Eickhoff-Shemek, JoAnn M. Ph.D., FACSM, FAWHP; Herbert, David L. J.D.; Connaughton, Daniel P. Ed.D.
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 was released by 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 P. 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 Sports 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 AAHPERD 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.
In a previous column, we introduced the Risk Management Pyramid (2). We defined risk management (RM) 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]. The RM Pyramid included seven defensive layers that can be "proactively" implemented to help minimize legal liability associated with negligence. In this article, we highlight key RM concepts and describe four "strategic" planning steps that are essential in building a comprehensive risk management plan (CRMP)-one that is effective in providing protection against negligence claims/lawsuits and in preventing the violation of any laws.
Most health/fitness (H/F) professionals are familiar with the basic steps of planning a quality H/F program: 1. assessment of needs, 2. development of the program based on needs, 3. implementation of the program, and 4. evaluation of the program. These four steps can be applied to building a CRMP (Figure).
Figure. Major compon...Image Tools
H/F professionals should realize that they may not possess all the necessary background knowledge to create a CRMP and therefore should involve a risk management advisory committee (e.g., a committee of legal, medical, and insurance experts) to assist with the decision-making process involved in each of the following four steps.
STEP 1-ASSESSMENT OF LEGAL LIABILITY EXPOSURES
H/F professionals first need to understand and appreciate the many legal liability exposures that exist in their daily practices. "A legal liability exposure is any situation that creates the probability of a medical emergency occurring (e.g., failure to conduct preactivity screening, proper instruction/supervision, and regular inspections of exercise equipment) or increases the severity of a medical emergency when one occurs (e.g., failure to carry out appropriate emergency care). Legal liability exposures also are created when health/fitness facilities do not adhere to federal, state, and local laws as well as published standards of practice that are applicable to the field" (3)[p.10].
Step 1 involves becoming aware of laws that are applicable to the H/F field. Federal laws such as the Americans with Disabilities Act and the Occupational Safety and Health Administration Bloodborne Pathogens Standard are quite complex and involve numerous requirements for H/F facilities, not to mention the many laws that deal with employment issues. Violation of these and/or other laws or regulations at the state and local levels can lead to criminal charges resulting in large fines.
Court filings and rulings also are of importance. Case law decisions may set precedent-a rule that future similar cases will have to follow. For example, the appellate court in Thomas v. Sport City, Inc. stated, "members of health clubs are owed a duty of reasonable care to protect them from injury while on the premises. …This duty necessarily includes a general responsibility to ensure that their members know how to properly use gym equipment" (4)[p.1157]. Although this case occurred in Louisiana and therefore reflects a ruling only in that state, it is important to realize that courts often consider rulings of courts from other states when forming their own rulings in similar cases.
Step 1 also involves becoming aware of the many standards of practice (e.g., standards, guidelines, position papers, and specifications) published by professional and independent organizations. Professional organizations like the American College of Sports Medicine have published several such statements (1,5,6) as have other professional organizations such as the Medical Fitness Association, National Strength and Conditioning Association, International Health, Racquet and Sportsclub Association, and the YMCA (3). Specifications published by independent organizations like the American Society of Testing and Materials and exercise equipment manufacturers also should be examined. Any of these published documents can be used in the presentation of evidence about the standard of care owed to the plaintiff in negligence claims and lawsuits. For example, in Xu v. Gay, the appellate court ruled that the "defendant's [health/fitness facility's] ignorance of and failure to implement these standards… establishes a case of ordinary negligence" (7)[p.171]). Obtaining knowledge about the many laws (statutory, administrative, and case law) and published standards of practice is a necessary first step to developing effective RM strategies.
STEP 2-DEVELOPMENT OF RM STRATEGIES
This step involves preparing written RM strategies that reflect the laws and published standards of practice. These strategies can be categorized into the following three areas: 1. loss prevention, 2. loss reduction, and 3. contractual transfer of risks. Loss prevention strategies eliminate or reduce the frequency of medical emergencies (e.g., properly maintaining exercise equipment and providing safe/effective personal fitness training services). Loss prevention strategies also include written procedures that reflect proper adherence to applicable laws.
Loss reduction strategies, such as providing appropriate care when a medical emergency occurs, lower the severity of possible liability losses. For example, using an automated external defibrillator (AED) when a participant experiences a cardiac arrest not only may save the participant's life but also may help refute any negligent claims made against H/F professionals and facilities for not meeting the standard of care (e.g., the failure to have and use an AED). There are many case law examples where such claims have been made against H/F facilities (2). All facilities should have a well-written emergency action plan (EAP) that is carried out by qualified staff members in a timely fashion, rehearsed by staff members several times throughout the year, provides for proper equipment such as an AED and first-aid kit, and includes follow-up procedures such as the proper completion of an incident/injury report form.
Risk management strategies involving the contractual transfer of risks also should be developed. H/F professionals and facilities can protect themselves by having participants sign a waiver in advance of activity. By doing so, participants contractually agree to not sue the facility for its own negligence. However, to be effective, waivers must be properly written to meet any individual state requirements and administered properly. In addition, some states do not enforce waivers because they are against public policy (2). In these states, only loss prevention and loss reduction strategies provide a sound defense against any such negligence claims. Securing both general and professional liability insurance also involves the contractual transfer of risks. For example, if an H/F professional or facility is found negligent, the insurance provider contractually agrees to pay for any damages (financial losses) within the limits of the policy, thus protecting the financial assets of the professional and facility.
STEP 3-IMPLEMENTATION OF THE RM PLAN
Once written risk management strategies are developed, it is then recommended that they be included into a Risk Management Policy and Procedures Manual (RMPPM)-a document that can be easily referenced and used by staff members. For example, procedures involving preactivity health screening, the EAP, and the regular maintenance of exercise equipment can be organized within the RMPPM, so they can be easily located. The RMPPM also can be used for staff training-a critical component involving the implementation of the RM plan. Staff training should be conducted initially upon hiring and through regular in-service trainings established throughout the year (e.g., review and rehearsals of the EAP). Some facilities also may want to consider having the RMPPM available electronically on the facility's intranet so that staff members can easily review it before initial and regular in-service trainings. Once completed, the RMPPM should reflect the CRMP of the facility.
STEP 4-EVALUATION OF THE RM PLAN
Evaluation of the RM plan involves both formative and summative evaluation. Formative evaluation includes ongoing evaluation of the plan throughout the year (e.g., after every medical emergency, management should determine if all aspects of the EAP were carried out properly by staff members and, if not, what steps are necessary to help ensure that the EAP will be carried out properly the next time). Formative evaluation also involves observing (and correcting when necessary) the performance of staff members such as group exercise leaders and personal fitness trainers to help ensure that they are properly instructing and supervising their participants. Summative evaluation is a formal annual review of the CRMP. It will be important to make any revisions with the RM strategies in the RMPPM if the law and/or published standards of practice have changed. Of course, staff members then need to be retrained with regard to these changes.
Building a CRMP involves obtaining knowledge about the law and how to apply it through effective RM strategies. It takes time, strong leadership, foresight, and a genuine desire to provide a reasonably safe environment for participants. However, it is well worth the effort. Although risk management focuses on preventing medical emergencies from occurring in the first place, as well as costly litigation that can occur after an emergency, there are other benefits for having a CRMP. It will help improve the quality of programs and services, thus increasing participant retention, and it also will enhance operational efficiency so that staff members can spend less time putting out fires and more time in program development and expansion. Therefore, the benefits of a CRMP not only help protect the financial assets of a H/F facility but also can result in potential increased revenues (e.g., enhanced participant retention and program expansion) and decreased costs (e.g., lower liability insurance premiums).
This column provides general legal information and is not intended to substitute for individualized legal advice.
1. American College of Sports Medicine and American Heart Association Joint Position Statement. Recommendations for cardiovascular screening, staffing, and emergency policies at health/fitness facilities. Med Sci Sports Exerc
2. Eickhoff-Shemek JM, Herbert DL, Connaughton DP. Introducing the risk management pyramid. ACSMs Health Fit J
3. Eickhoff-Shemek JM, Herbert DL, Connaughton DL. Risk Management for Health/Fitness Professionals: Legal Issues and Strategies.
Baltimore (MD): Lippincott Williams & Wilkins; 2009. p. 9-10, 48.
4. Thomas v. Sport City, Inc.
738 So. 2d 1153 (La. Ct. App. 2 Cir., 1999).
5. Tharrett SJ, McInnis KJ, Peterson JA, editors. ACSM's Health/Fitness Facility Standards and Guidelines
. 3rd ed. Champaign (IL): Human Kinetics; 2007. p. 1-203.
6. Whaley MH, editor. ACSM's Guidelines for Exercise Testing and Prescription
. 7th ed. Philadelphia (PA): Lippincott Williams & Wilkins; 2006. p. 1-366.
7. Xu v. Gay
, 668 N.W.2d 166 (Mich. App., 2003).