and drugs • Compliance to all relevant laws, regulations, and published standards
Considerations to Reduce Liability Exposure • Trainers are “suspecticians” not “diagnosticians”; that is, although trainers may feel that a particular diagnosis is likely, they may not make medical diagnoses and prescribe treatment • The proper scope of practice for trainers includes assessing, motivating, educating, and training clients/athletes; it does not entail diagnosing, treating, or counseling, which are responsibilities of licensed health care providers • Emergency plans should be rehearsed (announced and unannounced) on a regular basis and followed up with timely critiques and corrective actions • Having emergency oxygen and automated external defibrillators (AEDs) available reflects a professional commitment to an emergency response • Have liability insurance, particularly if the trainer is a self-employed, independent contractor
NSCA’s Ethical Standards for Trainers • Respect rights, welfare, and dignity of all individuals • Provide equal and fair treatment • Provide and maintain a safe and effective training environment • Comply with all general laws • Accept the responsibility for sound judgment • Respect the confidentiality of an individual • Be accountable
NSCA’s Ethical Standards for Trainers • Refer individuals to more qualified professionals when appropriate • Remain current through continuing education activities • Avoid behavior and conduct that would constitute a conflict of interest or actions that adversely reflect on the profession • Strive to safeguard the public by reporting ethical violations “It’s okay to be a tattle tailor or whistle blower”
Making the Protective Documents Enforceable • Have a knowledgeable lawyer review the documents • Protective documents are contracts and can only be signed by an adult; obtain parental signatures for minors • Informed consent form should be completed and signed before any preparticipation screening or fitness testing occurs • All documents should be administered properly allowing for adequate time for completion and administered by a well-trained employee who can explain the documents • Protective documents should be stored in a secure place for an adequate amount of time, which may be up to four years after the relationship with a client/athlete has ended • Exculpatory clauses or waivers of liability, which state that the client/athlete releases the trainer from any liability associated with negligence by the trainer, are generally unenforceable
