Understanding Professional Negligence
Tommy Boone, PhD,
MPH, FASEP, EPC
Professor and Chair
Department of
Exercise Physiology
The College of St. Scholastica
Duluth, MN
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Being sued has to be one of the
most stressful and dreaded events of an exercise physiologist's life. Knowing the essential elements of
professional negligence helps in dealing with the difficulties a lawsuit
presents.
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Professional liability
insurance ensures the exercise physiologist against claims made by a client
or patient alleging negligence. This
is important because Board Certified Exercise Physiologists are experts in
health, fitness, rehabilitation, and athletics. Thus, they can be held liable for actual or
alleged errors, omissions, negligence, breach of duty, misleading statements,
and similar claims resulting from the performance or the non-performance of
professional services. Most policies
cover both the defense costs (e.g. attorney fees, court costs) and
settlements or judgments
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AS EXERCISE PHYSIOLOGISTS gain
authority, autonomy, and accountability, they will have to assume
responsibility and liability for their own practice. Responsibility and thinking of this kind is
uncommon in exercise physiology. Yet,
with the development of the Board of Certification, exercise physiologists can
now sit for the "Exercise Physiologist Certified" (i.e., EPC) exam
[1]. As a result of passing the EPC
exam, the candidate earns the title "Exercise Physiologist." Then, the exercise physiologist is held responsible
for adhering to a scope (standards) of practice, which adds another consideration
to doing one's job. Given the added
"liability" factor and, therefore, the increased likelihood of
liability suits, exercise physiologists should carry individual malpractice
insurance.
In malpractice or professional
negligence cases (i.e., the failure of a professional to act in a reasonable
and prudent manner), there is a plaintiff (the injured party) and a defendant
(the professional who is alleged to have caused the injury). In short, then, negligence is a breach of an
objective standard of medical practice [2].
When judged by a reasonably prudent person, as in a jury, if the
exercise physiologist's conduct falls below this standard set by the profession
to protect the public from unreasonable risk of harm, a breach of duty is said
to have occurred.
Five elements of liability must
be present for a professional to be held liable for malpractice [3]. First, a standard of care must be established
that defines the quality of care believed of a professional group. The exercise physiologist's standard of care
is defined by the Standards of Practice [4].
The point here is that the exercise physiologist is responsible to a
client for adhering to the profession's standards of care. When the quality of care is questioned by the
plaintiff (the client), the defendant must show that the care given is
consistent with what the reasonably prudent EPC exercise physiologist would
have done in accordance with the profession's standards.
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According to the Allied
Healthcare Professionals Insurance Center [5], "The only way to insure
that you’re covered for your professional acts is to have your own
professional liability policy, issued in your name. Your liability insurance policy will
provide you with limits of liability that meet your professional insurance
needs. And, because the liability
insurance policy is issued in your name, many possible conflicts of interest
between you and your employer may be eliminated in the event a claim is
filed….When dealing with allied healthcare professional liability insurance,
you may be able to add an additional $1,000,000 or $2,000,000 of coverage for
a minimal additional to your premium payment. Therefore, based on your
individual needs, it may be worth considering the maximum limits offered for
your policy, rather than simply selecting the most inexpensive premium
available."
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Second, a breach of duty occurs
when the exercise physiologist violates the standards of care. The plaintiff must prove that the exercise
physiologist's actions were substandard and that the substandard action caused
an unfavorable outcome that would not have occurred in the absence of
negligence. For example, failure of the
exercise physiologist's to properly acknowledge the client's disease condition,
either by not using the proper treadmill test or not monitoring the client
properly, failure to properly administer an exercise prescription, or failure
to gain a proper informed consent from a client before proceeding with a
metabolic test or other such procedure for fitness assessment and/or
rehabilitation.
Third, the exercise physiologist understands
that the professional practice is written with the expectation that if the
standards are followed they will avoid harm to the client. This foreseeability of harm argues that the
exercise physiologist has reasonable knowledge to foresee the likelihood of
injury to the client. Fourth, the
failure to uphold the professional standards increases the likelihood of injury
to the client. Fifth, failure to adhere
to the standards resulted in an injury that would not have occurred had the
exercise physiologist not failed to perform his or her duties in accordance
with the standards. That is, the alleged
deviation from the exercise physiologist’s standards of care directly or
indirectly caused the injury or unfavorable outcome. Of course, the plaintiff must prove that the
exercise physiologist's actions were substandard and that the substandard
action caused the injury that would not have occurred in the absence of
negligence.
Avoiding malpractice claims is
important. Exercise physiologists can
decrease their risk of being sued for malpractice by doing the following. For example, the most obvious is to practice
within the standards of the exercise physiology practice act. Acknowledge and faithfully carry out all
policies and procedures, noting that they have been model after established
practice standards and are designed to put the patient's rights and welfare
first. Less obvious concerns that are
equally important in malpractice suits include attending to continuing
education credits and having professional malpractice (liability) insurance. Professional liability claims are likely to
increase in the future, and after that there will be no end in sight.
When faced with such claims exercise physiologist will want to be defended by
attorneys who are not only experienced litigators, but who also know and
understand exercise physiology and the professional standards under which exercise
physiologists function. Defending
litigation against exercise physiologists requires an understanding of the
professional doctrines that are peculiar to the exercise physiologist's
liability case.
References
1. American Society of Exercise Physiologists.
(2007). Board Certification for Exercise Physiologists. [Online]. http://www.asep.org/services/EPCexam
2. Franklin,
C., Marutzky, E.M., and Sandberg, C.M. (2007). Medical Professional Liability.
Physicians' Guide to Professional Negligence Claims. Resident & Staff Physician. July/August, 53:7 [Online]. http://www.residentandstaff.com/issues/articles/2007-07_03.asp
3. Marquis,
B.L. and Huston, C.J. (2003). Leadership
Roles and Management Functions in Nursing. Philadelphia, PA:
Lippincott Williams & Wilkins.
4. American Society of Exercise Physiologists.
(2007). Standards of Professional Practice. [Online]. http://www.asep.org/services/standards
5. Allied Healthcare Professionals
Insurance Center.
(2007). Why Do I Need Professional Liability Insurance. [Online]. http://www.ahc.lockton-ins.com/pl/understandingPLI_3.html