Transcript Rankin 3e, PPT Ch 07 - McGraw

Athletic Training Management
Chapter 7
Athletic Training Practice
© 2006 McGraw-Hill Higher Education. All rights reserved.
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
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The Profession
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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
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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
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The Profession

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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
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The Profession

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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
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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)
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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
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The Profession

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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
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The Profession

In noncredentialled states, the BOC
exam is the recognized credential to
practice
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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
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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
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STANDARD OF CARE AND
SCOPE OF PRACTICE
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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.”
© 2006 McGraw-Hill Higher Education. All rights reserved.
STANDARD OF CARE

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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.
© 2006 McGraw-Hill Higher Education. All rights reserved.
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
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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
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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
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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.
© 2006 McGraw-Hill Higher Education. All rights reserved.
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
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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
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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
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STANDARD OF CARE
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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)
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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
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Tort
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
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
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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
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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
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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
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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
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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
© 2006 McGraw-Hill Higher Education. All rights reserved.
Tort



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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
© 2006 McGraw-Hill Higher Education. All rights reserved.
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
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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
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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
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Negligence
• Breach of that duty
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the standard of care has been violated
Breach of duty may generally fall within three areas
• Prevention
• Standard of care
• Disclosure
• Causation
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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
© 2006 McGraw-Hill Higher Education. All rights reserved.
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
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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
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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.
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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.
© 2006 McGraw-Hill Higher Education. All rights reserved.
What happens in a lawsuit?
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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.
© 2006 McGraw-Hill Higher Education. All rights reserved.
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.
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What happens in a lawsuit?
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
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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.
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What happens in a lawsuit?
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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
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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
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What happens in a lawsuit?
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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
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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%)
© 2006 McGraw-Hill Higher Education. All rights reserved.
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
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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
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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.
© 2006 McGraw-Hill Higher Education. All rights reserved.