Understanding Athletic Trainer Liability Risks

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December 19, 2018

By Mackenzie Simmons, ATC

As a healthcare professional, Athletic Trainers (ATs) provide acute emergency care, design and implement rehabilitation plans, document treatments, make return-to-play decisions and perform many other responsibilities. Because of this role in patient care, ATs are also at risk for liability and can be sued by a patient for negligence. As ATs, it is important for us to understand the legal definition of negligence and our risk for liability in practice.

The law defines negligence as the failure to use ordinary or reasonable care when treating a patient. Three stipulations must be in place for negligence to be proven – a duty of care to be responsible for the injury, conduct of that duty fell short and damages resulted from poor treatment. In the case where all 3 of these factors are met, a patient has the right to sue for negligent care.

There are 3 different types of legal wrongdoings (torts) that are typically seen in negligence cases – nonfeasance, malfeasance and misfeasance.

• Nonfeasance – act of omission; a person fails to perform a legal duty. An example of this would be if a patient complains of concussion symptoms and an AT fails to complete the proper tests for diagnosis.
• Malfeasance – act of commission; a person commits an act that is not his or hers to perform. An example of this would be an AT suturing a patient with an open laceration.
• Misfeasance – mistake; person improperly does something they have the legal right to do. An example of misfeasance would be spine boarding a patient with a suspected c-spine injury, but removing the helmet in an aggressive way, causing movement of the spine.

The BOC Standards of Professional Practice, Code 6.2, states “The Athletic Trainer or applicant: Maintains adequate and customary professional liability insurance.” Liability means being legally responsible for the harm that is caused to another, either intentional or accidental. To be protected from cases of negligence, ATs needs to have liability insurance to protect from any legal consequences that could occur. Each AT should either have professional liability insurance, and/or general liability insurance, which are discussed below.

All National Athletic Trainers’ Association (NATA) members have access to a Liability Toolkit that is located on NATA’s website and is used to help employees and employers on assessing the risk for both professional and general negligence. It is important to note that this is only a resource and should not be used as professional advice. Regarding liability insurance, the most important step an AT can take is to know their scope of practice and practice under that scope to ensure the professional liability insurance does not become void.

The Liability Toolkit is broken up into multiple sections. The first section determines the work profile of the AT. It asks questions about the AT’s employment setting, including who the employer is and what is their job classification (employee, volunteer or independent contractor). It is recommended that if an AT has multiple employment settings, they should fill out 1 form per setting to ensure there is liability coverage for each population.

The second section in the Liability Toolkit asks questions about the population of patients that the AT will provide care for. This needs to encompass all types of patients, including patients from the same school who are under the legal age of consent of treatment, patients from another school who are of legal age of consent for treatment, general patient population (coaches, employees of the school fans in the audience). This is just a small list of the differing types of patient population.

The following section talks about the types of services provided to each patient population. The selections include evaluation, treatment and rehabilitation, referral to physicians, injury prevention and emergency care.

Afterward, the Liability Toolkit lists specific questions about the job classification; this section contains some of the most important questions in concern to liability insurance. This is broken down into the major subheadings below.

• Sovereign immunity is a common law that protects government employees against liability for negligence. Sometimes the company will carry statutory immunity for certain government employees and entities. It is important to know if your employer has sovereign immunity or statutory immunity, and if you are covered by it.
• General liability insurance applies to claims of injuries that originate from one’s personal or business activities, and professional liability insurance pertains to claims of injuries or death that arise from one’s professional services. In regards to general liability insurance, there are three major issues that should be covered by the employee-sexual misconduct coverage, license protection, and loss of wages. It is also essential that written in the insurance, the AT is listed as a healthcare provider and is covered to provide care to all patients in each population previously listed.
• Tail coverage is a part of the liability insurance that covers the AT after he or she is no longer employed with that company. Usually this will cover the amount of time in the statute of limitations, and the length will vary from state to state. This additional coverage typically requires an extra premium but will be worth it in a former patient tries to bring a lawsuit on the AT within the statute of limitations.

The next section covers regulation and risk management, which analyzes if an AT is acting under their scope of practice and any other regulating agencies. If an AT is not working under the scope of practice, the general liability or professional liability coverage could be null and void. It is essential that an AT follow the scope of practice when providing care to patients and pay specific attention to the following topics.

• AT Scope of Practice – Each AT should know the rules and laws in their states practice act and how to correctly integrate those rules. This should include return-to-play decisions and ensuring that the AT is working under the team physician or medical director when making decisions. The AT and the team physician should have a written contract agreement, which should be consistent with the state practice act and other regulating agencies.
• Other Regulating Agencies – This section discusses information in other resources like the BOC Facility Principles. It also recommends that the AT is educated and consistent on acting with the concussion laws.
• Medical Documentation – This should include all treatment documentation that is provided by the AT and should also include emergency care. The documentation should be under a two-lock system (ie, in a locked cabinet in a locked room). If there are non-certified staff helping out with documentation, the AT should review and sign off on all notes.
• Medical Records Protection – Are the medical records compliant with the regulations of HIPAA and FERPA? The AT needs to be trained on these topics, and the training must be documented. Also, a Release of Medical Forms should be available if a patient requests their chart, and should include information about the patient, who is receiving the medical records, and the patient signature and date. Other questions asked in this section include length of retention on charts and ensuring that electronics are properly protected.
• Informed Consent – An extremely important aspect of legal care and can be brought up in many court cases against ATs. The key term is the word “informed” and it is used to ensure that the patient understands all factors that are involved in the decision to allow treatment and return-to-play options. The Liability Toolkit suggests that each AT have a detailed informed consent document that has been reviewed by a legal counsel, and also properly documents all patient education that is provided during the course of an injury.
• Sexual Misconduct – This is a very important topic, and it is important for ATs to be educated to limit claims in this nature. ATs should discuss, in advance, the process of any treatment that includes touching a patient and should be prepared to have a secondary individual in the room to observe treatment.

Following the section on regulation and risk management, the Liability Toolkit discusses the AT’s job description and working conditions. To make sure an AT is providing proper care to the designated populations, the job description needs to be correct. The necessary components include job title, minimal certification requirements, full scope of duties and specific items that needs addressed, including providing emergency care and educational programs. Acting within one’s comprehensive job description is important in having the AT perform duties that are covered in the liability coverage. Included in this section are questions about transportation; this talks about auto liability coverage, which covers injuries the driver may receive while driving his or her personal vehicle. The discussion of traveling is also deliberated on in this section, and states that the AT must be acting within their scope of practice while traveling over state lines.

The next section covers the work setting specific questions, high school, collegiate, clinical or educational, just to name a few. This topic begins with talking about agreements that are made between providing care for patients in the same league or conference, and whether this is in writing. Also discussed in the section is the subject of who can remove an patient from play, including referees, coaches or ATs. Then, there are questions regarding liability insurance policies in specific emergency situations, such as lockdowns, mass-casualty events or fights at the school.

To close the Liability Toolkit, there is a checklist that ATs should use when evaluating their employer-provided professional liability insurance.The Liability Toolkit checklist is available below:

• Review exclusions to determine if any activity in the AT’s practice would be excluded from liability coverage
• Ensure “athletic trainer” is specifically mentioned as a covered profession in the plan
• Review the claims-made coverage limit (only applies to injuries that occurred during the policy period) and aggregate coverage limit (maximum amount the insurance company will pay in monetary damages that arise during the policy period)
• Review to determine if the AT has coverage for disciplinary defense, deposition, and/or lost wages
• Determine if the plan is a claims-made coverage or occurrence policy
• Find out if the broker and insurance company have experience providing insurance for ATs.
• Review the financial strength of the insurance company
• Find out if the provider has a “seal of approval” from a healthcare association or if a colleague has personal experience with the quality of claim services
• Find out if the policy allows the AT to transfer coverage if he or she changes employers
• Know the provider’s procedure for cancellation of the policy
  • Immediately after submission, each AT can view the recommendations that the Liability

The Toolkit suggests to better protect in the case of liability. These recommendations should be discussed with the administration and legal counsel to find a way to be better protected by the liability insurance, either by adjusting the insurance policy or re-writing the patient population that the AT is currently providing care for at the current work setting. Each person also can print out the report that was submitted, and that can be used as a template to make the necessary changes to help protect the AT from being caught in a negligence lawsuit.

References

Arnheim, Daniel D., and William E. Prentice. "Principles of athletic training." (2000).

Risk and Liability https://www.nata.org/practice-patient-care/risk-liability