Chapter 3: Legal Liability and Insurance. © 2010 McGraw-Hill Higher Education. All rights reserved....

Chapter 3: Legal Liability and Insurance

© 2010 McGraw-Hill Higher Education. All rights reserved.

Legal Concerns

Negligence suits involving coaches, athletic trainers, school officials and physicians have increased in frequency and amount of damages awarded

Liability Being legally responsible for the harm one causes

another person Must be certain you are aware of all rules and

regulations relative to healthcare in a given state

• 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

Standard of Reasonable Care

• LEGAL WRONGS COMMITTED AGAINST A PERSON (LIABILITY RESULTS)• MAY EMANATE FROM

– Nonfeasance • Fail to perform legal duty, i.e. fail to refer

– Malfeasance • Performs action that is not his/hers to legally perform, i.e. perform advanced treatment leading to complications

– Misfeasance• Improperly perform something the person has a legal right to do

Torts

• C A R E G I V E R D O E S S O M E T H I N G A R E A S O N A B LY P R U D E N T I N D I V I D U A L W O U L D N O T.

• C A R E G I V E R FA I L S T O D O S O M E T H I N G A R E A S O N A B LY P R U D E N T I N D I V I D U A L W O U L D N O T.

• AT H L E T I C T R A I N E R H A S A D U T Y T O P R O V I D E C O V E R A G E T O AT H L E T E S ( O B L I G AT I O N )

Negligence


Individual possessing higher level of training will possess higher level of competence

Once the individual assumes duty of caring for athlete that person has an obligation to provide appropriate care

Obligation to provide services vs. Scope of employment

Good Samaritan Law Provides limited protection against legal liability to one that

provides care should something go wrong

• SPECIF IC LENGTH OF T IME AN INDIV IDUAL CAN SUE FOR INJURY RESULT ING FROM NEGLIGENCE. • VARIES BY STATE BUT GENERALLY RANGES FROM ONE TO THREE YEARS• CLOCK BEGINS AT THE T IME THE NEGLIGENT ACT RESULTS IN SUIT OR FROM THE T IM E INJURY IS D ISCOVERED FOLLOWING NEGLIGENT ACT• M INORS GENERALLY HAVE AN EXTENSION

Statutes of Limitation

• ATHLETE IS MADE AWARE OF INHERENT R ISKS INVOLVED IN SPORT AND VOLUNTARILY DECIDES TO CONTINUE PARTIC IPATING• EXPRESSED IN WRITTEN WAIVER OR IMPLIED FROM CONDUCT OF ATHLETE ONCE PARTIC IPATION BEGINS• CAN BE USED AS DEFENSE AGAINST AN ATHLETE’S NEGLIGENCE SUIT

Assumption of Risk


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


Product Liability

Liability of any or all parties involved in manufactured product for damages caused by product Includes manufacturer of components, assemblers,

wholesaler, and retail store ownerProducts with inherent defects are subject to

liability suitsMay be based on negligence, strict liability or

breach of warranty fitness


Manufacturer of equipment has duty to design and produce equipment that will not cause injury

Express warranty Manufacturer’s written guarantee – product safety

Equipment warning labels Informs athlete of possible dangers inherent with product

use National Operating Committee on Standards for Athletic

Equipment (NOCSAE) Minimum standards for equipment to ensure safety


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 InsurancePolicy that covers illnesses, hospitalization and

emergency careSometimes offered through academic institutions for

students (athletics)Secondary insurance provided through institutions to

cover costs above primary insurance coverageSchools and universities must ensure that athletes

have primary insurance coverage (in place or arranged for)


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

Athletic trainers 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 PPOBased on HMO model but allows for care outside of

the planFlexibility is allowed for certain conditions and

circumstances


Indemnity Plan

Most traditional form of billing for health careFee-for-service plan that allows insured party to

seek care without restrictionsProvider charges patient or third-party payerCharges 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


Accident Insurance

Low cost plan to cover accident on school grounds to student

Protects student 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


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

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 athletic trainer away from other responsibilities

Additional staff may be necessary to deal with added responsibilities


Insurance to Protect the Professional

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

Will cover negligence in civil case – not criminal complaint


Insurance to Protect the Professional (continued)

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


Insurance Billing

Must file claims immediately and correctlyTo facilitate, collect insurance information at the start

of the academic yearLetters should be sent home to fully explain the

coverage available and necessary proceduresStandard forms are the norm, but accurate and

thorough completion is critical

Chapter 3: Legal Liability and Insurance. © 2010 McGraw-Hill Higher Education. All rights reserved....

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Transcript of Chapter 3: Legal Liability and Insurance. © 2010 McGraw-Hill Higher Education. All rights reserved....