Exercise Physiology, Negligence, and
Lawsuits
Tommy Boone
Professor and Chair
Director, Exercise Physiology Laboratories
The College of St. Scholastica
Duluth, MN 55811
“They say in exercise physiology
that in the beginning you are driven to do good, in the second year you
are pushed to your limits to keep up, and in the third and usually the
final year of Ph.D. study you begin to question what you have done.” –
William T. Boone, Jr.
Introduction
This article is not meant to be a guide
to the legal system or how it works. Instead, it explores various
underlying reasons behind exercise physiologists’ relatively poor understanding
of their work and legal implications. There are distinctive opportunities
for lawsuits against exercise physiologists. The central goal of
this article is bring attention to the variables that influence how exercise
physiologists act, particularly university teachers. There are significant
cross-disciplinary concerns as the exercise physiologist works with nurses
and physical therapists. Members from the latter professions are
more understanding of the legal issues. Again, this article is an
introduction and call for increased study in this area. There isn’t
any question that exercise physiology and law interact in diverse ways.
What is also clear is that students with an interest in exercise physiology
as professionals in diverse healthcare settings are seldom taught to follow
ethical rules of practice.
For many university exercise physiologists,
there are few ethical dilemmas. Ethical thinking and legal issues
are seldom discussed with colleagues. And, yet their students graduate
into jobs to which they are responsible, as employees, (perhaps, as a fitness
instructor) to their clients. The assumption is that the employee
is not out to harm a client. But, in spite of one’s best effort,
accidents do happen. What then? Who is responsible? What
kinds of conditions might result from a client filing a lawsuit against
the employee and his or her employer? Will the employer fire the
employee? Who will pay the damages? Legal professionals usually
assume that healthcare employees have some knowledge in how the legal system
works. This is not true in exercise physiology. For the obvious
reasons, it is logical to gain knowledge and respect about legal matters.
Both law and exercise physiology are designed
to anticipate and/or resolve problems. It is an obvious fact that
exercise physiologists have more to learn about how to protect themselves
while working to fulfill their personal and professional goals than lawyers
do. Today, lawyers know their job and, frequently, it requires them
to know what other professionals are held accountable to doing. The
problem, again, is the failure of exercise physiologists to study law and
how it resolves disputes. For example, it is the job of the lawyer
to figure out whether the employee failed to perform to a standard of care.
Lawyers hire other professionals to help them isolate the “problem” with
an employee who has been accused of doing something wrong. They understand
that everyone has the right to legal representation to defend against a
lawsuit. They also know that as long as employees perform in accordance
with published standards, their actions are not likely to be questioned.
However, when employees fail to measure up and when their actions result
in an injury to their clients, they will be judged against the standards
that are established within their profession.
The idea of “measuring up” is either poorly
understood or seldom taught in exercise physiology. The primary reason
is that exercise physiologists have not had a yardstick by which to define
the appropriateness of their actions. Guidelines per se are not necessarily
standards. This is the problem. Professionals, particularly
lawyers, are able to perform a careful analysis of the difference between
guidelines and standards, between discipline thinking and professional
behavior. They understand that thinking like a professional requires
careful study in professionalism. Every emerging profession, including
exercise physiology, must develop, publish, and hold members accountable
to standards of care. In this case, it could be working with a client
in strength and conditioning program, cardiac rehabilitation setting, or
other healthcare and athletic applications of exercise physiology to the
public sector. The rationale for advancing standards of practice
for the exercise physiologist is to ensure proper, consistent, and high-quality
exercise physiology care.
Board Certification
Becoming a board certified exercise physiologist
by joining the American Society of Exercise Physiologists (ASEP) and sitting
for the “Exercise Physiologist Certified” exam, exercise physiologists
hold themselves to a higher standard of practice than when they don’t belong
to ASEP. The EPC certification is linked to the professional title
(i.e., Exercise Physiologist) and the Standards of Professional Practice,
as defined by the ASEP organization, to regulate the practice of exercise
physiology. Hence, again, to think like an exercise physiologist
means thinking analytically and professionally. It means being able
to learn, think, and communicate like a professional. Not only do
other organizations have detailed judgments about professional practice,
but they teach and expect an understanding of the legal implications.
In this regard, the reasonably foreseeable thinking exercise physiologists
know that the answer to safe guarding members is to teach and honor existing
professional standards. It is logical therefore that exercise physiology
is fundamentally linked to a central premise of professionalism, that is,
accountability.
The problem today is that it takes the
members of any “emerging” profession a certain period of time to understand
the significance of change, how to think about the new organization, and
what steps are necessary to get involved. Even with the progress
that ASEP has made in defining “what is exercise physiology” and “what
is an exercise physiologist” -- academic exercise physiologists have
been very slow in creating change within the traditionally recognized departments,
such as Kinesiology or Exercise Science (or Physical Education).
As a result, students from these programs continue to graduate in record
numbers with academic degrees in everything other than exercise physiology
and, yet refer to themselves as exercise physiologists! There are
no laws that govern the mixture of academic degrees that associate with
exercise science. In time, the ASEP initiatives should help exercise
physiologists evolve from the decisions of previous decades that have resulted
in our overall lack of preparation in understanding individual licensure
procedures and standards of care. Those who have taken the time to
study the dilemma exercise physiologists find themselves in know that it
is true.
The rule of professionalism often requires
that the government or a professional entity oversee the regulatory function
of the profession as it applies to the members. Because the legal
system is ever-present, because professional work is expected, the strength
in a forum of exercise physiologists who adhere to a standard of care is
power. Specifically, power in this case is defined as a commitment
to no wrongdoing. Knowledge is thus power. It is the single
most important means to avoiding a lawsuit and, therefore, to avoiding
a compliant by a plaintiff. All codes address this point since they
are guidelines for ethical responsibility. Professional ethics reduce
the need to control the membership of a profession. Members are expected
to conduct themselves in accordance with the attention given to professional
development and, thus avoiding conditions that result in negligence and
malpractice.
Law and Legal Terms
With the increased emphasis on exercise
as medicine, legal issues regarding negligence are likely to become
part of the exercise physiologists’ everyday concerns. Why academic
exercise physiologists seem to not understand the gravity of the situation
is again a function of the transition from a discipline of technicians
to a profession of healthcare practitioners. It seems as though the
university teachers are either unaware of the potential for serious legal
implications when students graduate into healthcare settings without comparable
credentials to their colleagues or they don’t have time from research to
think much of the issue. As a result, students are often unaware
of the standards of care other professionals have been taught. Confronted
with questions regarding negligence per se, they have little understanding
beyond the informed consent requirement.
It is important that exercise physiologists
recognize that they have a code of ethics and a standard of professional
practice. If they choose not to, then that’s fine too. But,
real professionals, individuals who understand what constitutes a profession,
know that it is important to know the rules of care and performance.
If the exercise physiologists are members of ASEP, it is especially important
because ASEP is recognized as the professional society of exercise physiologists.
Each document published on behalf exercise physiologists defines an act
or a behavior that is reasonable and prudent of the members of the exercise
physiology profession. Hence, if an exercise physiologist’s performance
and/or care of a client is determined not to be reasonable or something
a reasonable person would not gave done in that situation, the exercise
physiologist may be sued for negligence [1].
Because of the professional status of the
ASEP exercise physiologists as board certified, they will be held to a
higher standard of conduct than ordinary fitness professionals. It
is therefore their duty to safeguard clients from foreseeable harm.
Whether the charge is negligence or malpractice is a function of the subtle
distinction between two individuals’ care of the client; one who is guided
by a “professional duty” to act as a reasonably prudent professional and
the other who does not have a professional standards of practice.
An example of the first is the ASEP board certified exercise physiologist.
The second is a non-exercise physiologist regardless of his or her certification
as a fitness professional. Here, the word “professional” misrepresents
the individual who works in fitness settings because there isn’t a recognized
standard of practice since there it is a recognized profession.
Essential Elements of Negligence
Catalano [2] indicates that there are
four essential factors required for a client to make a claim of negligence.
Translating these factors to an exercise physiology perspective, first,
the exercise physiologist has a professional duty to conform to
the standard of care owed to the client. Second, failure to conform
is a violation or breach of duty. Third, the professional
violation is considered the proximate cause of the injuries (causality).
Fourth, the injuries resulted from the breach of duty (damages).
If any of the four is missing from the lawsuit, Catalano [2] points out
that the client will probably not win. However, if an exercise physiologist
is found guilty of negligence; several actions may be taken against the
exercise physiologist. The most obvious is that the exercise physiologist
may be required to provide monetary compensation to the client for his
or her emotional and physical stress suffered [3]. This is in addition
to whether the exercise physiologist who is involved in a negligence action
will keep his or her job.
Because more exercise physiologists are
working directly with clients in fitness centers, cardiac rehabilitation
programs, and corporate wellness programs, there is now a higher probability
that an exercise physiologist, at some point in his or her career, will
be involved in litigation. If the exercise physiologist fails to
conform to the standard of care owed to the client and injury results from
the breach of duty, a legal complaint will be filed with the court on behalf
of the plaintiff (the injured client). The exercise physiologist
and very likely his or her employer must respond to the specific allegations
detailed in the suit. The written response by the defendant is called
the answer. After both the complaint and the answer are filed with
the court, the discovery begins. Here, both sides uncover information
relevant to the suit.
Preventing Negligence or Malpractice
Claims
The next step is defined by legal words
such as deposition, testimony, affidavit, trial subpoenas and many others.
For now, it is sufficient to mention several factors that may help defend
against negligence or malpractice claims.
Contributory Negligence.
In addition to the decisions made by the exercise physiologist on behalf
of the client, it is possible that the client may have contributed to the
injury by not paying attention. When an accident occurs, cross match
it with the client’s prior history. Were there other documented indications
that the client failed to follow clear and concise instructions.
Specific note taking and verbal statements should be filed for future reference.
Unavoidable Accidents. Accidents
can and do happen. Exercise physiologists should always function
within the scope of their practice and/or education. Competent professionals
anticipate sources of possible injury. Discuss safe practices with
clients. Teach them to use the equipment the correct and safe way.
Help them to appreciate the value in understanding the safety devices for
different pieces of equipment. Be sure the facility is organized
to avoid falls or other injuries.
Informed Consent. Whether
the client is in agreement with various exercise protocols that have both
legal and ethical implications and whether the client understands what
he or she has signed depends on the communication between the exercise
physiologist and the client. Always ask questions to ensure that
the client understands the informed consent form.
Delegation versus Supervision.
Exercise physiologists must be confident of delegating their work and/or
supervision to non-exercise physiologists or others who may be less qualified.
The person is given a client to work with, even for a moment, must understand
what to do and that he or she has the knowledge and hands-on skills to
do it safely. Exercise physiologists will be held accountable for
passing their work to a non-qualified staff member or to an intern who
doesn’t have the experience to carrying out the procedure correctly.
Standard of Care. The yardstick
that the legal system uses to measure the quality of one’s professional
ability to care for clients is defined by standards of professional practice
(care). The exercise physiologist’s standard of care must be maintained
at a professional level. He or she should build and maintain good
rapport with clients. Feedback is especially important in building
the client’s confidence and ensuring proper communication. Be sure
to provide full attention to each client, and his or her ability to perform
appropriately to safeguard against injury to joints from equipment failure.
Make sure the client has been given the correct exercise program.
Medical Records. The client’s
records are extremely important to an objective evaluation of reasonable
care or abuse of the client. Make sure that all policies and procedures
of the professional and employer are followed and documented. Identify
and record the client’s issues and/or concerns and any strengths and/or
limitations to a particular exercise program. Observe, monitor, and
record the client’s ability to carry out the instructions. Be alert
to indications for stopping the exercise and record accurately the conversation
with the client at that point in time.
Knowledge of the Client. Having
specific knowledge about individual clients is especially valuable in controlling
the risk of injury. This bears directly various social factors.
Perhaps, there is a belief that the employer has the ability to pay large
settlements. Effective communication between the exercise physiologist
and the client will help the client understand the importance of safety
and performing procedures correctly with good technique.
Suit-Prone Clients. It is
clear that some clients are more likely to initiate a lawsuit that others.
Maintaining excellent records of care and behavior of the client are important
in demonstrating the appropriateness of care and/or instructions of any
kind. Report (and record accurately) all conversations about lawsuits
and negative comments about the staff and/or employer to the administration.
Liability Insurance
A person found guilty of negligence or
malpractice is considered legally responsible for the inappropriate action
that resulted in damages to the client. Since the costs of care,
legal services, loss of earnings, and other types of compensation may result
in a settlement related to a suit, healthcare professionals should have
liability insurance. The cost of liability insurance is relatively
reasonable for exercise physiologists through membership with various organizations.
Presently, ASEP does not have an insurance package for its members.
This will have to be corrected in the very near future since it transfers
the cost of the insurance from the individual to an insurance company.
While there are many questions regarding the pro and con of carrying an
independent policy, the advantages and disadvantages of a variety of insurance
companies, the insurance cost and coverage, and whether the employer can
be held responsible for negligence committed by the employee, it is still
an excellent idea for every employee to have his or her own insurance policy.
Liability insurance coverage should defray
costs of defending the exercise physiologist, including the costs of retaining
an attorney. The insurance should cover all costs up to the face
value of the policy. All exercise physiologists are vulnerable to
lawsuits. It is therefore important that exercise physiologists carry
their own insurance. An example of one such insurance is K&K
Insurance Group, Inc [4]. The company provides insurance coverage
for sport, leisure and entertainment events, leagues, associations and
business organizations across the United States and Canada. Customized
professional insurance coverage is important. Other companies that
provide insurance for personal liability are listed throughout the Internet.
The following is a brief list.
http://www.sports-can.ca/fitness.html
http://www.sportsinsurance.com/sports/?culture=en-us
The Exercise Standards and Malpractice
Reporter
The "Reporter" is published by PRC Publishing,
Inc. Each publication has accurate and authoritative information
relevant to standards or guidelines and proposed solutions to problems
that may arise in fitness, rehabilitative, and athletic settings.
Every exercise physiologist should subscribe to the Reporter [5].
Just a few of the published topics relevant to exercise physiologists are:
-
Suit Arising Out of Personal Training Program
Not Health-Care Malpractice Action
-
Should Health and Fitness Facilities Be Certified?
-
Sexual Harassment in the Fitness Industry
-
Do In-Hospital Cardiac Rehabilitation Programs
Need AEDs?
-
Waiver Protects Against Lawsuit Due to Alleged
Fall From Treadmill
-
Release Fails to Bar Wrongful Death Suit
Summary
Through their professional organization
of ASEP, exercise physiologists have developed some general guides to use
in making ethical decisions about working with clients. They are
contained in the ASEP Code of Ethics [6] and the ASEP Standards of Professional
Practice [7] that is linked directly with the ASEP Board Certification
for exercise physiologists [8]. The ASEP code is unique among individuals
who work with fitness issues and concerns, rehabilitation of patients in
hospital and/or university settings, and athletes. The code is both
a mandate for professional development of exercise physiology and a responsibility
to which exercise physiologists must address as ethical professionals.
The statements of the code and their interpretation provide guidance for
professional conduct in carrying out exercise physiology responsibilities
consistent with the ethical obligations that result from increased career
opportunities in the public sector.
References
1. Guido, G.W. (1992). Legal Issues
in Nursing: A Source Book for Practice. Norwalk, CT: Appleton-Lange.
2. Catalano, J.T. (1996). Nursing Now:
Today’s Issues, Tomorrow’s Trends. Philadelphia, PA: F.A. Davis Company.
3. Ellis, J.R. and Hartley, C.L. (1998).
Nursing
in Today’s World: Challenges, Issues, and Trends. New York, NY: Lippincott.
4. K&K Insurance Group, Inc. (2003).
Customized Insurance. [Online]. http://www.kandkinsurance.com
5. Herbert, D.L. and Herbert, W.G. (2003).
The
Exercise Standards and Malpractice Reporter. Canton, OH: PRC Publishing,
Inc.
6. American Society of Exercise Physiologists.
(2003). ASEP Code of Ethics. [Online]. http://www.asep.org/vision
7. American Society of Exercise Physiologists.
(2003). ASEP Standards of Professional Practice. [Online]. http://www.asep.org/standards
8. American Society of Exercise Physiologists.
(2003). The Exercise Physiologist’s Certification Candidate’s Guide. [Online].
http://www.asep.org/asep/asep/EPCManual.html