PEPonline
Professionalization of Exercise Physiologyonline

An international electronic
journal for exercise physiologists
ISSN 1099-5862

Vol 5 No 3 March 2002

 


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).


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