Eickhoff-Shemek, JoAnn M. Ph.D., FACSM, FAWHP; Keiper, Margaret C. Ph.D.
The interest in high-intensity exercise programs such as high-intensity interval training (HIIT), P90X, and Insanity has increased tremendously in recent years. The topic of high-intensity exercise has been covered extensively at professional conferences such as ACSM’s Annual Meeting, ACSM’s Health & Fitness Summit & Exposition, and in the media (e.g., conducting a Google search on the topic of “high-intensity exercise” will bring up numerous articles published in a wide variety of media outlets). Studies that have investigated these types of high-intensity exercise programs — those that are performed in short periods — also referred to as extreme conditioning programs (ECPs) — have found that many health and fitness benefits can be achieved with this type of training (21). However, the lingering question is: do the benefits of ECPs outweigh any increased risks of injury as well as the litigation that may follow?
According to Bergeron et al. (5), empirical research is needed to determine if there is an increased risk of injury with these ECPs when compared with traditional exercise programs of low, moderate, or vigorous intensity. See Table 1 for levels of exercise intensity. Although not specific to ECPs, there is evidence that “vigorous” exercise can increase the risk of a cardiac event (acute myocardial infarction or sudden death) particularly among habitually sedentary persons and also in exercise-conditioned individuals (17). Therefore, it can be speculated that “high-intensity” exercise may increase these risks even more. Kohl and Murray (11) also discuss the causes of musculoskeletal injuries associated with physical activity and state that it is well demonstrated in the literature that, the more physical activity an individual performs, the higher the risks of musculoskeletal injuries.
TABLE 1: Exercise In...Image Tools
Anecdotal evidence of increased injury risks associated with ECPs does exist. In military settings, clinical observations of injuries such as torn ligaments, stress fractures, and exertional rhabdomyolysis (rhabdo), particularly among novice participants, have been reported at increasing rates as ECPs grow in their popularity (5). The number of cases of rhabdo among collegiate athletes also seems to be increasing according to an article published in the Journal of Athletic Training (7). In this consensus statement (7) that provided 10 recommendations to help end conditioning morbidity and mortality of athletes, the authors stated that “Excesses in strength training and conditioning — workouts that are too novel, too much, too soon, or too intense (or a combination of these) — have a strong connection to exertional rhabdomyolysis” (p. 477). Injuries that have resulted from high-intensity exercise programs also have led to negligence lawsuits as demonstrated in two cases discussed in this article: Rostai (14) and Proffitt (13). See Table 2 for a brief description of what occurred in each of these cases. The purpose of this article is to explain how the high-intensity exercise programs in these cases led to the injuries and subsequent litigations. Read the “Facts — What Happened” in Table 2 that describe the design of the high-intensity exercise programs that the fitness trainers had their clients perform in each of the two cases. These designs may be similar to the types of fast-growing high-intensity programs being offered in fitness facilities across the United States and throughout the world. Furthermore, this article aims to describe risk management strategies that the fitness trainers and facilities involved in these cases could have developed and implemented to prevent the injuries from occurring in the first place. But first, a brief explanation is needed on: (a) negligence and legal duties, (b) causes of injuries from a legal perspective, (c) the professional standard of care, and (d) defenses to negligence actions. Each of these topics is discussed with application to the high-intensity exercise programs in Rostai and Proffitt.
TABLE 2: Negligence ...Image Tools
NEGLIGENCE AND LEGAL DUTIES
In a negligence lawsuit, the plaintiff (injured party) has to prove that the defendant (fitness trainer and/or facility) had a duty, breached that duty, and that the breach of duty proximately caused the injury (9). Whether or not there is empirical evidence to show a link between high-intensity exercise and an increased risk of injury will not be a major factor that courts will consider when determining duty. The major factor will be the conduct (the behavior — inaction or improper action) of the fitness trainer, that is, whether the trainer’s conduct was consistent with the standard of care or the duty owed to the plaintiff. In negligence lawsuits, courts often rely on expert testimony when determining legal duties. Expert witnesses, who are most often experienced professionals with medical or doctoral degrees, educate the court as to what the duty was given the situation and whether or not, in their opinion, the defendant breached that duty. To support their expert opinion, they often introduce standards and guidelines published by highly regarded professional organizations within that field to help provide evidence of the duty owed to the plaintiff. If the court finds the defendant liable for negligence, the defendant likely will have to pay the plaintiff compensatory damages (e.g., costs associated with medical expenses, lost wages, pain, and suffering) and sometimes additional damages called punitive damages if found liable for gross negligence. The distinction between negligence (ordinary negligence) and gross negligence is explained next. Courts award punitive damages to punish the wrongdoer (defendant) for malicious or reckless conduct.
CAUSES OF INJURIES FROM A LEGAL PERSPECTIVE
Relevant to negligence, there are three major causes of injury that are listed below (9). An injury that results in a negligence lawsuit usually involves one of these three causes or a combination of them. For example, the plaintiff in Proffitt (13) claimed that his injuries were caused by both ordinary and gross negligence of the defendants.
There are three causes of injury in this context:
1. Inherent Risks: No one’s fault; the injuries just happen (inseparable from the activity); inherent risks (minor, major, life threatening, and death) exist in all fitness activities, and participants need to be informed of these risks before beginning an exercise program.
2. Negligence (or Ordinary Negligence): The fault of the fitness trainer and/or facility (e.g., failure to meet the standard of care because of “careless” conduct — inaction or improper action) and/or the fault of the participant (e.g., misuse of exercise equipment).
3. Gross Negligence: A type of fault that is more serious than ordinary negligence; also referred to as willful/wanton or reckless conduct (e.g., the defendant has prior knowledge of a risk/danger that has caused injuries and chooses to not take any steps to minimize that risk/danger); the risk of injury is clearly foreseeable.
It is important to note that sometimes a plaintiff may file a negligence lawsuit against a fitness trainer and the facility even when his or her injury was caused by inherent risks. If the evidence shows that the injury was indeed caused by inherent risks, it is unlikely that the plaintiff will be able to prove negligence and recover any damages. Generally, the law does not allow plaintiffs to recover damages for injuries caused by inherent risks because they assume these risks. However, if risks are “increased” over and above those inherent in the activity because of the conduct of the fitness trainer, plaintiffs may be able to prove that the fitness trainer and the facility were negligent, as demonstrated in cases even involving more traditional exercise programs (9). These “increased” risks are more obvious in ECPs, which can lead to a higher likelihood of negligence being proven because of the “high-intensity” design of the program alone. In addition, it is possible — as established in Profffit (13) — that injuries occurring in high-intensity programs can result in gross negligence claims. For example, plaintiffs may claim that the defendants had prior knowledge that participants had been injured in their programs and the defendants took no precautions to help prevent the injuries from reoccurring in the future.
THE PROFESSIONAL STANDARD OF CARE
According to van der Smissen (22), “if one accepts responsibility for giving leadership to an activity or providing a service, one’s performance is measured against the standard of care of a qualified professional for that situation (p. 40). “For that situation” is determined by reference to the following three factors:
1. Nature of the activity: The professional must be aware of the skills and abilities the participant needs to participate “safely” in the activity, for example, if these are complex or advanced, the professional must have the knowledge to apply these skills and abilities.
ECPs would be considered “complex and advanced” exercise programs compared with most traditional exercise programs and therefore to meet this factor, they should only be taught by fitness trainers who are fully aware of the skills and abilities a participant needs to perform these type of exercise programs safely. Given the fact that the fitness trainers in Rostai and Proffitt, failed to assess the fitness skills/abilities of their clients, it appears that they did not possess enough knowledge to design a simple beginner-level exercise program safely, let alone an advanced program.
2) Type of participants: The professional must be aware of individual factors of the participant, for example, health conditions that impose increased risks and know how to minimize those risks.
To meet this factor, fitness professionals that train individuals with medical conditions need to possess advanced certification and education in the exercise sciences such as a certification and academic course work in clinical exercise (23). Fitness trainers, like the one in Rostai, who do not have these advanced qualifications (and competencies) but train individuals with medical conditions anyway will likely not be able to meet the professional standard of care.
3) Environmental conditions: The professional must be aware of any conditions that may increase risks, for example, heat, humidity, slippery floor surfaces, and know how to minimize those risks.
To meet this factor, the professional needs to be aware of, understand, and be able to apply the latest scientific information. For example, the professional should be current on ways to prevent heat injuries. This would include being familiar with position papers published by professional organizations that describe specific precautions that need to be adhered to to minimize the risk of heat injuries. The environment also deals with properly maintaining exercise equipment and floor surfaces (there are many injuries in fitness facilities because of poor maintenance of equipment and floor surfaces) as well as enforcing policies that require participants to return equipment such as dumbbells and exercise balls to their storage racks to help prevent tripping accidents. Also, some ECPs use equipment that pose unusually high risks compared with more common types of equipment if the trainer and/or client is not familiar with the way to use them properly. Examples of such equipment are gymnastics rings and hanging ropes.
It is important to realize that expert witnesses often refer to these three factors in their testimony. Unfortunately, fitness trainers, like those in Rostai and Proffitt, probably do not realize that they will likely be held to the professional standard of care and what this all entails. Therefore, they unknowingly expose themselves to breaching their duties and professional standards of care.
DEFENSES TO NEGLIGENCE ACTIONS
Several legal defenses are available to defendants to refute or defend negligence claims/lawsuits. Two common defenses are (a) primary assumption of risk defense and (b) waiver defense. The primary assumption of risk is a legal doctrine that basically provides that individuals cannot recover for an injury they received when voluntarily exposing themselves to a known and appreciated danger (6). This defense applies to injuries caused by inherent risks not negligence. However, for it to be effective, the plaintiff must know, understand, and appreciate the inherent risks and voluntarily assume them. Courts will investigate several factors when determining whether or not this defense will protect the defendants. For example, one factor is the experience level of the plaintiff, for example, a novice will not be able to fully understand and appreciate all of the inherent risks until he or she has obtained enough experience. If a novice begins with a high-intensity program (an advanced program), this defense will likely not apply because the novice does not understand and appreciate the inherent risks associated with beginning an exercise program — let alone an advanced program. Another factor is the nature of the activity, for example, courts have ruled that the primary assumption of risk will likely apply to sports programs but perhaps not exercise programs. In Santana v. Women’s Workout and Weight Loss Centers, Inc. (15), the court stated that sports by their nature inherently create extreme risks of injuries because of “elements like physical contact between participants…or competition aimed at scoring points, racing against time, or accomplishing feats of speed, strength, agility, and grace” (pp. 25, 26). The court also stated that because exercise programs are designed to enhance health and fitness, they should not be designed to create extreme risks of injury. For example, the primary assumption of risk might be effective for competitions such as marathons but may not be effective for general high-intensity exercise programs such as HIIT and P90X. In Santana, the fitness instructor’s conduct increased the risks of injury over and above those inherent in the activity and therefore the assumption of risk defense was not effective in protecting the defendants. Therefore, it is likely this defense will not be effective with high-intensity exercise programs because of the intentional design of the program as well as the conduct of the fitness trainers who have their participants work out at levels that can create “increased risks” of injury.
The second common defense against negligence is a waiver. A waiver (prospective release) is a contract signed by an individual before participation that absolves (protects) the defendants (e.g., fitness trainer and facility) from their own negligence. Waivers can be an effective defense for “ordinary” negligence; however, they are against public policy in certain states (8). For example, there is a long-held ruling of the Virginia Supreme Court that waivers are unenforceable for personal injury because they are against public policy. The legality of waivers is based on individual state laws and, therefore, fitness trainers and managers need to consult with a competent lawyer in their jurisdiction before considering the use of waivers in their programs. It also is important to realize that waivers do not protect against gross negligence claims (8) like those made by the plaintiff in Proffitt. When a plaintiff claims that the defendants were grossly negligent, he or she will seek punitive damages in addition to compensatory damages.
It is essential for fitness trainers and facilities to have adequate liability insurance. If they are found liable for damages in a negligence case, the insurance provider is obligated to pay out the damages up to the limits of the policy (9). Fitness managers need to be sure that their “general” liability insurance policies cover high-intensity exercise programs. If not, additional coverage should be purchased. Fitness managers also should require their fitness trainers to purchase “professional” liability insurance or provide it for them. If liability insurance to cover high-intensity exercise programs cannot be obtained or is cost-prohibitive, the facility should not offer these programs. It also is important to realize that liability insurance covers compensatory damages but does not cover punitive damages for gross negligence (9).
Purchasing liability insurance and having participants sign a waiver are effective risk management strategies but are only protective after an injury has occurred. They do nothing to enhance safety or help prevent injuries. Developing and implementing strategies that help minimize injuries should be the main risk management focus of fitness trainers and managers. To begin this process, it is necessary to first obtain an understanding of the many legal liability exposures that exist in fitness programs.
LEGAL LIABILITY EXPOSURES
All fitness programs are subject to numerous legal liability exposures across seven different areas, as shown in Figure 1. Fitness trainers and managers have many potential legal duties in each of these areas, and the failure to carry out these duties is what creates legal liability exposures — situations that create a risk of injury that can lead to negligence claims and/or lawsuits. However, there also are many effective risk management strategies that can be developed and implemented to minimize legal liability exposures. The many legal liability exposures that exist in each of the seven areas and corresponding risk management strategies have been presented elsewhere (9). Readers of this Journal also can obtain an appreciation of how legal liability exposures can lead to injuries and litigation by reading two recent legal columns by Anthony A. Abbott, Ed.D., FACSM (1,3). As a nationally known and highly respected expert witness, Dr. Abbott describes many cases in which he served as an expert witness as well as the facts, issues, and outcomes of several negligence cases that are, unfortunately, all too common in the fitness field. The following will focus on the legal liability exposures specific to the Rostai and Proffitt cases and risk management strategies that could have minimized these liability exposures.
LEGAL LIABILITY EXPOSURES IN ROSTAI AND PROFFITT
Specific legal liability exposures that led to the injuries in these cases will be discussed under two general legal liability exposures that were evident across the two cases: (a) the program did not have “qualified” and “competent” fitness trainers leading the exercises, and (b) the program design did not incorporate recognized and accepted practices for safe and effective exercise. Although not stated in the evidence presented in these cases, it appears that the fitness trainers were not qualified (e.g., did not possess any credentials such as a degree or certification) in the exercise sciences.
Whether or not a fitness trainer possesses certain credentials is a factor courts will consider in negligence cases; however, a much more important factor will be whether or not the trainer was competent, that is, did his or her conduct breach a duty or not. The lack of competence of the fitness trainers was evident in both cases. Neither of the trainers (a) conducted preactivity health screening to determine if medical clearance was warranted; (b) performed a fitness assessment to ascertain initial fitness levels and abilities; (c) understood how to design and implement a proper workout for deconditioned novice exercisers such as knowing how to properly apply a basic safety principle of exercise called progression; (d) realized that signs and symptoms of overexertion can lead to serious consequences such as rhabdo or a heart attack, especially if strenuous exercise continues; and (e) granted the repeated requests for a break made by their clients during the workout and instead pushed them more and more above their limits. Any expert witness would easily be able to demonstrate that failures like these constitute breaches of duties or professional standards of care and caused the injuries to the plaintiffs. It is interesting to point out, perhaps, why the clients in these cases did not question their trainer when they were continually pushed above their limits or why they just did not stop on their own. A likely answer to this is that they trusted and relied on their trainer as an expert and assumed he knew what he was doing and, therefore, would certainly not do anything to injure them. Also, novices will not know what to expect from an exercise program and, as stated above, will not know, understand, and appreciate the risks and what precautions to take to minimize the risks.
Although the lack of formal education and training in the exercise sciences probably contributed significantly to the incompetence of the trainers in these cases, it is important to realize that just because someone is qualified (e.g., possesses a degree, certification), this does not necessarily mean that he or she is competent. In addition to increases in cases of rhabdo occurring during strength and conditioning workouts among collegiate athletes, the article cited above also stated that a total of 21 National Collegiate Athletic Association (NCAA) football players had died since 2000 during conditioning workouts, and 75% of these deaths were Division I players (7). It is likely that these programs have qualified strength and conditioning coaches with degrees and professional certifications in exercise science. Despite their qualifications, the conduct/competence of these strength and conditioning coaches comes into question when serious injuries and deaths occur that could have been prevented by implementing proper training methods and precautions, even when training elite athletes. Of the 21 reported deaths of NCAA football players, 11 of them occurred during day 1 or day 2 workouts (7), and the injuries suffered by Rostai and Proffitt occurred on their first day of training. Therefore, progression is a critical principle of safe and effective exercise that should be well understood and applied by all fitness professionals no matter what population they are training.
The design of the high-intensity exercise programs in these cases clearly did not meet accepted and recognized practices of safe and effective exercise. First, all exercise programs should have new participants complete preactivity screening procedures (12). If an individual is classified as “at risk” (e.g., has risk factors, medical conditions) — as Rostai would have been because he had several cardiovascular risk factors — then medical clearance should be obtained. With high-intensity exercise programs, medical providers who complete and sign the medical clearance form need to know that they are clearing their patient for this type of exercise. Therefore, the clearance form should contain a section where this can be indicated (Figure 2). It is unlikely that the participants in these two cases would have been medically cleared for high-intensity exercise given that they were deconditioned novice exercisers. Program design problems also were evident from the training methods used by the fitness trainers in these cases, for example, performing maximal or near-maximal exercises in short periods with little or no rest intervals is not consistent with safe training principles, at least not for the plaintiffs in these cases. Evidence that has helped demonstrate that a program design is inappropriate has included publications such as the ACSM Position Stand (4): Progression Models in Resistance Training for Healthy Adults.
Plaintiffs often claim that they were not warned of known risks and dangers inherent in a program and, if they had been, they would not have participated. Participants in all fitness programs need to be informed of the inherent risks that can lead to all types of injuries — minor (e.g., sprains and strains), major (e.g., fractures), life threatening (e.g., heart attack, rhabdo), and even death (9). These inherent risks should be described in a written document that is signed by the participant before participation, for example, an informed consent or express assumption of risk (9). It may be wise to include in these documents, with the advice of legal counsel, a clause that explicitly states that the probability of these types of injuries occurring is greater in high-intensity programs than in lower-intensity programs. Documents like these may “strengthen” the primary assumption of risk defense but, as described above, several other factors are considered to determine whether or not this defense will be effective in protecting the defendants from liability.
It is likely that the injuries in these two cases could have been prevented by developing and implementing effective risk management strategies that is a major responsibility of all fitness managers. To be successful as a risk management manager, fitness managers first need to become aware of the many legal liability exposures that exist in traditional fitness programs and, if offering high-intensity exercise programs, the additional liability exposures that can be created with these programs. They also need to be aware of important risk management strategies to minimize these legal liability exposures.
Risk management strategies that need to be addressed specifically in high-intensity programs include (a) the need for trainers to be well qualified (e.g., possess advanced knowledge, skills, and experience in the exercise sciences) because these types of programs would be considered advanced, not beginner level; (b) the need to conduct preactivity screening and obtain medical clearance specifically for high-intensity exercise for individuals who are “at risk” and if they are not cleared, they should not participate in these programs; and (c) the need for trainers to be competent, for example, know how to apply basic exercise principles like progression that are based on well-established standards and respond properly if signs and symptoms of overexertion occur. Therefore, it is essential for managers to obtain formal education and training in the exercise sciences and legal/risk management areas; however, many lack knowledge and skills in these areas (2). This lack of knowledge and skills can lead to poor decision making when it comes to the safety of participants.
NEED FOR EDUCATION: EXERCISE SCIENCES AND LEGAL/RISK MANAGEMENT
Because employers of fitness facilities can be held liable for the negligent acts of their employees through a legal doctrine called respondeat superior, they have a vested interest to hire only qualified and competent fitness trainers. In Rostai (14) and Proffitt (13), the facility (employer) was named as a defendant along with the fitness trainer because of this legal doctrine. Therefore, fitness managers need to be able to distinguish the well-recognized certifications from the so-called fly-by-night certifications when it comes to hiring trainers. Although many in the general public cannot make this distinction because they believe that a “certified” fitness trainer is a qualified and competent trainer, it does not excuse managers from not being able to make this distinction. Many certifications do not require any formal education such as classroom instruction in the exercise sciences along with an internship that provides meaningful real-world practical experiences before sitting for the examination. In addition, most examinations do not require any practical component to evaluate the competence of the candidate. Formal education is the best approach to prepare qualified and competent fitness trainers. Therefore, managers who are truly concerned about the safety of their participants and want to minimize one of the most significant legal liability exposures they face — unqualified and incompetent fitness trainers — they would require and/or provide formal education for their fitness trainers. It may be that fitness trainers who have a degree in exercise science will need formal, supervised, and evaluated practical experiences to become competent if their academic program did not provide this important component of formal education adequately.
In addition to formal education in the exercise sciences, all fitness trainers and managers should be well educated in the area of legal liability and risk management. They should be aware of the many legal liability exposures that exist in the seven areas (Figure 1) and the risk management strategies to minimize them. To develop knowledge and skills in this area, formal education is again needed. Academic programs — both undergraduate and graduate — should have a required course devoted to these topics but, unfortunately, it often is not addressed adequately in most programs (9). The educational content associated with certification programs also should include legal and risk management knowledge and skills that candidates need to obtain before taking the certification examinations as the ACSM certifications do, for example, specific learning domains such as Domain IV (Legal/Professional) and Domain V (Management) that includes risk management recently were established for the ACSM Certified Health Fitness SpecialistSM (12).
A NEED TO FOCUS ON INJURY PREVENTION
According to a U.S. Centers for Disease Control and Prevention (CDC) report — CDCs Injury Research Agenda 2009–2018 (19) — about 11,000 persons per day receive treatment in U.S. emergency departments for injuries because of sport, recreation, and exercise. It is unknown how many of these are “exercise” injuries and, out of those, how many are caused by high-intensity exercise. However, data from the U.S. Consumer Product Safety Commission’s National Electronic Injury Surveillance System have shown that injuries associated with exercise are increasing (18). Between 2010 and 2012, injuries related to exercise and exercise equipment increased from 382,970 to 459,978 — a 20% rise (18). Perhaps the number of injuries is increasing because more people are exercising except this explanation is not supported from recent reports that have shown little progress toward meeting federal guidelines to increase physical activity (10). The CDC report (19) states that injuries are a leading reason individuals stop participating in physical activity and that one of its major research goals is to investigate ways to minimize injury risks among people who are beginning or increasing physical activity.
One strategy to meet this national goal to minimize injury risks is for fitness trainers and managers to provide safe and effective programs for their participants. With regard to high-intensity exercise, special attention to safety needs to be made given the potential “increased risks” of injuries and the tremendous growth and popularity of these programs. For some Americans who are healthy, fit, and want to cut their exercise time to 20 minutes a day versus following the U.S. Guidelines for Physical Activity (20), which recommend lower intensity levels and longer duration, high-intensity programs may not impose greater risks of injuries.
However, many Americans may not realize the “increased risks” of injury these programs can create especially if they are not informed of these risks by their fitness trainers and managers. Many Americans have medical conditions and cardiovascular risk factors, not to mention being unfit. These individuals should not participate in high-intensity exercise programs until they have been cleared medically and have obtained a fitness level high enough to tolerate strenuous workouts safely. These two recommendations alone could help decrease the injury risks associated with these programs. Related to injuries, it is unknown if there’s an increased risk of injury in individuals who sustain these high-intensity exercise programs during a long period. Longitudinal studies are needed to answer this question.
BRIDGING THE GAP
All fitness trainers and managers have legal duties toward their participants, with an overall duty to provide “reasonably safe” programs — meaning, taking steps to develop and implement risk management strategies to help prevent injuries from occurring. To minimize injuries and the litigation that often follows, fitness trainers and managers first need to learn the many legal liability exposures (situations that create a risk of injury) that exist in fitness programs and specific risk management strategies that can minimize them. Because high-intensity exercise programs can create an “increased risk” for injuries, it is likely that participants will continue to be injured and subsequently file negligence claims/lawsuits against the fitness trainers and managers, unless steps are taken to minimize the increased risks. The high costs associated with litigation, alone, should be an incentive to minimize legal liability exposures; however, taking steps to help ensure the safety of participants should be the main reason. After all, the number one responsibility of all fitness professionals is the safety of their participants.
© 2014 American College of Sports Medicine.