Professionalization of Exercise Physiologyonline               


ISSN 1099-5862   Vol 6 No 9  September 2003 
 






 
 















    Editor-in-Chief
    Tommy Boone, PhD, MPH, MA, FASEP, EPC
 



 
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
 
 

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