Chapter 3: Legal Concerns and Insurance Issues

• To prove negligence, plaintiff must prove that the defendant is guilty of 5 components:

1. Conduct 2. Existence of Duty 3. Breach of Duty 4. Causation 5. Damage

• NATA Code of Ethics

1. Members shall respect the rights, welfare, and dignity of all individuals 2. Members shall comply with laws & regulations governing athletic training 3. Maintain & promote high standards in the provision of services 4. Do not engage in any form of conduct that constitutes a conflict of interest or that adversely reflects on the profession

Risk Reduction Strategies

1. Preparation for activity a. Administer PPEs b. Monitor fitness levels c. Assess activity areas d. Monitor environmental conditions 2. Conduct of the activity a. Maintain equipment b. Use proper instructional techniques c. Provide adequate work-rest intervals 3. Injury management a. Have a physician supervise all medical aspects of program b. Evaluate and treat injuries correctly and promptly c. Supervise student athletic trainers 4. Records management a. Document physician orders b. Document the treatment plan c. Document the treatment record d. Document the patient's progress

Formalism

: most likely to be followed by ATs who see a clear professional duty that they believe should be implemented universally

• Profession

a commitment to certain characteristics that set professionals apart from nonprofessional groups

• Certification

a form of title protection, established by state law or sponsored by professional associations, designed to ensure that practitioners have essential knowledge and skills sufficient to protect the public • NATABOC is the recognized certification agency for ensuring that ATs have basic knowledge and skills to carry out their duties as defined by the Role Delineation Study • State certification usually only protects an athletic trainer's title, not the specific tasks and he/she performs o Noncertified persons could not call themselves athletic trainers, but they could perform the duties of a AT o Kentucky, Louisiana, New York, Pennsylvania, South Carolina, Virginia

• Tort

a legal wrong, other than breach of contract, for which a remedy will be provided, usually in the form of monetary damages o 3 types: intentional tort, negligent tort, and strict liability tort

• Exemption

a legislative mechanism used to release members of one profession from the liability of violating another profession's practice act (typical- physical therapy, physician assistant, medical & masseuse practice acts) o Least restrictive form of professional regulation; ATs may still be required to meet certain standards o Colorado, Hawaii, Utah, Wyoming

• The Athletic Trainer as a Primary Party-Primary party

a person directly involved as a participant in an activity • Most menacing ethical issues will be those in which the AT is a primary party to the ethical concern o Behaving in an ethically questionable manner or being the victim of an unethical act

• Code of ethics

a systematized set of standards or principles that defines ethical behavior appropriate for a profession; moral values determine the standards and principles o Provides a guide to appropriate conduct for members o Provides a reference by which to judge members whose conduct comes into question o Provides assurance and protection to the public served by members of the profession

Primary Coverage

a type of health/medical/accident insurance that beings to pay for covered expenses immediately after a deductible has been paid

5. Damage

a. An actual adverse outcome exists i. Physical, mental, lost wages or tangible benefits, pain and suffering, many others... ii. Emotional distress, loss of consortium (injury to the marital relationship)

2. Existence of Duty

a. At educational institutions: duty to provide services to athletes actively engaged in the institution's athletic programs i. Duty to intramural sports participants depends on contract b. Provide or obtain reasonable medical assistance i. ASAP under circumstances in order to avoid aggravation of injury 1. Effective emergency action plan a. Necessary first-aid supplies b. Communications with ambulance services c. Maintain confidentiality of medical records d. Provide adequate and proper supervision and instruction (use established protocols) e. Provide safe facilities and equipment f. Fully disclose information about the individual's medical condition to the individual i. Long term consequences g. Abandonment: desertion of a patient-practitioner relationship by the health care provider without the consent of the patient i. Only okay to discontinue services when: 1. Practitioner provides adequate time to find alternative services 2. Jointly terminate relationship (full recovery) 3. Patient voluntarily terminates treatment (documentation, AT tells consequences) ii. If AT leaves patient in the care of another practitioner for vacation, for example, can be charged for negligence (get patient agreement to see another practitioner)

1. Conduct

a. Must prove that AT did something that links him to case (either by omission or commission) b. Nonactions (thoughts, attitudes, or intentions) cannot render AT negligent

3. Breach of Duty

a. Must show the athletic trainer breached a duty owed to patient b. Whether or not athletic trainer exercised the standard of care that other reasonably prudent ATs would have exercised under circumstances i. Compare actions to those of other athletic trainers in: 1. The same locality 2. Similar communities 3. The same or similar circumstances ii. The standard of care the AT is held to depends on whether the state has credentialed the profession (otherwise may be held to standard of care of other regulated professionals)

4. Causation

a. Plaintiff must prove that the breach was the legal cause of the injury (or made injury worse) b. Two types of cause: i. Actual cause: the degree to which a health care practitioner's actions are associated with the adverse outcomes of a patient's care 1. Coaches, physicians, or institutions may be named as codefendants 2. Severable liability: several people contributed to harm and percentage of harm is distributed among people involved 3. Joint liability: several people contributed to different levels, all pay the same ii. Proximate (legal) cause: the degree to which the harm caused by a health care practitioner was foreseeable (projectability of the likely outcome of an act) 1. ATs are not penalized for results that were improbable or unlikely

• Riders

additions to standard insurance policy that provide coverage for conditions that are not normally covered

• Standard of reasonable care

assumes that an individual is neither exceptionally skillful nor extraordinarily cautious, but is a person of reasonable and ordinary prudence

• Copayment

capped contribution defined in the policy and paid by an insured person each time a medical service is accessed. It must be paid before any policy benefit is payable by an insurance company.

Utilitarianism

choosing a course of action that benefits the greatest number of people

• ICD-9-CM (International Classification of Diseases)

coding system applied to illnesses, injuries, and other medical conditions to standardize the language associated with third-party reimbursement

• CPT (Current Procedural Terminology)

coding system applied to specific medical procedures to standardize the language associated with third-party reimbursement

• Policy

contract between an insurance company and an individual or organization

• Medical insurance

contract between policyholder and insurance company to reimburse a percentage of the cost of the policyholder's bills (usually after policyholder has paid a deductible

• Fraud

criminal misrepresentation for the purpose of financial gain

• Errors and omissions liability insurance

designed to cover school employees, officers, and the district against suits claiming malpractice, wrongful actions, errors and omissions, and acts of negligence

• Negligence

failure to act as a reasonably prudent athletic trainer would act under the circumstances

Licensure

form of state credentialing, established by statute and intended to protect the public, that regulates the practice of at rade or profession by specifying who may practice and what duties they may perform • Most restrictive form of governmental credentialing • Intent: protect the public by limiting the practice of AT to those who have met requirements of a licensing board established under the law • Name protection: unlicensed individuals are not allowed to call themselves athletic trainers • Service protection: unlicensed individuals are not allowed to perform tasks reserved for ATs under law • Licensure usually requires a specific educational background and passing a licensing examination ( • Boards decide who may practice; set fees required for license applications and renewals

• CMS 1500

form that private-practice clinics should use when filing a claim; originally developed for Medicare

• Malpractice

generating conduct associated with the adverse outcome of patient treatment

• Medicare

government-sponsored program for elderly

• CHAMPUS

government-sponsored program for members of armed forces & their dependents

• Medicaid

government-sponsored program for needy

Forbidden Knowledge

information about a situation that an athletic trainer is forbidden to act on • Do not agree to terms such as "if I tell you this, you must promise not to share it with anyone" o Insist that the patient offering it trust her to act in the patient's best interests • If patient is unable to accept terms, refer him/her and strongly suggest that he/she follow through with it o Can offer to use information in an anonymous fashion • Offering of forbidden knowledge is a common avenue by which an AT is at risk for being manipulated (shrewdly or deviously influencing or controlling another person or a situation) o Act on information cautiously; possibly delay action until info can be verified

• Assumption of risk

injured plaintiff understood the risk of an activity and freely chose to undertake the activity regardless of the hazards associated with it o Two conditions must be met: 1. Athlete must "fully appreciate" the type and magnitude of risk involved in participating in activity 2. Athlete must "knowingly, voluntarily, and unequivocally" choose to participate in the face of risk

Self-Insurance

institutions with this type are speculating that the amount they pay out for medical expenses will be less than the amount they would pay for insurance premiums

• UB-92/CMS 1450

insurance claim form that hospitals should use

• Disability insurance

insurance designed to protect an athlete against future loss of earnings because of a disabling injury or sickness

• Catastrophic insurance

insurance designed to provide lifelong medical, rehabilitation, and disability benefits for the victims of a devastating injury o Usually takes effect after the first $90,000 in medical bills has been reached o Costs for catastrophic insurance is based on: • Number of sports offered by institution • Number of hazardous sports offered by institution

Athletic accident insurance

insurance policy intended to reimburse medical vendors for the expenses associated with acute athletic accidents

Secondary Coverage

insurance that begins to pay for covered expenses only after all other sources of insurance coverage have been exhausted; also known as excess insurance o Most common choice for educational institutions o Institution lowers cost by sharing risk of injuries to other potential payers (60% lower than primary) o Develops a sense of shared responsibility for safety in an athletic program • Parents are even more interested in safety of children when they have a financial interest o Encourages athletic administrators to find ways to reduce and control medical costs o Claims processing takes more time & effort (communication with parents and their insurance carriers) o Requires more communication and understanding about shared responsibility of paying medical costs

• Premium

invoiced cost of an insurance policy

Ethical egoism

make decisions that result in greatest benefit to yourself

• Health insurance

more comprehensive; reimburses cost of preventative as well as corrective medical care

Reducing the Risk of Litigation

o Build relationships o Insist on a written contract for work o Obtain informed consent • Warn athletes of dangers o Provide physical examinations • Make sure content and frequency meet standards o Know the profession and its standards o Participate in continuing education o Make a documented attempt to avoid injury by removing or modifying potential hazards o Establish policies o Document activities o Maintain confidentiality o Provide proper instruction o Supervise your staff o Recognize your qualifications / limitations

• Ways to resolve claims denied due to experimental treatment or UCR causes:

o Find out exact reason for which the claim was denied o Obtain a statement from provider explaining why treatment was implemented & justifying the fee o Correspond with the employer who provides the self-insurance fund (has authority to reverse denial) o Provide evidence from clinical studies to support your claim that tx should not be viewed as experimental o Try to convince provider to waive portion of fee above the UCR amount o Contact state insurance commissioner and request assistance in challenging denial

• Preliminary steps to make filing easier:

o Gather insurance information for every student-athlete o Communicate by letter with the parents of all student-athletes • Inform them of the limits of the schools' accident insurance policy and the steps they will need to take to process an insurance claim • Secondary coverage - explain that parents must submit all medical bills to their insurance company before submitting the balance to the school o Create a file for each student o Enter each claim on a insurance claim registry form - worksheet that aids in tracking the progress of an insurance claim through the entire process (date filed, name, insurance company, amount due, amount paid, date paid)

• Types of negligence

o Nonfeasance/act of omission: when an individual fails to perform a legal duty o Malfeasance/act of commission: when an individual commits an act that is not legally his to perform o Misfeasance: when an individual improperly does something they have the legal right to do

• Deductible

portion of any claim that is not covered by the insurance provider; the amount of expenses that must be paid out of pocket before an insurer will cover any expenses

• Good Samaritan law

provides limited protection against legal liability to any person who voluntarily chooses to provide first aid

• Statute of limitation

sets a specific length of time that individuals may sue for damages from negligence o In general, plaintiffs have 1-3 years to apply for negligence o Some states allow an injured minor to file suit up to 3 years after the minor reaches age 18

• Point-of-service plan (POS)

similar to PPOs, except that primary care physicians are assigned to patients to coordinate their care

• Exclusions

situations or circumstances specifically not covered by an insurance policy

• Sovereign immunity

states that neither the government nor any individual who is employed by the government can be held liable for negligence

Explanation of Benefits form (EOB)

summary prepared by an insurance company and set to a policyholder that documents how the insurance policy covered the charges associated with a particular claim

• Electronic data interchange (EDI)

system whereby insurance claims can be submitted electronically; also known as paperless claims system

• Usual, customary, & reasonable (UCR)

the charge consistent with what other medical vendors would assess o Factors that determine the amount of money companies will pay: • usual fee for service charged by each health care provider • customary fee for geographic area (the lowest of either average fee or 90th percentile fee, the fee below which 90% of all other medical vendors charge for a service) • reasonable fee (lower of either usual or customary fee)

• Comparative negligence

the degree to which a plaintiff contributed to the harm caused by a defendant o Examples: failing to follow instructions, failing to perform rehabilitation o Court determines the degree (%) to which the AT and plaintiff contributed to the harm • Plaintiff recovers the percentage of how much the defendant was to blame for negligence • In most states, patient can collect damages only if comparative negligence is <50% of total

THIRD-PARTY REIMBURSEMENT

the process by which medical vendors receive reimbursement from insurance companies for services provided to policyholders

• Ethics

the rules, standards, and principles that dictate right conduct among members of a society or profession; based on moral values (represent norms of social interaction and have been influenced by religion)

• Liability

the state of being legally responsible for the harm one causes another person

The Athletic Trainer as a Third Party- Third party

to be affected by, but not directly involved in, a situation. Professionals who simply have knowledge of an unethical act can be affected by it, because they have a professional responsibility to act • As a third party participant, the AT can more appropriately manage a solution to the situation • Conflicts may occur between the professional's responsibility to maintain confidentiality, her responsibility to protect the patient from harm, her responsibility to protect others from harm, and other loyalties she might have that affect the patient

• Preferred provider organizations (PPOs)

type of insurance plan that provides financial incentives to encourage policyholders to use medical vendors approved by the company o Compared to HMOs: allow a greater choice of medical vendor, pay vendors on a fee-for-service basis o Patients who see vendors outside the preferred network will pay a higher percentage of costs o Variant of PPO - exclusive provider organization (EPO): medical services are reimbursed only if patient uses contracted providers

• Health maintenance organizations (HMOs)

type of insurance plan that requires policyholders to use only those medical vendors approved by the company. All medical services are coordinated by a primary care physician, who acts as a gatekeeper to specialty services o Determination of fees is usually accomplished by a capitation system (vendors received a fixed amount per patient) o Some HMOs provide services at medical facilities, whereas others provide care through a network of individual medical practitioners: • Individual practice association (IPA): managed-care model whereby an HMO provides health care services through a network of individual medical practitioners. Care is provided in a physician's office as opposed to a large, multifunctional medical center

Registration

type of state credentialing that requires qualified members of a profession to register with the state in order to practice (some allow a grace period during which AT may practice without being registered) o Prohibits unregistered persons from practicing, it becomes a form of title protection for the athletic trainer o States that require registration may or may not require screening devices (i.e. examinations) o Kansas, Minnesota, Missouri, Oregon

• Fee-for-service/indemnity plan

type of traditional medical insurance whereby patients are free to seek medical services from any provider; plan covers a portion of cost of covered procedures & patient is responsible for the balance

Breach of Confidentiality, Conflict of Interest, or Exploitation of a Patient

• Case of minors - athletic trainer should contact parents or guardians, refer situation to appropriate authorities (especially when there are legal concerns), or intervene directly

Experimental treatments (therapies not yet proved effective)

• Companies define experimental in various ways: o List in the policy what they consider experimental procedures o List the criteria by which they will determine if a procedure is experimental (less exact, poor defense) o *Decide on a case-by-case basis (can be frustrating for patients and health care providers)

APPROACHES TO ETHICAL DECISION MAKING

• Ethical egoism • Utilitarianism • Formalism

Knowledge of Illegal Activities

• Legal authorities might be aware of activities and seek information from the athletic trainer • Legal authorities may not be aware of activities • Athletic trainers with knowledge of illegal activities should seek legal counsel to protect their own status (conflicts of issues of confidentiality, responsibility to client, privileged communication status, legal reporting requirements, and others)

Knowledge of High Risk Behaviors

• Patient may be at risk due to his/her own behaviors, or he/she may be putting others at risk • Ethical responsibility: make sure individual is aware of associated risks of his/her behaviors, assist person in finding alternative to high-risk behaviors • When behavior puts others at risk, AT has responsibility to intervene (at least warn those being put at risk)

Types of Athletic Insurance

• Self-Insurance • Primary Coverage • Secondary Coverage

Knowledge of Conflicting Interests

• Self-determination: free will to judge for oneself, to determine one's own course of action, and to manage one's own affairs • Seek permission to take action or disclose information • Bring involved parties together to develop a mutually acceptable solution to problem o Allows each party to become familiar with perspective of other party

Exploitation

• Use of another person for selfish purposes o Bribing of athletes o Manipulating athlete to play when injured o Selling of items (legal/illegal) to athletes for financial gain

Breach of Confidentiality

• Violation of a commitment to privacy and protection of information or communications • Exceptions to the rule of confidentiality: o Reason: the basis or explanation for an action; excuse: a reason that is considered justifiable o When there is a clear and imminent danger to the client o When there is a clear and imminent danger to the other person o When legal requirements demand that confidential information be released • Difficult to maintain confidentiality because: o Confidential information might be personal, private, and sensitive (handle carefully!) o Many people are usually involve dint he care of an athlete o High profile of athletes and of the athlete industry in our society

Conflict of Interest

• When the interests of one individual or group are in competition with those of another individual or group • What are some examples of conflict of interest for ATs? o Discussing private information with another party • Patient's best interests vs. your job - breach of confidentiality o ATC receiving financial gain to utilize a particular product o Allocation of resources for head/supervising ATC • What can the AT do to avoid breach of confidentiality and conflict of interest situations? o Refer the athlete to a counselor • Preferably not affiliated with the institution or team