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Care and Prevention Chapter 3

Legal Concerns and Insurance Issues

LEGAL CONCERNS AND INSURANCE ISSUES

Liability is the state of being responsible for harm one causes to another person.

The Standard of Reasonable Care

Negligence is the failure to use ordinary or reasonable care - care that persons would normally exercise to avoid injury to themselves or to others under similar circumstances. The standard of reasonable care assumes that an individual is neither exceptionally skillful nor extraordinarily cautious, but is a person of reasonable and ordinary prudence. Displaying commonsense

Torts are legal wrongs committed against the person or property of another. Such wrong may emanate from an act of omission, wherein the individual fails to perform a legal duty, or from an act of commission, wherein he or she commits an act that is not legally his or hers to perform.

Duty is responsibility to a particular group

Statute of Limitation

A statute of limitation sets a specific length of time that individuals may sue for damages from negligence. The length of time to being suit varies from state to state, but in general plaintiffs have between one to three years to file suit for negligence. Some states permit an injured minor to file suit up to three years after the minor reaches the age of eighteen.

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 parents or guardian or can be implied from the conduct of an athlete under the circumstances of his or her participation in an activity. Assumption of risk may be asserted as a defense to a negligence suit brought by an injured athlete.

Reducing the Risk of Litigation
The coach and athletic trainer can significantly decrease the risk of litigation by paying attention to several key points.
The coach should follow these guidelines:
1. Warn athletes of the potential dangers inherent in their sports.
2. Supervise regularly and attentively.
3. Properly prepare and condition athletes.
4. Properly instruct athletes in the skills of their sports.
5. Ensure that proper and safe equipment, and facilities are used by athletes at all times.

The athletic trainer should do as follows: (these are a few examples from page 65)
1. Work to establish good personal relationships with athletes, parents, and coworkers.
2. Develop and carefully follow an emergency plan.
3. Obtain, from athletes and from parents or guardians when minors are involved, written consent for providing health care.
4. Maintain confidentiality of medical records.
5. Not use or permit the presence of faulty or hazardous equipment.
6. Not permit injured players to participate unless cleared by the team physician. Players suffering a head injury should not be permitted to reenter the game. In some states a player who has suffered a concussion may not continue in the sport for the balance of the season.
7. Use common sense in making decisions about the athletes health and safety.

Product Liability

Manufacturers of athletic equipment have a duty to design and produce equipment that will not cause injury as long as it is used as intended. An express warranty is the manufacturers written statement that a product is safe. Warning labels on football helmets inform the player of possible dangers inherent in using the product. Athletes must read and sign a form indicating that they have read and understand the warning. The National Operating Committee on Standards of Athletic Equipment (NOCSAE) established minimum standards for equipment that must be met to ensure its safety.

WARNING: Do not strike an opponent with any part of this helmet or face mask. This is a violation of football rules and may cause you to suffer severe brain or neck injury, including paralysis or death. Severe brain or neck injury may also occur accidentally while playing football. NO HELMET CAN PREVENT ALL SUCH INJURIES. USE THIS HELMET AT YOUR OWN RISK.

Malpractice- liability where there is an unfavorable outcome of patient-athletic trainer interaction.

Causal Relationship- Negligent action must have caused the injury

Demonstration of Injury- Must show that injury was directly related to negligent action.

DEFENSE AGAINST LAW SUIT
1. Assumption of risk- a person knows that, in what they are doing there is a risk of injury.

2. Contributory Negligence- amount to which the injured party contributed to their injury.

3. Comparative Negligence- compares one person's negligence to the injured party's negligence.

4. Act of God- refers to natural disasters

5. Informed Consent- Athlete must be told about risk of injury.

6. Shared Responsibility- Athlete has certain responsibilities to themselves.

7. Good Samaritan Laws- states those who come to the aid of an injured person, and act within their scope of practice are immune from actions or damages. (Does not cover negligent conduct)

8. Waivers- a legal contract in which the signatories give up the right to sue for damages in exchange for services performed on them.

9. Statute of Limitations- Set the period of time that a person may sue for damages.


TIPS TO KEEP FROM BEING SUED:

1. Keep accurate records (on file for 8 years)
2. Document treatment, rehab, and evaluation/diagnosis of injury
3. Know History of athletes
4. Maintain supervision
5. Use caution and document OTC medication
6. Work closely with team physician
7. Only trainer or doctor can clear athlete to play- don't be pressured by coaches!
8. Develop and utilize proper policies and procedures.

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