Chapter 3: Legal Concerns and Related Issues

Liability:

State of being legally responsible for the harm

one causes to another person.

Standard of Reasonable Care

•Negligence: the failure to use ordinary or reasonable care.

•Standards of reasonable care–assumes that a person is of ordinary and reasonable prudence–bring commonsense approach to the situation–must operate within the appropriate limitations of ones educational background

Torts

•Legal wrongs committed against a person (liability results)

•May emanate from –act of omission (fail to perform legal

duty, i.e. fail to refer)

–act of commission (performs action that is not his/hers to legally

perform, i.e. perform advanced treatment leading to complications)

Act of omission: individual fails to perform a legal duty (fail to refer)

Act of commission: individual performs an act that is legally not his/hers to perform (advanced treatment leading to complications)

Proving Negligence

•Care giver does something a reasonably prudent individual would not.

•Care giver fails to do something a reasonably prudent individual would not.

•Athletic trainer has a duty to provide coverage to athletes (obligation)

DUTY

Statutes of Limitation

•Specific length of time an individual can sue for injury resulting from negligence.

•Varies by state but generally ranges from one to three years

•Clock begins at the time the negligent act results in suit or from the time injury is discovered following negligent act

•Minors have generally have an extension

Assumption of Risk•Athlete is made aware of inherent risks involved in sport and voluntarily decides to continue participating

•Expressed in written waiver or implied from conduct of athlete once participation begins

•Can be used as defense against an athlete’s negligence suit

• Does not excuse overseers from exhibiting reasonable care and prudence in regards to conduct of activities or foreseeing potential hazards

• Many and varied interpretations (particularly with minors)

• Often a waiver will stand in court except in incidents of fraud, misrepresentation or duress

How do you reduce the risk of litigation as a coach, athletic

trainer/allied health professional?

Coach

• Warn athletes of potential dangers involved in sport

• Supervise regularly and attentively• Prepare and condition athletes• Instruct athletes on skills of their

respective sports• Ensure proper and safe equipment and

facilities

Athletic Trainer

• Work to establish good working relationships with athletes, parents and coworkers

• Establish policies regarding athletic training facility and coverage

• Develop emergency action plan• Know the medical history of athletes• Maintain adequate records

• Detailed job description

• Obtain written consent relative to providing health care

• Maintain confidentiality

• Exercise caution with regards to medication distribution and modality use

• Ensure safe equipment and facilities

• Follow physician’s orders, particularly when dealing with participation of athlete

• Purchase liability insurance

• Know scope of practice

• Use common sense

Insurance• Major changes in insurance have occurred in light

of managed care

• Major increases in the number of lawsuits and

cost of insurance

• Medical insurance is a contract between the

company and policyholder

• Company agrees to pay portion of medical bills

following payment of a deductible

General Health Insurance• Policy that covers illnesses, hospitalization and

emergency care

• Sometimes offered through academic institutions for students (athletics)

• Secondary insurance provided through institutions to cover costs above primary insurance coverage

• Schools and universities must ensure that athletes have primary insurance coverage (in place or arranged for)

Accident Insurance

• Low cost plan to cover accident on school grounds

• Protects against financial loss from medical and hospital bills

• Provides for additional protection for institution above regular policy

• Will cover costs associated with hospital care, surgery, and catastrophic injuries

Professional Liability Insurance

• Protect against damages that may arise from injuries occurring on school property

• Covers against claims of negligence on part of individuals

• Because of rise in lawsuits, professionals must be fully protected, particularly in regards to negligence

Catastrophic Insurance• Catastrophic injuries in athletics are relatively

rare, but are staggering to all involved

• Organizations (NCAA, NAIA, NFSHSA) provide additional coverage to deal with lifetime extensive care

• Errors and omissions liability insurance has evolved to protect individuals against suits claiming malpractice, negligence, errors and omissions (have personal liability insurance)

• Ensuring that all athletes and faculty/staff coverage is in place is critically important

• Filing of claims, at times, is the responsibility of the athletic trainer

• Can be very time consuming taking the ATC away from other responsibilities

• Additional staff may be necessary to deal with added responsibilities

Third-Party Reimbursement

• Primary mechanism of payment for medical services in the U.S.

• Policyholder insurance company reimburses health care providers for services rendered

• Number of different options– Pre-arranged systems– Payment for preventive care– Other systems developed to contain costs

Health Maintenance Organization

• Provide preventive measures and dictate where individual can receive care

• Permission must be gained to see someone outside of the plan (except in emergencies)

• HMO will pay 100% of costs if care rendered within the HMO plan providers

• ATC’s must have working knowledge of HMO limits and restrictions

Preferred Providers Organization

• Provide discount health care and also limit where treatment can be obtained

• Must be aware of what facilities are approved for the program in order have cost completely covered

• May include additional types of coverage (physical therapy)

• PPO pay on a fee-for-service basis

Point of Service

• Combination of HMO and PPO

• Based on HMO model but allows for care outside of the plan

• Flexibility is allowed for certain conditions and circumstances

Indemnity Plan

• Most traditional form of billing for health care

• Fee-for-service plan that allows insured party to seek care without restrictions

• Provider charges patient or third-party payer

• Charges are set on fee schedule

Capitation

• Form of reimbursement where members make standard payment monthly regardless of services rendered

• Managed care plans utilize this practice

Third-Party Reimbursement for Athletic Trainers

• Rare for ATC’s unless they are licensed PT’s

• Concern for ATC’s working in for-profit private clinics

• State licensing and credentialing will aid in this process but will remain concern for clinical ATC’s

• Reimbursement Advisory Group (NATA) responsible for assessing managed care and involvement of ATC’s

• Athletic Training Outcome Assessment project (NATA) developed to present results of 3 year study

• Study focussed on functional outcomes, perceptions of care, physical, social, mental well-being, time lost due to injury and satisfaction of care and treatment

• Third-party payers require outcomes research when evaluating a contract

Insurance Billing

• Must file claims immediately and correctly

• To facilitate, collect insurance information at the start of the academic year

• Letters should be sent home to fully explain the coverage available and necessary procedures

• Standard forms are the norm, but accurate and thorough completion is critical

• ATC in clinical setting must be aware of third-party billing procedures

• May need to request approval from insurance companies for treatments to be rendered

• Billing must be in accordance with Current Procedural Terminology set by AMA

• APTA has also submitted billing codes appropriate for the industry