Athletic Training Management

Athletic Training Management Chapter 7 Athletic Training Practice

The Profession • Athletic training has the following content domains identified by the BOC: • prevention • recognition, evaluation, and assessment • immediate care • treatment, rehabilitation, and reconditioning • organization and administration • professional development and responsibility

The Profession • Athletic training is regulated in 44 states, all except CA, WA, AK, MD, WV, and MT • Regulation is in the form of • Licensure • Registration • Certification • Exemption

The Profession • For licensure a person must meet specific qualifications and pass an examination • Frequently states will purchase the results of the BOC exam for content and then have the candidate pass a state rules exam • Upon being licensed, the athletic trainer is subject to state laws and rules of the practice act

The Profession • State practice acts supercede the BOC direct service and service program standards • Athletic training is the ONLY allied health profession in some states to define the population that may be patients • Failure to follow the law or practice act will subject a person to practicing without a license, usually a misdemeanor punishable by a fine and/or jail up to 90 days, depending on the jurisdiction

The Profession • Medical practice acts not only specify what you cannot do, but also what you can do, thereby limiting your ability to practice some things, again depending on the jurisdiction • Registration is a credential where the athletic trainer possesses certain qualifying criteria, pays a fee, and is put on a list of those allowed to practice

The Profession • The biggest problem is that there is no practice act identifying what you can and cannot do, possibly allowing confusing crossover with another profession’s practice act • Certification is where an athletic trainer presents a minimum set of credentials and then takes a STATE examination (different from the BOC exam)

The Profession • There is no title protection, that is anyone can claim to be an athletic trainer (but not a state-certified athletic trainer) • Certification can restrict the application of specific processes to those certified by the state • Exemption is a status removing an athletic trainer from another profession’s practice act, usually PT

The Profession • In those states with no regulation, other profession’s practice acts may limit what you can do • To date, no athletic trainer in a college, high school, or professional setting has ever been accused of practicing another allied profession in one of these states

The Profession • In noncredentialled states, the BOC exam is the recognized credential to practice

Fair Labor Standards Act • In April 2004 the US Department of Labor Wage and Hour Division published Regulation 29 CFR Part 541 • Section 541.301 (8) states that athletic trainers who have completed 4 years of pre-professional and professional study in an accredited education program and passed the BOC exam generally meet the duties requirements for learned professions

Fair Labor Standards Act • There have been two major court cases (Winkle v. Hutchinson Community College and Owsley, et al., v. San Antonio Intermediate School District) • Found for the defendants on the basis that athletic trainers used discretion and independent judgment thereby making them ineligible for the overtime provisions of the Federal Fair Labor Standards Act

STANDARD OF CARE AND SCOPE OF PRACTICE • The practice of medicine is unlimited when done by allopathic (MD) or osteopathic (DO) physicians • Each state has its own definition, such as: • In Michigan the practice of medicine means the “diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts.”

STANDARD OF CARE • All others in medicine have a limited scope of practice, that is subordinate to MD/DOs • For the most part, diagnosis as done by a physician, surgery, and prescribing, especially medications, are forbidden to all but physicians • Allied professionals have the freedom to apply their knowledge, but within a narrow scope of practice. • Athletic trainers may not perform surgery. • Physical therapists may not reduce dislocations and prescribe pain medications.

STANDARD OF CARE • Standard of care is the level of the duty that is owed to the patient • Standard of care was founded in reasonable and prudent persons performing a task and varies with medical sophistication and competency that must be demonstrated by someone who has similar education and training • This standard is now the minimal level expected of a reasonable sports medicine professional

STANDARD OF CARE • It must be sufficient to protect the patient from foreseeable risk of unreasonable harm • In the area of sports medicine the standard of care is somewhat difficult to establish due to the large number of medical and allied health professionals caring for athletes • Due to the general lack of uniform athletic trainer practice legislation what is accepted practice in one state may be forbidden in another

STANDARD OF CARE • The Ohio licensure law (Ohio Rev. Code §4755.60–4755.65) specifies that athletic training is the practice of prevention, recognition, and assessment of an athletic injury and the complete management, treatment, disposition, and reconditioning of acute athletic injuries upon referral of an individual authorized under other sections of the law. There is no distinction requiring a physician prescription for modality use

STANDARD OF CARE • The Georgia law (43-5-1-(2))defines it thusly • 'Athletic trainer' means a person with specific qualifications, as set forth in Code Section 43-5-8 who, upon the advice and consent of a physician, carries out the practice of prevention, recognition, evaluation, management, disposition, treatment, or rehabilitation of athletic injuries; and, in carrying out these functions, the athletic trainer is authorized to use physical modalities, such as heat, light, sound, cold, electricity, or mechanical devices related to prevention, recognition, evaluation, management, disposition, rehabilitation, and treatment. The term 'athletic trainer' shall not include any student, teacher, or other person who serves as an athletic trainer for an elementary school or high school, either public or private, within this state.

STANDARD OF CARE • There are over 30,000 standards statements that come from a variety of sources • OSHA • Americans with Disabilities Act • Drug Enforcement Agency • Title IX of the Federal Education Amendments of 1972 • Civil Rights Act of 1964 • BOC

STANDARD OF CARE • BOC has thirteen standards divided into two groups • Practice standards essential practice expectations for all athletic trainers. Compliance with the Standards is mandatory • Code of Professional Responsibility includes responsibility to the patient, the profession, competency, social responsibility, research and business practices • These statements help to establish the minimal requirements of action for practicing athletic trainers

STANDARD OF CARE • Other standards come from the NCAA, the American Medical Association and the American Athletic Trainers Association • Webster, Mason, and Keating completed Guidelines for Professional Practice in Athletic Training, 1992, which was intended to develop written procedures with which to judge a person’s standard of conduct in relation to the standard of care

STANDARD OF CARE • Courts have shown a willingness to distinguish between ‘standards’ and ‘guidelines’ • Where employees violate nationally published standards, the company may have ‘vicarious’ liability • The standard of care established for athletic trainers has been elevated in court to the level of a physician at least one time (Gillespie v. Southern Utah State College, 669 P 2nd 861 (Utah 1983)

STANDARD OF CARE • The plaintiff sprained an ankle and was told to use ice, 20 min on, 2 hrs off. The plaintiff felt if a little was good, more was better and left it on indefinitely. Due to frostbite, part of his foot was amputated. The court held the AT to the physician standard of care and then found for the defendant since the AT met the physician standard. • If the courts hold an AT to that standard, they will bring in physicians to be the experts, not ATs

Tort • Tort law involves legal wrong done by a person upon the person or property of another and for which the courts provide some remedy, usually in the form of monetary damage • This action is civil and must be filed by the wronged party against the person committing the wrong in a court proceeding

Tort • There has been a steady increase in tort actions in the recent past • Langley and Hawkins suggested that possible reasons for this increase include: • insurance shortfalls • Insurance does not cover the cost of the injury • the right to sue • More awareness • the doctrine of entitlement • When a jury sees someone injured, they think someone must pay

Tort • settlements • Defendants weigh the cost of paying vs defending • the myth of being risk free • Because everything is safe the athlete does not do everything they can to protect themselves • There is a misperception that professionals do not understand the participants lack of understanding of risk so they do not tell all about the risks • Two definitions are important here • First undertaking a profession and states that professionals have a duty to exercise the skills and knowledge normally employed by members of the profession to prevent unreasonable risk of harm to others

Tort • Second is a definition of negligence, which states that negligent conduct can either be an act of commission that invades the interests of another or an act of omission where another is injured by failing to act when there was a duty to act • To understand negligence you need to understand two other definitions • When someone is injured society has determined that person has the right to be made whole • Fault is a concept designed to assign the blame for injury to a defect in judgment or conduct by someone who is responsible for the safety of those under their care

Tort • Liability is the responsibility for actions that cause harm to others • Liability can be due to any number of reasons, among them negligence, failure to inform, breach of contract, or assault and battery • More than one person may be responsible for injury • Vicarious liability is where an employer is deemed responsible for the actions of its employees • Vicarious liability can be either personal or institutional • Where the liability is personal, the employer is held responsible due to negligent hiring, retention, lack of supervision, lack of adequate training, etc. • Where the liability is institutional the employee is acting as the agent of the employer

Tort • When a person has been injured in our society, the person causing the injury is usually forced to compensate the injured person, most often by paying damages to make the injured person whole • Damages may be actual damages, speculative damages, and/or punitive damages • Actual damages include the costs of treating the injury, rehabilitation, lost wages, and any modifications that must be made in the persons living arrangements due to the injury

Tort • Speculative damages asks the jury to determine future and how earning capacity has been effected by the injury. Third parties such as spouses may also request speculative damages. One common area here is loss of consortium (loss of the comforts of marriage including sexual relations between a husband and wife) • Punitive damages are to punish the causing person so as to see the causing factors will not happen again • Punitive damages also serve as a warning to others who may be currently behaving in a similar manner to the cause of the injury • These damage awards are tax free

Malpractice • The most common legal problem faced by physicians is malpractice • Individual state laws will determine whether an athletic trainer can be sued for negligence or malpractice • Malpractice is a liability where there is an unfavorable outcome of patient–practitioner interaction • Usually shorter statute of limitations than for negligence

Malpractice • Some state malpractice laws define the specific job classifications that can be sued for malpractice • Other states refer to “healthcare providers” when assessing who is subject to their medical malpractice law • In six jurisdictions (Alaska, New Hampshire, West Virginia, New Jersey, District of Columbia, and Puerto Rico) there are no malpractice laws • proceedings are brought under negligence laws

Negligence • To prove negligence four factors must be shown: • Duty to act • standards and guidelines statements previously mentioned are often used in legal proceedings to establish the duty to act • Athletic trainers who witness unsafe playing conditions, see an athlete injured, or follow up with rehabilitation and reevaluation have the duty to perform the domains of athletic training while doing no harm

Negligence • Breach of that duty • the standard of care has been violated • Breach of duty may generally fall within three areas • Prevention • Standard of care • Disclosure • Causation • the determination that the actions led to damage and to what extent the person was responsible for the damage caused • requires the action of the athletic trainer to have been foreseeable as a cause of damage • results that are unforeseen by a reasonable and prudent athletic trainer are forgiven under this test

Negligence • Athletic trainers must carefully supervise student athletic trainers, because incompetent actions of student athletic trainers have been found liable as a breach of the standard of care • O’Brien v. Township High School District (1980) where an athletic trainer assigned a student to debrede a wound suffered by an athlete off campus (therefore not athletic related) • It became infected and required hospital treatment – practicing medicine without a license and civil action against the staff athletic trainer

Negligence • Damage • the athletic trainer’s conduct (act of omission or act of commission) must be proven to have caused the plaintiff to suffer damage • Where there is no damage, there is no negligence, even if the athletic trainer acted improperly • The courts have found that no person is able to prevent harm that is completely unforeseeable or for which the risk is so small that it is usually disregarded

Negligence • When assessing the standard of care for professionals, Blond’s Torts lists seven criteria: • Locality rule. There is a duty to follow the standards of the profession as it is practiced locally. • Success is not guaranteed. The only requirement is for the professional to act with a fundamental level of skill. • Differing schools of thought. Where professionals may reasonably differ, a person may choose any reasonably acceptable method. • Specialists. Specialists are held to a higher standard of care than those who are not specialists. • Novices. Those who are newly licensed are held to the same standard as experienced professionals. • Unreasonable standard. If a court declares a standard unreasonable, then those practicing that standard are negligent. • Doctrine of informed consent. Unless the treatment is an emergency, professionals have a duty to inform a patient of all risks inherent in the procedure.

Negligence • Negligence is proven through expert testimony or circumstantial evidence • Expert testimony involves the use of professionals with the same qualification as the defendant to establish what is the applicable standard of care and what would a reasonable person have done in the same circumstances • Circumstantial evidence is the presentation of a set of facts from which another set of facts may be inferred.

What happens in a lawsuit? • When a person believes they have been injured by another they (the plaintiff) will file a claim in court • Court legally notifies the other person (the defendant) that a claim has been filed against them • Defendant must answer this claim in court.

What happens in a lawsuit? • If an athletic trainer is sued, he or she needs to consult with an attorney at once • Do not discuss anything with the plaintiff or plaintiff’s attorney • If the athletic trainer has liability insurance, the insurer will wish to assign counsel • If you have an attorney in mind, inform the insurance company, which will usually grant your request • After an attorney is assigned, he or she will review a copy of the plaintiff’s file • Next, a meeting will be arranged for you to meet the attorney and discuss the case • Do not hold back any information, as it will invariably come out during discovery or testimony.

What happens in a lawsuit? • Discovery is the process of obtaining information from the other side in a case • During civil procedures, discovery takes place after the filing of the suit, unlike criminal law when discovery is often done in secrecy and before the charges are filed • During discovery, written requests are made for all pertinent documents • These requests cover the defendant’s background, education, training, and experience • Witnesses are interviewed by deposition • These interviews can be videotaped.

What happens in a lawsuit? • Depositions can take place two or more years after the initiation of a suit, hence complete, accurate, written records are a must • Depositions are done under oath in the presence of a court reporter • Transcripts of the deposition will be available to all of the attorneys in a case • At trial, care must be given that testimony is consistent with that given during a deposition

What happens in a lawsuit? • When preparing for a deposition, it is a good idea to bring a copy of your comprehensive resume or vita • Simplifies the questions about your background • Careful review of the patient record is a must • Being able to recall from the written record the facts of a case is extremely important • Rather than guessing, or speculating on what an athletic trainer thinks happened, the answers should be short, to the point, and cover only the question asked • If there is no written prompt in the records, it is better to say, “I do not know,” than to guess • Care should be given not to educate the plaintiff’s attorney in the nuances of a profession about which he or she may have little understanding

What happens in a lawsuit? • The completing of discovery should bring to light the existence of duty and the performance of that duty • Once the record is complete and the court has found a cause of action exists, the court will attempt to mediate a settlement before going to trial • Saves everyone's time, effort, and resources • If no agreement is possible the case will move to trial • Negligence is the most common violation charged against athletic trainers

What happens in a lawsuit? • The plaintiff must prove the four parts of negligence all exist • Should the plaintiff not present sufficient evidence, the defendant will move for summary judgment • If the judge agrees, the case will be decided for the defendant and trial is over • If the judge does not agree, the defense will present its case to explain the points made by the plaintiff • Once both side have presented their case, a jury will decide the outcome • In civil cases the decision is based on a preponderance of the evidence (greater than 50%)

What happens in a lawsuit? • During the trial the athletic trainer will be expected to present the same points of fact in answering questions that he or she did during the deposition • Where there are discrepancies, the plaintiff’s lawyer most likely will try to infer the defendant is lying, either during the deposition or now, during the trial

What happens in a lawsuit? • The usatrainers.com website lists ten common mistakes that encourage litigation. These include: • Alter the client’s record • Fail to document what you did or did not do and why • Fail to follow your own policies and procedures even though your actions may fall within the standard of care • Treat a client like he or she is unimportant and what he or she has to say is insignificant • Speak in a superior manner to a client using terminology they do not understand • Refuse to treat a client because of his/her condition • Tell a client that a co-worker made an error which caused the client’s problem • Fail to obtain informed consent from the client and a bad result, but known risk, ensues • Discuss individual cases with friends or family members, breaching the client’s confidentiality • Speak of confidential client information in the hallways where unsuspecting family members or others may hear

Outcome • Remember that even if the athletic trainer prevails in the action before the court, the tide of public opinion does not always stay with the winning side. Reputations may be damaged to the extent of losing referrals and patients. In addition, the work of preparation, discovery, deposition, and trial is time-consuming. This is time away from the job, disrupting an athletic trainer’s daily work life.

Athletic Training Management