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 recently released by Lippincott Williams & Wilkins. 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, health and fitness facility law, and trial practice.
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. He is ACSM Health/Fitness Instructor® certified and has served as an expert witness and legal consultant on many sport- and fitness-related lawsuits.
In two previous legal columns, we focused on issues related to risk management. We introduced the risk management pyramid (5), which described seven defensive layers that can be effective in minimizing liability associated with negligence, and we described four essential steps (assessment, development, implementation, and evaluation) that are necessary to build a comprehensive risk management plan (6). This column will focus on staff training, a vital component of the third step - implementation of the risk management plan.
Implementation of a risk management plan involves developing a Risk Management Policies and Procedures Manual (RMPPM) for health/fitness facilities (Figure 1). After risk management procedures (i.e., written steps that describe how staff members are to carry out their risk management responsibilities) are finalized, they can be organized into an RMPPM. This manual can serve as a key tool for staff training. The risk management policies and procedures also can be placed on the facility's Intranet so that staff members can easily access and review them before training sessions and as necessary in carrying out their duties and responsibilities.
IN-SERVICE STAFF TRAINING
In-service staff training (or on-the-job training) conducted by health/fitness managers and professionals is a common type of staff training that occurs in many such facilities. It is essential that health/fitness managers and professionals have the necessary knowledge and skills to effectively lead such trainings. For these individuals to carry out their training activities, they need to possess adequate knowledge of applicable laws and published standards of practice in the field as well as possess excellent pedagogical teaching skills to provide quality training for employees.
The major goal of risk management training is to teach staff members "how" to carry out the risk management procedures as described in the RMPPM. To enhance the effectiveness of risk management training, it also is important to teach employees "why" it is important to properly carry out their risk management responsibilities. For example, using information from case law examples that have occurred in health/fitness facilities not only makes training sessions more interesting and meaningful, but also can help employees understand what the potential consequences may be if they do not properly carry out their responsibilities, that is, client injury/death as well as legal claim and lawsuit against them.
One of the major costs of staff training is the time it takes health/fitness managers and professionals to prepare for and deliver in-service training programs. However, the potential benefits of risk management staff training can outweigh the costs (Figure 2). One lawsuit can cost thousands and sometimes millions of dollars in defense costs and potential settlements/judgments, not to mention any negative publicity that also might occur. Multiple claims/lawsuits also can lead to a significant increase in liability insurance premiums or outright insurance cancellation. For example, a health club in New York recently reported an increase from $12,000 to $59,000 in their annual liability insurance premium costs (4). It is important to realize that health/fitness facilities that have a comprehensive risk management plan and well-trained staff to properly carry out such a plan will likely have fewer medical emergencies (and subsequent litigation) and also may be able to contain (or lower) liability insurance premiums.
TIMEFRAME FOR STAFF TRAININGS
When new staff members are hired, health/fitness managers and professionals need to train them on how to properly carry out their many responsibilities. Training involving risk management policies and procedures should take top priority - nothing is more important than procedures that help increase the safety of participants. Once employed, staff members should be trained in those risk management policies and procedures for which they are directly responsible. For example, those directly responsible for preactivity health screening should be well trained on all aspects of the facility's policies and procedures in this area. Upon completion of initial staff training, managers must observe and evaluate newly hired staff members to determine if they are carrying out these procedures properly. If not, follow-up training may be necessary.
Many risk management procedures may be carried out by staff members on a regular basis (e.g., preactivity health screening, frequent inspections of exercise equipment, instruction/supervision of participants). Therefore, managers and professionals should be able to determine if staff members are properly carrying out these procedures through ongoing observation. However, for certain risk management procedures that do not occur on a regular basis (such as those related to medical emergencies), staff trainings may need to be periodically scheduled throughout the year. An ACSM and American Heart Association joint position paper recommends that emergency drills be practiced once every 3 months or more often if there are staff changes (1). These drills (or trainings) should include reviewing the procedures in the written Emergency Action Plan, conducting mock emergency situations, and completing incident report forms.
DOCUMENTATION OF STAFF TRAININGS
It is essential for health/fitness managers and professional to realize that failures in providing training to staff members in important safety procedures has been a somewhat frequent allegation made by plaintiffs in negligence lawsuits (2,3,8). Therefore, it is not only vital to conduct staff trainings, but to document the date the training occurred, those staff members in attendance, and the content covered and/or the skills practiced at the training. In a negligence claim/lawsuit, documentation of staff trainings can help prove that the health/fitness facility and its personnel properly carried out their duty to train staff members.
Because it is important that staff members know how to carry out risk management procedures, attendance at risk management staff trainings should be mandatory. Those who do not attend will need to be trained in a timely fashion if they miss any scheduled training. Records of attendance should be kept in each staff member's personal file and discussed/reviewed during performance appraisals.
Health/fitness managers should understand that they can be held liable for the negligent acts of the employees they supervise through a legal doctrine termed respondeat superior, which makes employers and principals potentially liable for the negligent acts/omissions of their employees or others under their supervision. Therefore, such managers should be highly motivated to help ensure that staff members properly carry out their risk management responsibilities (that often reflect potential legal duties). The best approach to accomplish this is through well-designed regular in-service trainings that help educate staff members in how to carry out their risk management responsibilities and why it is vital they do so.
We hope that our three articles on risk management have provided readers with helpful information to develop and implement a comprehensive risk management plan for health and fitness facilities. The next legal column will be combined with the Worksite Health Promotion column (written by JoAnn Eickhoff-Shemek, Ph.D., FACSM, FAWHP, and Nico Pronk, Ph.D., FACSM, FAWHP) to focus on the Health Insurance Portability and Accountability Act Final Rules that employer-sponsored health promotion programs must follow.
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. Capati vs. Crunch Fitness International et al
. Analyzed in: Herbert D.L. Update on litigation-Capati vs. Crunch Fitness
. The Exercise Standards and Malpractice Reporter 2001;15(4):56.
3. Chai vs. Sports & Fitness Clubs of America, Inc. Analyzed in: Failure to defibrillate results in new litigation.
The Exercise Standards and Malpractice Reporter 1999;13(4):55-6.
4. Cotten D. Minimizing legal liability for exercise programs. Presentation given at the 8th Annual ACSM Health & Fitness Summit & Exposition, Orlando, FL, April 2004.
5. Eickhoff-Shemek JM, Herbert DL, Connaughton DP. Introducing the risk management pyramid. ACSM's Health & Fitness Journal
6. Eickhoff-Shemek JM, Herbert DL, Connaughton DP. Building a comprehensive risk management plan: four essential steps. ACSM's Health & Fitness Journal
7. Eickhoff-Shemek JM, Herbert DL, Connaughton DP. Risk Management for Health/Fitness Professionals: Legal Issues and Strategies. Baltimore (MD): Lippincott Williams & Wilkins; 2009. 356-7 pp.
8. Makris vs. Scandinavian Health Spa, Inc., Ohio App. LEXIS 4416 (Ohio Ct. App., 1999)