Legal
Dimensions of Exercise Physiology Practice
Tommy Boone,
PhD, MPH, MA, FASEP, EPC
Professor
and Chair
Director,
Exercise Physiology Laboratories
The College
of St. Scholastica
Duluth, MN
Introduction:
A Personal View
Recently,
I overheard a student who is a medical doctor say to his instructor that
“if the exercise physiologist does not explain to the subject (or patient)
all the risks associated with an exercise stress test, then the exercise
physiologist is at considerable legal risk.” As an exercise physiologist,
I found the student’s comment interesting (particularly from the doctor’s
point of view).
For years,
I have been convinced that the medical doctor may not the best of the healthcare
professionals when it comes to the “informed consent”. First of all,
can you remember when a medical doctor actually sat down with you and discussed
the risks of a new drug or the risks of surgery? I cannot, and I
have tried. Believe me, I have tried and, if my memory serves me
well, I have had three operations and half a dozen evaluations by medical
doctors that I had to beg for more information. Not once was I informed
of the potential for complications.
Now, you may
understand why the student’s comment was so strange to me. Medical
doctors are exempt from the legal reality of the informed consent because,
in effect, they cannot do anything wrong! Even when they administer
the wrong medication and the patient suffers needlessly, the medical doctors
do not suffer professionally or personally. Even when they perform
the wrong surgery, the patient suffers. The medical doctor performs
yet another surgery tomorrow.
This is all
rather depressing to me, especially when exercise physiologists are working
so hard to embrace the professionalization of their field. As a result,
I decided to think about the legal dimensions of what exercise physiologists
do in the public sector. It should be noted that from the outset
the doctrine of informed consent has always been important.
No one should have the right to do something to anyone without explaining
the likelihood of negative effects. To understand this point is to
accept that the subjects and patients have rights. They have the
right to consent to a test, the right to stop a test, and the right to
ask questions about a test.
The doctrine
is consistent with the idea that any subject or patient has the right to
refuse to participate, even to refuse treatment. Legally speaking
therefore, the medical doctor should be the first among healthcare practitioners
in understanding the importance of asking a subject or patient to sign
a consent form. Exercise physiologists understand this point.
They embrace the doctrine of informed consent. Virtually no research
project gets underway without a dedicated member of the research team poised
to obtain informed consent. They know that the information must be
explained in language understandable to the subject. This is not
a question or a mis-understanding for exercise physiologists (1).
For additional, detailed information about concerns arising from giving
informed consent, defenses to negligence or malpractice actions, consult
the excellent and comprehensive work of Herbert and Herbert (2).
Standards
of Professional Practice
What is new
in exercise physiology is the legal implications for recognized standards
of practice. Standards define what professionals can do as well as
the quality of care given. In 2001 the ASEP published its first Standards
of Practice for Exercise Physiologists (3).
The Standards are the province of the Board of Certification. They
define the practice of the professional Board Certified Exercise Physiologist.
Hence, it is imperative that exercise physiologists who are certified by
ASEP (via the Exercise Physiologist Certified exam, EPC) are familiar with
the practice regulations. The regulations are particularly helpful
in delineating accountability for many functions of exercise physiology.
They may be referred to for information about “instruction, examination,
and practice”.
The “Standards”
are internally imposed policies and procedures by the members of the American
Society of Exercise Physiologists (ASEP). They are used to delineate
a minimal standard of care in an integrated, multi- disciplinary society.
As such, then, the ASEP Standards provide the first model for insuring
the development of a reliable means of assessing the quality of exercise
physiology. Therefore, the Standards should consulted when a question
of quality of care and accountability arises. The model also takes
into consideration the exercise physiologists' Code of Ethics (4)
promulgated by the ASEP Board of Directors (5).
Questions of
liability arise when an error is committed or when a subject is unexpectedly
injured. Before a tentative claim becomes an actual liability case,
the plaintiff’s attorney, in general, must prove the following:
(a)
that a standard of care existed in the given situation;
(b) that the
standard of care was breached or broken;
(c) the proximate
causation; and
(d) damage.
In short, Board
Certified Exercise Physiologists are responsible for not putting a person
or client to an unreasonable risk of harm. Of course the question that
has to be answered is: What constitutes an unreasonable risk of
harm? An exercise physiologist who fails to recognize the inherent
danger in leaving a client without instructions about running on the treadmill
may constitute an unreasonable risk of harm. Also, allowing or encouraging
a client to bench press more weight than is possible without adequate supervision
may be recognized as subjecting the client to an unreasonable risk to his
or her health.
As to breach
of the standard of care, it may be proven by determining whether certain
safety procedures (as in the treadmill or weight lifting examples) were
not discussed and implemented. The lack of records in a gym or workout
facility can work against the exercise physiologists, especially when other
personnel and/or experts are called to testify in the client’s behalf.
The expert may point out that the exercise physiologist did not know the
safety procedures, as demonstrated by a lack of education and/or training
in weight lifting. The client may have a written document of each
workout session that notes the lack of safety discussed or used across
several weeks at the facility.
To prove proximate
causation, the plaintiff’s attorney must find a causal link between the
breach of the ASEP Standards of Practice and the injury to the client.
Causation may not be difficult to prove since a single individual in a
health and fitness facility is usually responsible for providing the client’s
care, particularly if it can be determined that the individual’s conduct
contributed to the physical harm (the fourth point) that occurred to the
plaintiff. There is also the question of whether the exercise physiologist’s
lack of knowledge about weight lifting resulted in the client’s increased
hospitalization and bills, including but not limited, to loss of earning
capacity.
In general,
negligence is a matter of damage resulting from the failure of the exercise
physiologist to conduct him- or herself in accordance with an accepted
standard (2). When the harm is so obvious that
it would not have occurred without negligence, the court may determine
(even without direct evidence) that the exercise physiologist is liable
for the client’s resultant injuries. Had the exercise physiologist
acted as a reasonably prudent professional, there is still the question
of whether his or her behavior should have been at an even higher degree
of reasonableness than defined by the Standards. There may also exist
confusion about which standards of practice are exercise physiologists
responsible for upholding. To mention a few, there are standards
developed by the American College of Sports Medicine (6),
the American Heart Association (7), the American Cardiology
Association (8), and others (9-11).
Since exercise
physiologists have their own Standards of Practice, the guidelines published
by other organizations and the differences in how each interprets various
aspects of stress testing and prescription of exercise should not be applicable
to the exercise physiology profession. However, what the Standards
also do is to drive the profession to advance its thinking about the legal
issues and the publication of documents that outline the many sources of
legal vulnerability. There is still more work to be done in this
area of thinking and application within the pubic sector.
Individual
Liability Insurance
Should a Board
Certified Exercise Physiologist (EPC) carry professional liability insurance?
The Standards of Professional Practice does not have such a requirement.
Most professional organizations do not require their members to carry individual
liability insurance. It is a personal matter; one that has a certain
cost factor attached to it as well as the question of how important is
it to do so. In general, it is believed (if not assumed) that the
employer’s insurance coverage extends to the employees since they are working
for the employer. Whether this is true is a serious question for
the employee to determine. Exercise physiologists ought to determine
the type and extent of the coverage at their workplace, whether the employer
covers him or her individually, and the degree to which it covers legal
costs, judgments or settlements.
Personal liability
insurance for exercise physiologists can usually be obtained inexpensively
through professional organizations, and sometimes directly from liability
insurance carriers. In general, however, insurance coverage is more
cost efficient when it is purchased as a member of an organization that
offers the coverage as a membership benefit. Presently, ASEP, as
an organization does not offer a professional liability insurance plan
designed specifically for its members. In the very near future, this
will be added as a benefit. There are ways around this, however and,
if interested, you should contact the "Marsh Affinity Group Servcies at
1440 Renaissance Drive, Park Ridge, IL 60068-1400 (or 1-800-503-9230) before
the event that a malpractice claim is filed against you.
Exercise
physiologists should carry their own liability insurance. This is
merely a logical fact, and it is essential for all ASEP Board Certified
Exercise Physiologists. Why, because they will be held to a higher
standard of care than non-ASEP certified exercise physiologists.
It doesn’t have anything to do with the fact that they are not licensed.
If a client suffers harm as a direct result of a Board Certified Exercise
Physiologist’s action, the EPC can be (and very likely will be) held personally
liable.
To Minimize
Legal Problems
Because exercise
physiologists are not licensed and, therefore, not subject to violation
of state laws, they are nonetheless subject to legal problems just like
any other occupation or profession that offers a service to the public
sector. It is prudent that exercise physiologists take positive steps
in minimizing legal problems, particularly regarding emergency procedures.
One major step in the right direction for both the employer and the exercise
physiologist is to hire ASEP Board Certified Exercise Physiologists and
get certified via ASEP, respectively. All exercise physiologists
should be CPR certified and familiar with emergency procedures. Their
educational curriculum should include the risks and dangers of exercise
and the development and implementation of an informed consent. Professors
must teach their students the difference between the practice of exercise
physiology and the practice of medicine.
“Exercise is
medicine” is a popular phrase today. However, exercise physiologists
must be especially clear that, while exercise may be viewed as medicine,
they do not practice medicine. This is not a play on words.
Rather, the point is to highlight the difference between using exercise
as medicine and the practice of medicine. Stated somewhat differently,
exercise physiologists administer exercise testing, design exercise prescriptions,
and implement physical training programs. They do not diagnose ECG
changes during the test. Instead, they are educated to determine
if the ECG strip is contraindicated to continuing the test. As long
as they understand the distinction and the other points discussed, legal
concerns resulting from negligence-type litigation will be minimized.
This does not mean, however, that legal issues go away. As long as
exercise physiologists work with the public sector, there will always be
the likelihood of legal issues. This is why it is so important to
have individual liability insurance.
The Exercise
Standards and Malpractice Reporter
The “Reporter”
is a publication of PRC Publishing (12). It is
published six times a year, in January, April, July and October, with two
other special editions. The subscription price is usually around
$40. The publication is written and published to provide accurate
and authoritative information relevant to the exercise physiologists.
The primary author for most of the articles is David L. Herbert, Esq.,
Attorney at Law and Partner, Herbert and Benson, Attorneys at Law.
His brother, William G. Herbert, PhD., is an exercise physiologist.
He writes a lot of the legal articles with implications for sports, fitness,
and exercise. It is a publication that will help you think about
what you should do when considering standards and malpractice issues.
Final Thoughts
This article
is just one small step in initiating the discussion of legal implications
for professional exercise physiologist. In the near future, PEPonline
will publish additional articles like this one. An effort will be
made to locate experts in the field to discuss their views about this topic,
and what they teach their students and/or share with their colleagues.
References
1.
Thomas, J.R. & Nelson, J.K. (1996). Research Methods in Physical Activity.
Third Edition. Champaign, IL: Human Kinetics.
2.
Herbert, D.L. & Herbert, W.G. (1989). Legal Aspects of Preventive and
Rehabilitative Exercise Programs. Second Edition, Canton, OH: Professional
Reports Corporation.
3.
American Society of Exercise Physiologists. ASEP Standards of Professional
Practice. [Retrieved February 28, 2002 from the World Wide Web] http://www.css.edu/ASEP/StandardsofProfessionalPractice.html
4.
American Society of Exercise Physiologists. ASEP Code of Ethics. [Retriieved
February 28, 2002 from the World Wide Web] http://www.asep.org/asep/asep/ethics.htm
5.
American Society of Exercise Physiologists. Charter: ASEP Board of
Directors. [Retriieved February 28, 2002 from the World Wide Web]
http://www.asep.org/asep/asep/execbod.htm
6.
American College of Sports Medicine. (1991). Guidelines for Exercise Testing
and Prescription. 4th edition. Philadelphia, PA: Lea & Febiger.
7.
American Heart Association. (1990). Special report: Exercise standards,
a statement for health professionals. Circulation. 82:2286, 1990.
8.
American College of Cardiology. (1986). Recommendations for cardiovascular
services. Cardiology. 15:4.
9.
American Association of Cardiovsacular and Pulmonary Rehabilitation. (1991).
Guidelines for Cardiac Rehabilitation Programs. Champaign, IL: Human Kinetics.
10.
American Medical Association, Committee on Exercise and Physical Fitness.
(1972). Evaluation for exercise participation: The apparently healthy individual.
JAMA. 219:900-901.
11.
American Medical Association, Council on Scientific Affairs. (1981). Indications
and contraindications for exercise testing (A council report). JAMA. 246:1015-1018.
12.
The Exercise Standards and Malpractice Reporter. (2002): A publication
of PRC Publishing, Inc., 3976 Fulton Drive, N.W., Canton, Ohio 44718 (Attn:
David L. Herbert/William G. Herbert, Editors; 330-492-6063 or 1-800 336-0083).
Copyright
©1997-2007
American Society of Exercise Physiologists All Rights
Reserved.