JoAnn M. Eickhoff-Shemek, Ph.D., FACSM, FAWHP, is a professor and the coordinator of the Exercise Science program at the University of South Florida in Tampa. Dr. Eickhoff-Shemek's research focuses on legal liability and risk management issues in the health/fitness field. She is the lead author (coauthors are David Herbert, J.D., and Daniel Connaughton, Ed.D.) of a new text entitled Risk Management for Health/Fitness Professionals: Legal Issues and Strategies that will be released by the publisher, Lippincott Williams & Wilkins, in October 2008. Dr. Eickhoff-Shemek is the legal columnist and an associate editor of ACSM's Health & Fitness Journal® and is ACSM Health/Fitness Director® certified, ACSM Exercise Test TechnologistSM certified, and a Fellow of ACSM.
David L. Herbert, J.D., is the senior member of David L. Herbert & Associates, LLC, Attorneys and Counselors at Law, Canton, OH. He is coeditor of The Exercise Standards and Malpractice Reporter and The Sports Medicine Standards and Malpractice Reporter. He is an author or coauthor of 20 books, numerous book chapters, and more than 500 articles on the subject of negligence and malpractice, risk management, standards and guidelines, and health and fitness facility law and trial practice. He is a frequent presenter to health, fitness, and sports medicine groups including ACSM. He is a trustee of the National Board of Fitness Examiners, a member of the Defense Research Institute, and a member of the American, Ohio, and Stark County (Canton, OH) Bar Associations.
Daniel Connaughton, Ed.D., is an associate professor in the Department of Recreation, Tourism, and Sport Management at the University of Florida where he teaches and conducts research in the area of sport law and risk management. He received a B.S. in Exercise and Sport Sciences and an M.S. in Recreational Studies from the University of Florida, an M.S. in Physical Education (Administration) from Bridgewater State College, and his Doctorate in Sport Administration from the Florida State University. Dr. Connaughton is a Fellow with the Research Consortium of the American Alliance for Health, Physical Education, Recreation and Dance and has won numerous teaching awards. Finally, he is ACSM Health/Fitness Instructor® certified and the holder of numerous other professional certifications. Dr. Connaughton has served as an expert witness and legal consultant on many sport- and fitness-related lawsuits.
Health/fitness professionals are familiar with various pyramid diagrams that have been developed to depict and summarize certain actions or behaviors that individuals can take to improve their health. For example, the Food Guide Pyramid, Activity Pyramid, and Life Balance Pyramid (1) succinctly provide recommendations with regard to nutrition/diet, regular physical activity, and behavioral components of a balanced lifestyle, respectively. A well-known and established pyramid-the Food Guide Pyramid-has been revised and is now referred to as the MyPyramid Food Guidance System (2). It was designed to help educate Americans about making healthy food choices and being physically active in their everyday activities. A new pyramid, the Risk Management Pyramid designed specifically for health/fitness professionals, is being introduced in this column to help educate health/fitness professionals about making wise choices with regard to the safety of their participants while also protecting themselves from potential legal liability.
THE RISK MANAGEMENT PYRAMID
Using the Risk Management Pyramid will not only help minimize the occurrence of untoward events and related medical emergencies from ever occurring in health/fitness facilities but also help protect health/fitness professionals and/or facilities from costly negligence claims, lawsuits, and liability after a medical emergency does occur. In this regard, risk management may be defined as "a proactive administrative process that will help minimize liability losses (e.g., claims or lawsuits due to negligence) for health/fitness professionals and the organizations they represent" (3[p. 9]).
Because negligence is a common type of legal liability exposure that health/fitness professionals regularly face, the Risk Management Pyramid focuses on preventing or minimizing negligence. A defendant (a health/fitness professional and/or facility) can be held liable for negligence if the plaintiff (the injured party) can prove that the defendant breached a duty (e.g., failed to conform to a generally accepted standard of care) and that the breach of that duty proximately caused harm.
The Risk Management Pyramid (Figure) provides seven lines (or layers) of defenses that reflect risk management strategies that health/fitness professionals can develop and implement to help prevent and/or minimize medical and other emergencies and subsequent negligence claims and lawsuits. Each line of defense is briefly described in the Risk Management Pyramid. The seven lines of defenses collectively represent the elements of a "comprehensive" risk management plan that all health/fitness facilities should have in place to protect themselves and their programs.
The first three lines of defense are considered the foundation of a comprehensive risk management plan and are important to identify and implement before proceeding with the specific actions described in the remaining lines of defense. For example, knowing the laws (statutory, administrative, and case law) that are applicable to the health/fitness field as well as published standards of practice (e.g., standards, guidelines, position papers published by professional organizations, and safety specifications published by exercise equipment manufacturers) is essential for health/fitness professionals. Without this knowledge, it is unlikely that health/fitness professionals will fully understand and appreciate their many legal responsibilities.
The fourth line of defense focuses on being proactive-thinking through the many foreseeable risks that can occur in fitness programs and then taking action that involves developing risk management strategies in the form of written policies and procedures that address these risks. Once these strategies are developed, staff members must be well trained on how to properly comply with these policies and procedures.
When a medical emergency occurs, it is critical that all health/fitness facilities not only have a written medical emergency action plan in place to address such occurrences but that staff members carryout the emergency action plan properly, as described in the fifth line of defense. For example, not adhering to published standards of practice that now require health/fitness facilities to have an automated external defibrillator in place in their programs (4) not only can result in claims based upon ordinary negligence but also may result in claims of gross negligence as well (5).
For example, in a recent Illinois case dealing with a claim of gross negligence, Fowler v. Bally Total Fitness Corp., the court stated "there is no denying the fact that Bally (the defendant) knew with 100% certainty that dozens of its members would experience heart attacks and die each year, and instead of pursuing a relatively cheap and easy solution to the problem through the deployment of automated external defibrillators at its health facilities, Bally chose to consciously disregard this known risk. That strikes this Court as the very definition of gross negligence" (5[pp. 22-24]). It is important to recognize that in most states, waivers (depicted in the sixth line of defense) will not protect defendants from gross negligence and that liability insurance policies (described in the seventh line of defense) generally do not pay for punitive damages that are often awarded when a defendant(s) has been found liable for gross negligence.
Because of the inherent relationship that is formed between health/fitness professionals and their participants, the law requires that health/fitness professionals provide reasonably safe facilities and programs for their participants. This legal requirement (or duty) is carried out through adherence to the proper standard of care. The programs can be protected from legal claims and resultant litigation through the development and implementation of a comprehensive risk management program that is reflected in all seven defenses in the Risk Management Pyramid. In the next legal column, we will address the specific steps in the risk management process.
3. Eickhoff-Shemek, J.M., D.L. Herbert, and D.P. Connaughton. Risk Management for Health/Fitness Professionals: Legal Issues and Strategies.
Baltimore: Lippincott Williams & Wilkins, 2009.
4. ACSM's Health/Fitness Facility Standards and Guidelines.
3rd ed. Tharrett S.J., K.J. McInnis, and J.A. Peterson (Editors). Champaign: Human Kinetics, 2007.
5. Herbert, D.L. Illinois AED case to proceed on gross negligence claim. The Exercise Standards and Malpractice Reporter
22(2):17, 20-24, 2008.