Chapter 3: Legal Concerns and Insurance Issues

William E. Prentice

OBJECTIVES

When you finish this chapter you should be able to

• Analyze the legal considerations for the athletic trainer acting as a health care provider.

• Define the legal concepts of torts, negligence, and assumption of risk.

• Identify measures that the athletic trainer can take to minimize the chances of litigation.

• Explain product liability.

• Categorize the essential insurance requirements for the protection of the patient.

• Classify the types of insurance necessary to protect the athletic trainer who is acting as a health care provider.

KEY TERMS

• liability

• negligence

• standard of reasonable care

• torts

• nonfeasance

• malfeasance

• misfeasance

• duty of care

• sovereign immunity

• Good Samaritan law

• statute of limitation

• assumption of risk

• health insurance

• managed care

• Affordable Care Act (ACA)

• International Classification of Diseases and Related Health Problems (ICD-10-Clinical Modifications)

• Current Procedure Terminology Code (CPT)

• National Provider Identifier (NPI)

LEGAL CONCERNS FOR THE ATHLETIC TRAINER

Ours is a litigious society in which legal actions and subsequent lawsuits have become the rule rather than the exception.^41,50 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 regarding issues of liability and negligence, regardless of the setting in which they practice.⁴⁰ Liability means being legally responsible for the harm one causes another person.⁴¹ There appears to be a recent increase in the number of lawsuits arising from concussion-related injuries to student-athletes,³⁸ and from failure to remove an athlete who is obviously injured from in practice sessions and competitions.³⁷ A great deal of care must be taken in following best-practices in athletic training to reduce the risk of being sued by an athlete and being found liable for negligence.^3,11,41,46

The Standard of Reasonable Care

Negligence is the failure to use reasonable care—care that persons would normally exercise to avoid injury to themselves or to others under similar circumstances.¹³ The standard of reasonable care assumes that an individual is neither exceptionally skillful nor extraordinarily cautious but is a person of reasonable and ordinary prudence. Put another way, it is expected that an individual will be thoughtful and careful relative to the situation at hand and will exercise due care in its handling. In most cases in which someone has been sued for negligence, the actions of a hypothetical, reasonably prudent person are compared with the actions of the defendant to ascertain whether the course of action the defendant followed was in conformity with the judgment exercised by such a reasonably prudent ...