legal liability and insurance

warnings with product liability

Warning labels placed on football helmets inform the player of possible dangers inherent in using the product. Athletes must read and sign a form indicaling th.at they have read and understand the warning. Any modifications or alterations to equipment such as drilling a hole, adding a strap, etc., will nullily the manufacturers' liability should an injury occur when a person is wearing that equipment. The National Operating Committee on Standards for Athletic Equip mcm (NOCSAE) establishes minimum standards for equipment that must be met to ensure its safety.

When is negligence alleged?

When an individual is sued by an athlete the complaint typically is for the tort of negligence. Negligence is alleged when an individual (1) does something that a reasonably prudent person would not do; or (2) fails to do something that a reasonably prudent person would do under circumstances similar to those shown by the evidence.

liability

being legally responsible for the harm one causes another person

negligence

failure to use ordinary or reasonable care-care that persons would normally exercise to avoid injury to themselves or to others under sin

insurance billing

it is essential that insurance claims be filed immediately and correctly. The individual or administrator overseeing the athletic health care program working in an educational setting can facilitate this process by collecting insurance information on every athlete at the beginning of the year.

torts

legal wrongs committed against the person or property of another. All persons are expected to conduct themselves without I injuring others. When they do so, either intentionally or negligence, they can be required by a court to pay money to the injured party ("damages") so that, ultimately, they will suffer the pain caused by their actions. A tort also serves as a deterrent by sending a message to the community as to what is unacceptable conduct

misfeasance

wherein an individual improperly docs something that he or she has the legal right to do. In a case of misfeasance, an individual incorrectly administers a first-aid procedure he or she has been trained to perform

health maintenance organizations

(HMOs) provide preventive measures and limit where the individual can receive care. With the exception of an emergency, permission must be obtained before the individual can go to another provider. HMOs generally pay 100% of medical costs as long as care is rendered at an HMO facility. Many supplemental policies will not cover medical costs that would normally be paid by the general policy. Therefore an athlete treated outside the HMO may be eligible for any insurance benefits. Many HMOs determine Ices using a capitation system that limits the amount that is reimbursed for a specific service.

nonfeasance

(also referred to as an act of omission), wherein the individual fails to perform a legal duty. In the case of nonfeasance, an individual may fail to refer a seriously injured athlete for the proper medical attention

malfeasance

(also referred to as an act of commission), wherein he or she commits an act that is not legally his or hers to perform. In the case of malfeasance, an individual may perform a medical treatment not within his or her legal province and from which serious medical complications develop.

importance of liability protection

A great deal of care must be taken in following policies and procedures, to reduce the risk of being sued by an athlete and being found liable for negligence. It is important to reemphasize that it is essential for everyone to know the legal limitations of his or her responsibilities in providing athletic health care as dictated by the laws and statutes in the specific state where that individual is employed. Anyone providing any level of health care to an injured athlete must know exactly what his or her limitations are, to avoid overstepping boundaries and risking violation of the regulatory practice acts of various health care groups such as a physical therapists and athletic trainers.

insurance billing: school

A letter should also be drafted to the parents of the athlete, explaining the limits of the school insurance policy and what the parents must do to file a claim if injury docs occur. Schools that have secondary policies should stress to the parents that they must submit all bills to their insurance company before submitting the remainder to the school. Most schools or colleges will pay a claim with their insurance company that will pay for services provided by individual health care professionals.

statute of limitations

A statute of limitations sets a specific length of time that individuals may sue for damages from negligence. The length of time to bring suit varies from state to state, but in general, plaintiffs have between 1 and 3 years to file suit for negligence.

general health insurance

All athletes should have a general health insurance policy as their primary policy that covers illness, hospitalization, and emergency carc. Most institutions offer secondary insurance coverage that pays the athlete's remaining medical bills once the athlete's personal insurance company has made its payment. Secondary insurance always inducts a deductible that will not be covered by the plan.

professional liability insurance

All personnel should carry professional liability insurance and must dearly understand the limits of coverage. Liability insurance typically covers negligence in a civil case. If a criminal complaint is also filed, liability insurance will not cover the individual. Policy, errors, and omissions liability insurance as evolved to offset the shotgun mentality and to cover what is not covered by a general liability. This insurance is designed to cover school employees, officers, and the district against suits claiming malpractice, wrongful actions, errors and omissions, and acts of negligence.

catastrophic injuries insurance

Although catastrophic injuries in sports participation are relatively uncommon, if they do occur, the consequences to the athlete, family, institution, and society can be staggering. In the past, when available funds had been completely depleted, the family was forced to seek funding elsewhere, usually, through a lawsuit.

assumption of risk

An athlete assumes the risk of participating in an activity when he or she knows of and understands the dangers of that activity. and voluntarily chooses to be exposed to those dangers. An assumption of risk can be expressed in the form of a waiver signed by an athlete or his or her parents or guardian, or implied from the conduct of an athlete under the circumstances of his or her participation in an activity.

express warranty

An express warranty is the manufacturer's written guarantee that a product is safe.

assertion of assumption of risk

Assumption of risk may be asserted as a defense to a negligence suit brought by an injured athlete. It can be proven that an athlete assumed the risk by producing the document signed by the athlete or his or her parents or guardian, or showing that the athlete knew the risk of the activity, understood, and voluntarily accepted those risks.

assumption of risk with minors

Assumption of risk, however, is subject to many and varied interpretations by courts, especially when a minor is involved, because he or she is not considered able to render a mature judgment about the risks inherent in the situation. Although athletes participating in a sports program are considered to assume a normal risk. This in no way excuses those in diarge from exercising reasonable care and prudence in the conduct of such activities or from foreseeing and taking precautionary measures against accident-provoking circumstances.

catastrophic injuries insurance requirements and limits

Benefits begin when expenses have reached $75,000 and are then extended for a lifetime. At the secondary school level, a program is offered to districts by the National Federation of State High School Associations (NFSHSA). This plan provides medical, rehabilitation, and transportation costs in excess of $10,000 not covered by other insurance benefits. Costs for catastrophic insurance are based on the number of sports and the number of hazardous sports offered by the institution. As indicated, insurance that covers the athlete's health and safety can be very complex. Administrators must be concerned that every athlete is adequately covered by a good, reliable insurance company. Because of the intricacies and time involved with filing claims and follow-up communications with parents, doctors, and vendors, a staff person should be assigned this responsibility.

accident insurance

Besides general healthcare insurance, low-cost accident insurance is available to the student. This insurance covers accidents on school grounds while the student is in attendance. The purpose of this insurance is to protect the student against financial loss from medical and hospital bills, encourage an injured student to receive prompt medical care, encourage prompt reporting of injuries, and relieve a school of financial responsibility.

capitation

Capitation is a form of reimbursement used by managed care providers in which members make a standard payment each month regardless of how much service is rendered to the member by the provider. A therapist in a clinical setting usually treats a patient three times per week. In an athletic training setting an injured athlete may be treated in some instances twice a day every day of the week. Some high schools are going to a capitated health fee for students that goes toward providing athletic health care services.

personal liability insurance

Even when working in a program that has good liability coverage, each person within that program who works directly with students must have his or her own personal liability insurance.

assumption of risk with adults

In general. courts have been fairly consistent in upholding waivers and releases of liability for adults unless there is evidence of fraud, misrepresentation, or duress.

duties of health care providers

Individuals employed as health care providers by an institution have a duty to provide athletic health care to athletes at that institution. Once a person assumes the duty of caring for an athlete, that person has an obligation to make sure that appropriate care is given. It should be made dear that no one is obligated to provide first-aid care for an injured person outside their scope of employment. However, if they choose to become involved as a caregiver for an injured person, they are expected to provide reasonable care consistent with their level of training. The Good Samaritan law has been enacted in most states to provide limited protection against legal liability to an individual who voluntarily chooses to provide first aid, should something go wrong. As long as the first-aid provider docs not overstep the limits of his or her professional training, and exercises what would be considered reasonable care in the situation, the provider will not be held liable.

negligence assessment

It is expected that a person possessing more training in a given field or area will possess a correspondingly higher level of competence than, for example, a student. An individual will therefore be judged in terms of his or her performance in any situation in which legal liability may be assessed. It must be recognized that liability per se in all of its various aspects is not assessed at the same level nationally but varies in interpretation from state to state and from area to area. It is therefore good to know and to acquire the level of competence expected in a particular area. In essence, negligence is conduct that results in the creation of an unreasonable risk of harm to others.

medicaid

Medicaid is a health insurance program for people with low incomes and limited resources. Medicaid is funded by both the federal government and individual states, with the slates being responsible for administration of the program.

medical insurance

Medical insurance is a contract between an insurance company and a policyholder in which the insurance company agrees to reimburse a portion of the total medical bill after some deductible has been paid by the policyholder.

general liability insurance: schools

Most individual schools and school districts have general liability insurance to protect against damages that may arise from injuries occurring on school property. Liability insurance covers claims of negligence on the pan of individuals. Its major concern is whether supervision was reasonable and whether unreasonable risk of harm was perceived by the sports participation.

preferred provider organizations

Preferred provider organizations (PPOs) provide discount health care but also limit where a person can go for treatment of an illness. The coach and/or athletic trainer must be apprised in advance where the ill athlete should be sent. Athletes sent to a facility not on the approved list may be required to pay for care, but if they are sent to a preferred facility, all costs are paid. Added services such as physical therapy may be more easily obtained and at no cost or at a much lower cost than with other insurance policies. PPOs pay on a fee-for-service basis.

basis of product liability

Product liability claims can be based on negligence, strict liability, or bread, of warranty depending on the jurisdiction within which the claim is based. Many states have enacted comprehensive product liability statutes and these statutory provisions can be very diverse. There is no federal product liability law. Manufacturers of all types of athletic and fitness equipment have a duty to design and produce equipment that will not cause injury as long as it is used as intended. If the product is not used correctly by the consumer, the manufacturer cannot be held liable.

product liability

Product liability refers to the liability of any or all parties along the cha.in of manufacture of any product for damage caused by that product This includes the manufacturer of component parts, an assembling manufacturer, the wholesaler, and the retail store owner. Products containing inherent defects that cause harm to a consumer of the product, or someone to whom the product was loaned, given, etc., are the subjects of product liability suits

reimbursement

Reimbursement is the primary mechanism of payment for medical services in the United States. Health care professionals are reimbursed by the policyholder's insurance company for services performed. Medical insurance companies may provide group and individual coverage for employees and dependents. To cut payout costs, many insurance companies have begun to pay for preventive care (to reduce the need for hospitalization) and to limit where the individual can go for care. Managed care involves a prearranged system for delivering health care that is designed to control costs while continuing to provide quality care. A number of different healthcare systems have been developed to contain costs.

general health insurance: school

Some institutions offer insurance coverage in which all medical expenses are paid for by the athletic department. The institutions pay an extremely high premium for this type of coverage. Many athletes are covered under some type of family health insurance policy. However, the school must make certain that personal health insurance is arranged for or purchased by athletes not covered under family policies. A form letter directed 10 the parents of all athletes should be completed and returned to the institution to make certain that appropriate coverage is provided

indemnity plan

The indemnity plan, although not a type of managed care, is the most traditional form of billing for health care, in which the provider charges the patient or a third-party payer a fee for services provided. Charges are based on a set fee schedule.

importance of insurance

The major types of insurance that coaches should be familiar with are general health insurance, catastrophic insurance, accident insurance, and liability insurance, as well as insurance for errors and omissions. All sports health and safety personnel need to be adequately insured.

point of service plan

The point of service plan is a combination of HMO and PPO plans. It is based on an HMO structure, yet it allows members to go outside the HMO to obtain services. This flexibility is allowed only with certain conditions and under special circumstances.

accident insurance: school coverage limits and requirements

The school's general insurance may be limited; thus accident insurance for a specific activity such as sports may be needed to provide additional protection. This type of coverage is limited and does not require knowledge of fault, and the amount it pays is limited. For serious sports injuries requiring surgery and lengthy rehabilitation, accident insurance is usually not adequate. This inadequacy can put families with limited budgets into a real financial bind

the standard of reasonable care

The standard of reasonable care assumes that an individual is either exceptionally skillful nor extraordinarily cautious, but is a person of reasonable and ordinary prudence. Put another way, it is expected that an individual will bring a common sense approach to the situation at hand and will exercise due care in its handling. The standard of reasonable care requires that anyone providing health care must act according to the standard of care of an individual with similar educational background or training. An individual who has many years of experience, who is well educated in his or her field, and who is certified or licensed must act in accordance with those qualifications

statue of limitations time frame

The statute of limitations begins to run on a plaintiff's time to file a lawsuit for negligence from either the time of the negligent act or omission that gives rise to the suit, or the discovery of an injury caused by the negligent act or omission. Some states permit an injured minor to file suit up to 3 years after the minor reaches the age of eighteen. Therefore, an injured minor athlete's cause of action for negligence remains valid for many years after the negligent act or omission occurred or the discovery of an injury caused by the negligent act or omission.

a successful negligence suit

To be successful in a suit for negligence, an athlete must prove that an individual had a duty to exercise reasonable care, breached that duty by failing to use reasonable care, and that there is a reasonable connection between the failure to use reasonable care-care and the injury suffered by the athlete or that an individual's action made the injury worse. If an individual breaches a duty to exercise reasonable care, but there is no reasonable connection between the failure to use reasonable care and the injury suffered by the athlete, the athlete's suit for negligence will not succeed.

how do you establish negligence?

To establish negligence, an individual making the complaint must establish four things: (1) a duty of care existed between the person injured and the person responsible for that injury; (2) conduct of the defendant fell short of that duty of care; (3) the defendant caused the injury to occur; and (4) resultant damages -- personal, property, or punitive -- occurred.