Take 10 Lesson #2. What Is Negligence?

Transcription

1 Take 10 Lesson #2 What Is Negligence? JoAnn Eickhoff-Shemek, Ph.D., FACSM, FAWHP President and Founder The Fitness Law and Risk Management Academy, LLC Disclaimer: The educational information in this PowerPoint presentation should not be construed to be the provision of legal advice. For individual legal advice, it is necessary to obtain legal counsel in the jurisdiction where such appropriate advice can provided.

2 Topics Negligence defined Four elements of negligence Courts determine duty The professional standard of care Legal liability exposures Negligence cases Scope of practice

3 What is Negligence? Definition Negligence is failing to do something that a reasonable, prudent professional would have done or doing something that a reasonable, prudent professional would not have done, given the same or similar circumstances (1). Negligence is careless conduct by either OMISSION or COMMISSION Failure to Perform Improper Performance

4 Fault Basis of Tort Liability (1)

5 Four Elements of Negligence: Plaintiff has the Burden of Proof (1) Damages plaintiff seeks monetary (compensatory) damages: Economic (e.g., medical expenses, lost wages) Non-economic (e.g., pain and suffering)

6 Courts Determine Duty or the Standard of Care The Duty (or Standard of Care) that Fitness/Wellness Professionals Owe to the Plaintiff will Likely Be The: Professional Standard of Care Duty is determined by professional practices given the situation, e.g., safety standards/guidelines published by professional and independent organizations and/or expert testimony. Numerous safety standards/guidelines exist in the U.S. that are published by various professional and independent organizations. Examples: Professional Organizations ACSM s Health/Fitness Facility Standards and Guidelines ACSM s Guidelines for Exercise Testing and Prescription (ACSM s GETP) Independent Organizations American Society for Testing and Materials (ASTM) -- Standard Specification for Motorized Treadmills Manufacturers of exercise equipment -- publish Owner s Manuals for each piece of equipment

7 Potential Legal Impact of Published Safety Standards of Practice Published Safety Standards of Practice Introduced in Court via Expert Testimony Provide Evidence in Determining Duty Defendant s Conduct Inconsistent with Standards of Practice (Breach of Duty) Defendant s Conduct Consistent with Standards of Practice (No Breach of Duty) Note: The plaintiff has to prove by the preponderance of the evidence (51% or more likely than not ) that the breach of duty caused the harm (civil law vs. criminal law where the proof must be beyond a reasonable doubt or 100%).

8 According to van der Smissen (2), the Professional Standard is measured against the standard of care of a qualified professional for that situation. For that situation is determined by the following three factors: Nature of the activity the professional must be aware of the skills and abilities the participant needs to participate safely in the activity Type of participants the professional must be aware of individual factors of the participant,. e.g., health conditions that impose increased risks and how to minimize those risks Environmental conditions the professional must be aware of any conditions, e.g., heat, humidity, slippery floor surfaces, and how to minimize those risks Note: Experts witnesses educate the court as to what duty (or standard of care) was given the situation and often refer to these 3 factors

9 Legal Liability Exposures 7 Areas 6. Facility Issues 5. Exercise Equipment 1.Employment Issues 7. Emergency Action Plan 4. Instruction & Supervision 2. Pre-Activity Health Screening 3. Health/Fitness Assessment & Prescription Legal Liability Exposures: Situations that create the probability of an injury to occur (e.g., improper instruction and/or supervision, failure to maintain exercise equipment) or increase the severity of a injury when one occurs (e.g., failure to carry out proper emergency procedures)

10 Negligence Cases Please refer to U.S. Negligence Lawsuits handout available at under Free Resources The 21 cases cover liability exposures in all 7 areas. Most negligence cases are settled out of court. For an example, see the Capati case on page 3 and sometimes a settlement is made even after a court s ruling on the damages like in Barnhard (page 7). Note the original amount of damages in these cases ($320M in Capati and $49.5M in Barnhard). Liability insurance policies generally do NOT provide this much coverage, and therefore can be devastating for any business which may cause them to close their business. Review how the expert witness testimony in Stelluti and Santana (page 6) and Xu (page 8) helped to educate the court as to what the professional standard of care was for that situation.

11 Negligence Cases Cont. Note how the court in Covenant (page 2) utilized published standards of practice (ACSM s GETP) to determine the standard of care. Note how almost all of the cases dealt with the inappropriate conduct (negligent acts both omission and commission) of fitness staff members and managers. The most prevalent legal liability exposure in any fitness facility is the lack of competence of the fitness staff and managers They need to first be qualified (possess the necessary credentials) but most importantly from a legal perspective, they MUST BE COMPETENT their actions or conduct will be what is judged by expert witnesses. Quality education and training of all fitness professionals is absolutely essential from a risk management perspective

12 SCOPE OF PRACTICE Scope of Practice: Professionals must practice within the boundaries of their education, training, experience, and certification and/or licensure. The failure to do so can result in civil claims such as negligence (if harm occurs) as well as criminal charges (violation of a state statute) such as practicing medicine (or other allied health profession such as dietetics) without a license. Do not prescribe, diagnose, or treat only licensed health care professionals can. Note the potential scope of practice issues in the following cases from the handout: U.S. Negligence Lawsuits: Rostai (p. 2) trainer did not have the knowledge and skills to train someone with cardiac risk factors Capati (p. 3) trainer prescribed supplements not knowing the lethal consequences when combined with a prescribed medication Makris (p. 3) the trainer diagnosed and treated the pain of the client Proffitt (p. 5) the trainer did not have the knowledge and skills to train a sedentary individual Fitness trainers who train clients with medical conditions and risk factors should possess advanced knowledge and skills to do so. Otherwise they may be training outside their scope of practice.

13 THANK YOU! To obtain a more in-depth understanding and application of legal and risk management concepts, register for one of the educational courses at: References: 1. Eickhoff-Shemek, JM, Herbert, DL & Connaughton, DP. (2009). Risk Management for Health/Fitness Professionals: Legal Issues and Strategies. Baltimore, Maryland: Lippincott Williams & Wilkins. 2. van der Smissen, B. (2007). Elements of Negligence, In: Cotton, DJ & Wolohan, JT. eds. Law for Recreation and Sport Managers, 4 th ed. Dubuque, Iowa: Kendall/Hunt Publishing Company. Note: References for the legal cases are listed in the handout: U.S. Negligence Lawsuits.