© 2006 mcgraw-hill higher education. all rights reserved. athletic training management chapter 7...

© 2006 McGraw-Hill Higher Education. All rights © 2006 McGraw-Hill Higher Education. All rights reserved. reserved.

Athletic Training ManagementAthletic Training Management

Chapter 7Chapter 7

Athletic Training PracticeAthletic Training Practice


The ProfessionThe Profession Athletic training has the following Athletic training has the following

content domains identified by the content domains identified by the BOC:BOC:• preventionprevention• recognition, evaluation, and assessmentrecognition, evaluation, and assessment• immediate careimmediate care• treatment, rehabilitation, and treatment, rehabilitation, and

reconditioningreconditioning• organization and administrationorganization and administration• professional development and professional development and

responsibilityresponsibility


The ProfessionThe Profession

Athletic training is regulated in 44Athletic training is regulated in 44

states, all except CA, WA, AK, MD, states, all except CA, WA, AK, MD, WV, and MTWV, and MT

Regulation is in the form of Regulation is in the form of • LicensureLicensure• RegistrationRegistration• CertificationCertification• ExemptionExemption



For licensure a person must meet For licensure a person must meet specific qualifications and pass an specific qualifications and pass an examinationexamination• Frequently states will purchase the Frequently states will purchase the

results of the BOC exam for content and results of the BOC exam for content and then have the candidate pass a state then have the candidate pass a state rules exam rules exam

• Upon being licensed, the athletic trainer Upon being licensed, the athletic trainer is subject to state laws and rules of the is subject to state laws and rules of the practice actpractice act



State practice acts supercede the BOC direct State practice acts supercede the BOC direct service and service program standardsservice and service program standards

Athletic training is the ONLY allied health Athletic training is the ONLY allied health profession in some states to define the profession in some states to define the population that may be patientspopulation that may be patients

Failure to follow the law or practice act will Failure to follow the law or practice act will subject a person to practicing without a subject a person to practicing without a license, usually a misdemeanor punishable by license, usually a misdemeanor punishable by a fine and/or jail up to 90 days, depending on a fine and/or jail up to 90 days, depending on the jurisdictionthe jurisdiction



Medical practice acts not only specify what Medical practice acts not only specify what you cannot do, but also what you can do, you cannot do, but also what you can do, thereby limiting your ability to practice some thereby limiting your ability to practice some things, again depending on the jurisdictionthings, again depending on the jurisdiction

Registration is a credential where the Registration is a credential where the athletic trainer possesses certain athletic trainer possesses certain qualifying criteria, pays a fee, and is qualifying criteria, pays a fee, and is put on a list of those allowed to put on a list of those allowed to practicepractice



• The biggest problem is that there is no The biggest problem is that there is no practice act identifying what you can practice act identifying what you can and cannot do, possibly allowing and cannot do, possibly allowing confusing crossover with another confusing crossover with another profession’s practice actprofession’s practice act

Certification is where an athletic Certification is where an athletic trainer presents a minimum set of trainer presents a minimum set of credentials and then takes a STATE credentials and then takes a STATE examination (different from the BOC examination (different from the BOC exam)exam)



• There is no title protection, that is There is no title protection, that is anyone can claim to be an athletic anyone can claim to be an athletic trainer (but not a state-certified athletic trainer (but not a state-certified athletic trainer)trainer)

• Certification can restrict the application Certification can restrict the application of specific processes to those certified of specific processes to those certified by the stateby the state

Exemption is a status removing an Exemption is a status removing an athletic trainer from another athletic trainer from another profession’s practice act, usually PTprofession’s practice act, usually PT



In those states with no regulation, In those states with no regulation, other profession’s practice acts may other profession’s practice acts may limit what you can dolimit what you can do

To date, no athletic trainer in a To date, no athletic trainer in a college, high school, or professional college, high school, or professional setting has ever been accused of setting has ever been accused of practicing another allied profession practicing another allied profession in one of these statesin one of these states


The ProfessionThe Profession In noncredentialled states, the BOC In noncredentialled states, the BOC

exam is the recognized credential to exam is the recognized credential to practicepractice


Fair Labor Standards ActFair Labor Standards Act

In April 2004 the US Department of In April 2004 the US Department of Labor Wage and Hour Division Labor Wage and Hour Division published Regulation 29 CFR Part published Regulation 29 CFR Part 541 541 • Section 541.301 (8) states that athletic Section 541.301 (8) states that athletic

trainers who have completed 4 years of trainers who have completed 4 years of pre-professional and professional study pre-professional and professional study in an accredited education program and in an accredited education program and passed the BOC exam generally meet passed the BOC exam generally meet the duties requirements for learned the duties requirements for learned professionsprofessions


Fair Labor Standards ActFair Labor Standards Act

• There have been two major court cases There have been two major court cases (Winkle v. Hutchinson Community (Winkle v. Hutchinson Community College and Owsley, et al., v. San College and Owsley, et al., v. San Antonio Intermediate School District)Antonio Intermediate School District)

Found for the defendants on the Found for the defendants on the basis that athletic trainers used basis that athletic trainers used discretion and independent judgment discretion and independent judgment thereby making them ineligible for thereby making them ineligible for the overtime provisions of the the overtime provisions of the Federal Fair Labor Standards ActFederal Fair Labor Standards Act


STANDARD OF CARE AND STANDARD OF CARE AND SCOPE OF PRACTICESCOPE OF PRACTICE

The practice of medicine is unlimited when The practice of medicine is unlimited when done by allopathic (MD) or osteopathic done by allopathic (MD) or osteopathic (DO) physicians(DO) physicians

Each state has its own definition, such as:Each state has its own definition, such as:• In Michigan the practice of medicine means the In Michigan the practice of medicine means the

“diagnosis, treatment, prevention, cure, or relieving “diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts.”oneself out as able to do, any of these acts.”


STANDARD OF CARESTANDARD OF CARE All others in medicine have a limited scope All others in medicine have a limited scope

of practice, that is subordinate to MD/DOsof practice, that is subordinate to MD/DOs For the most part, diagnosis as done by a For the most part, diagnosis as done by a

physician, surgery, and prescribing, physician, surgery, and prescribing, especially medications, are forbidden to all especially medications, are forbidden to all but physiciansbut physicians

Allied professionals have the freedom to Allied professionals have the freedom to apply their knowledge, but within a narrow apply their knowledge, but within a narrow scope of practice. scope of practice. • Athletic trainers may not perform surgery.Athletic trainers may not perform surgery.• Physical therapists may not reduce dislocations Physical therapists may not reduce dislocations

and prescribe pain medications.and prescribe pain medications.


STANDARD OF CARESTANDARD OF CARE

Standard of careStandard of care is the level of the is the level of the duty that is owed to the patientduty that is owed to the patient• Standard of care was founded in Standard of care was founded in

reasonable and prudent persons reasonable and prudent persons performing a task and varies with performing a task and varies with medical sophistication and competency medical sophistication and competency that must be demonstrated by someone that must be demonstrated by someone who has similar education and trainingwho has similar education and training

• This standard is now the minimal level This standard is now the minimal level expected of a reasonable sports expected of a reasonable sports medicine professionalmedicine professional


STANDARD OF CARESTANDARD OF CARE• It must be sufficient to protect the It must be sufficient to protect the

patient from foreseeable risk of patient from foreseeable risk of unreasonable harm unreasonable harm

• In the area of sports medicine the In the area of sports medicine the standard of care is somewhat difficult to standard of care is somewhat difficult to establish due to the large number of establish due to the large number of medical and allied health professionals medical and allied health professionals caring for athletes caring for athletes

• Due to the general lack of uniform Due to the general lack of uniform athletic trainer practice legislation what athletic trainer practice legislation what is accepted practice in one state may be is accepted practice in one state may be forbidden in anotherforbidden in another



• The Ohio licensure law (Ohio Rev. Code The Ohio licensure law (Ohio Rev. Code §4755.60–4755.65) specifies that §4755.60–4755.65) specifies that athletic training is the practice of athletic training is the practice of prevention, recognition, and assessment prevention, recognition, and assessment of an athletic injury and the complete of an athletic injury and the complete management, treatment, disposition, management, treatment, disposition, and reconditioning of acute athletic and reconditioning of acute athletic injuries injuries upon referral of an individual upon referral of an individual authorizedauthorized under other sections of the under other sections of the law. There is no distinction requiring a law. There is no distinction requiring a physician prescription for modality use physician prescription for modality use


STANDARD OF CARESTANDARD OF CARE The Georgia law (43-5-1-(2))defines it thuslyThe Georgia law (43-5-1-(2))defines it thusly

• 'Athletic trainer' means a person with specific 'Athletic trainer' means a person with specific qualifications, as set forth in Code Section 43-5-8 qualifications, as set forth in Code Section 43-5-8 who, upon the advice and consent of a physician, who, upon the advice and consent of a physician, carries out the practice of prevention, recognition, carries out the practice of prevention, recognition, evaluation, management, disposition, treatment, evaluation, management, disposition, treatment, or rehabilitation of athletic injuries; and, in or rehabilitation of athletic injuries; and, in carrying out these functions, the athletic trainer is carrying out these functions, the athletic trainer is authorized to use physical modalities, such as authorized to use physical modalities, such as heat, light, sound, cold, electricity, or mechanical heat, light, sound, cold, electricity, or mechanical devices related to prevention, recognition, devices related to prevention, recognition, evaluation, management, disposition, evaluation, management, disposition, rehabilitation, and treatment. The term 'athletic rehabilitation, and treatment. The term 'athletic trainer' shall not include any student, teacher, or trainer' shall not include any student, teacher, or other person who serves as an athletic trainer for other person who serves as an athletic trainer for an elementary school or high school, either public an elementary school or high school, either public or private, within this state.or private, within this state.



There are over 30,000 standards There are over 30,000 standards statements that come from a variety statements that come from a variety of sourcesof sources• OSHAOSHA• Americans with Disabilities ActAmericans with Disabilities Act• Drug Enforcement AgencyDrug Enforcement Agency• Title IX of the Federal Education Title IX of the Federal Education

Amendments of 1972Amendments of 1972• Civil Rights Act of 1964Civil Rights Act of 1964• BOCBOC


STANDARD OF CARESTANDARD OF CARE BOC has thirteen standards divided into two BOC has thirteen standards divided into two

groupsgroups• Practice standards essential practice expectations Practice standards essential practice expectations

for all athletic trainers. Compliance with the for all athletic trainers. Compliance with the Standards is mandatory Standards is mandatory

• Code of Professional Responsibility includes Code of Professional Responsibility includes responsibility to the patient, the profession, responsibility to the patient, the profession, competency, social responsibility, research and competency, social responsibility, research and business practicesbusiness practices

These statements help to establish the These statements help to establish the minimal requirements of action for minimal requirements of action for practicing athletic trainerspracticing athletic trainers



• Other standards come from the NCAA, Other standards come from the NCAA, the American Medical Association and the American Medical Association and the American Athletic Trainers the American Athletic Trainers AssociationAssociation

• Webster, Mason, and Keating completed Webster, Mason, and Keating completed Guidelines for Professional Practice in Guidelines for Professional Practice in Athletic TrainingAthletic Training, 1992, which was , 1992, which was intended to develop written procedures intended to develop written procedures with which to judge a person’s standard with which to judge a person’s standard of conduct in relation to the standard of of conduct in relation to the standard of carecare


STANDARD OF CARESTANDARD OF CARE Courts have shown a willingness to Courts have shown a willingness to

distinguish between ‘standards’ and distinguish between ‘standards’ and ‘guidelines’‘guidelines’

Where employees violate nationally Where employees violate nationally published standards, the company may have published standards, the company may have ‘vicarious’ liability‘vicarious’ liability

• The standard of care established for The standard of care established for athletic trainers has been elevated in athletic trainers has been elevated in court to the level of a physician at least court to the level of a physician at least one time (one time (Gillespie v. Southern Utah Gillespie v. Southern Utah State College, 669 P 2State College, 669 P 2ndnd 861 (Utah 1983 861 (Utah 1983))



The plaintiff sprained an ankle and was told The plaintiff sprained an ankle and was told to use ice, 20 min on, 2 hrs off. The plaintiff to use ice, 20 min on, 2 hrs off. The plaintiff felt if a little was good, more was better and felt if a little was good, more was better and left it on indefinitely. Due to frostbite, part of left it on indefinitely. Due to frostbite, part of his foot was amputated. The court held the his foot was amputated. The court held the AT to the physician standard of care and AT to the physician standard of care and then found for the defendant since the AT then found for the defendant since the AT met the physician standard.met the physician standard.

• If the courts hold an AT to that standard, If the courts hold an AT to that standard, they will bring in physicians to be the they will bring in physicians to be the experts, not ATsexperts, not ATs


TortTort

TortTort law involves legal wrong done by a law involves legal wrong done by a person upon the person or property of person upon the person or property of another and for which the courts provide another and for which the courts provide some remedy, usually in the form of some remedy, usually in the form of monetary damagemonetary damage

This action is civil and must be filed by the This action is civil and must be filed by the wronged party against the person wronged party against the person committing the wrong in a court committing the wrong in a court proceedingproceeding


TortTort There has been a steady increase in There has been a steady increase in

tort actions in the recent pasttort actions in the recent past• Langley and Hawkins suggested that Langley and Hawkins suggested that

possible reasons for this increase possible reasons for this increase include: include:

insurance shortfallsinsurance shortfalls• Insurance does not cover the cost of the injuryInsurance does not cover the cost of the injury

the right to suethe right to sue• More awarenessMore awareness

the doctrine of entitlementthe doctrine of entitlement• When a jury sees someone injured, they think When a jury sees someone injured, they think

someone must paysomeone must pay


TortTort settlementssettlements

• Defendants weigh the cost of paying vs defendingDefendants weigh the cost of paying vs defending the myth of being risk freethe myth of being risk free

• Because everything is safe the athlete does not Because everything is safe the athlete does not do everything they can to protect themselvesdo everything they can to protect themselves

• There is a misperception that professionals do not There is a misperception that professionals do not understand the participants lack of understanding understand the participants lack of understanding of risk so they do not tell all about the risksof risk so they do not tell all about the risks

• Two definitions are important hereTwo definitions are important here First undertaking a First undertaking a professionprofession and states and states

that professionals have a duty to exercise that professionals have a duty to exercise the skills and knowledge normally employed the skills and knowledge normally employed by members of the profession to prevent by members of the profession to prevent unreasonable risk of harm to othersunreasonable risk of harm to others


TortTort

Second is a definition of Second is a definition of negligencenegligence, which states that , which states that negligent conduct can either be an act of commission negligent conduct can either be an act of commission that invades the interests of another or an act of that invades the interests of another or an act of omission where another is injured by failing to act when omission where another is injured by failing to act when there was a duty to actthere was a duty to act

• To understand negligence you need to To understand negligence you need to understand two other definitionsunderstand two other definitions

When someone is injured society has determined that When someone is injured society has determined that person has the right to be made whole person has the right to be made whole

Fault is a concept designed to assign the blame for Fault is a concept designed to assign the blame for injury to a defect in judgment or conduct by someone injury to a defect in judgment or conduct by someone who is responsible for the safety of those under their who is responsible for the safety of those under their care care


TortTort LiabilityLiability is the responsibility for actions that is the responsibility for actions that

cause harm to otherscause harm to others• Liability can be due to any number of reasons, among Liability can be due to any number of reasons, among

them negligence, failure to inform, breach of contract, or them negligence, failure to inform, breach of contract, or assault and batteryassault and battery

• More than one person may be responsible for injuryMore than one person may be responsible for injury Vicarious liability Vicarious liability is where an employer is deemed is where an employer is deemed

responsible for the actions of its employeesresponsible for the actions of its employees Vicarious liability can be either personal or Vicarious liability can be either personal or

institutionalinstitutional Where the liability is personal, the employer is held Where the liability is personal, the employer is held

responsible due to negligent hiring, retention, lack of responsible due to negligent hiring, retention, lack of supervision, lack of adequate training, etc.supervision, lack of adequate training, etc.

Where the liability is institutional the employee is Where the liability is institutional the employee is acting as the agent of the employeracting as the agent of the employer


TortTort• When a person has been injured in our When a person has been injured in our

society, the person causing the injury is society, the person causing the injury is usually forced to compensate the injured usually forced to compensate the injured person, most often by paying damages to person, most often by paying damages to make the injured person wholemake the injured person whole

• Damages may be actual damages, Damages may be actual damages, speculative damages, and/or punitive speculative damages, and/or punitive damagesdamages

Actual damages Actual damages include the costs of treating include the costs of treating the injury, rehabilitation, lost wages, and any the injury, rehabilitation, lost wages, and any modifications that must be made in the modifications that must be made in the persons living arrangements due to the injurypersons living arrangements due to the injury


TortTort Speculative damages Speculative damages asks the jury to asks the jury to

determine future and how earning capacity has determine future and how earning capacity has been effected by the injury. Third parties such as been effected by the injury. Third parties such as spouses may also request speculative damages. spouses may also request speculative damages. One common area here is loss of consortium One common area here is loss of consortium (loss of the comforts of marriage including sexual (loss of the comforts of marriage including sexual relations between a husband and wife)relations between a husband and wife)

Punitive damages are to punish the causing person so as to see the causing factors will not happen again

Punitive damages also serve as a warning to others who may be currently behaving in a similar manner to the cause of the injury

These damage awards are tax free


MalpracticeMalpractice

The most common legal problem The most common legal problem faced by physicians is malpracticefaced by physicians is malpractice• Individual state laws will determine Individual state laws will determine

whether an athletic trainer can be sued whether an athletic trainer can be sued for negligence or malpracticefor negligence or malpractice

• MalpracticeMalpractice is a liability where there is is a liability where there is an unfavorable outcome of patient–an unfavorable outcome of patient–practitioner interactionpractitioner interaction

• Usually shorter statute of limitations Usually shorter statute of limitations than for negligencethan for negligence


MalpracticeMalpractice

• Some state malpractice laws define the Some state malpractice laws define the specific job classifications that can be sued for specific job classifications that can be sued for malpracticemalpractice

• Other states refer to “healthcare providers” Other states refer to “healthcare providers” when assessing who is subject to their medical when assessing who is subject to their medical malpractice lawmalpractice law

• In six jurisdictions (Alaska, New Hampshire, In six jurisdictions (Alaska, New Hampshire, West Virginia, New Jersey, District of Columbia, West Virginia, New Jersey, District of Columbia, and Puerto Rico) there are no malpractice lawsand Puerto Rico) there are no malpractice laws

proceedings are brought under negligence laws proceedings are brought under negligence laws


NegligenceNegligence

To prove negligence four factors To prove negligence four factors must be shown:must be shown:• Duty to actDuty to act

standards and guidelines statements standards and guidelines statements previously mentioned are often used in legal previously mentioned are often used in legal proceedings to establish the duty to actproceedings to establish the duty to act

Athletic trainers who witness unsafe playing Athletic trainers who witness unsafe playing conditions, see an athlete injured, or follow conditions, see an athlete injured, or follow up with rehabilitation and reevaluation have up with rehabilitation and reevaluation have the duty to perform the domains of athletic the duty to perform the domains of athletic training while doing no harmtraining while doing no harm



• Breach of that dutyBreach of that duty the standard of care has been violatedthe standard of care has been violated Breach of duty may generally fall within three areasBreach of duty may generally fall within three areas

• PreventionPrevention• Standard of careStandard of care• Disclosure Disclosure

• CausationCausation the determination that the actions led to damage and the determination that the actions led to damage and

to what extent the person was responsible for the to what extent the person was responsible for the damage causeddamage caused

requires the action of the athletic trainer to have requires the action of the athletic trainer to have been been foreseeableforeseeable as a cause of damage as a cause of damage

results that are unforeseen by a reasonable and results that are unforeseen by a reasonable and prudent athletic trainer are forgiven under this testprudent athletic trainer are forgiven under this test



Athletic trainers must carefully supervise Athletic trainers must carefully supervise student athletic trainers, because student athletic trainers, because incompetent actions of student athletic incompetent actions of student athletic trainers have been found liable as a breach trainers have been found liable as a breach of the standard of careof the standard of care

• O’Brien v. Township High School District O’Brien v. Township High School District (1980) (1980) where an athletic trainer assigned a student to where an athletic trainer assigned a student to debrede a wound suffered by an athlete off debrede a wound suffered by an athlete off campus (therefore not athletic related)campus (therefore not athletic related)

• It became infected and required hospital It became infected and required hospital treatment – practicing medicine without a license treatment – practicing medicine without a license and civil action against the staff athletic trainerand civil action against the staff athletic trainer



• Damage Damage the athletic trainer’s conduct (act of the athletic trainer’s conduct (act of

omission or act of commission) must be omission or act of commission) must be proven to have caused the plaintiff to suffer proven to have caused the plaintiff to suffer damagedamage

• Where there is no damage, there is no Where there is no damage, there is no negligence, even if the athletic trainer acted negligence, even if the athletic trainer acted improperlyimproperly

• The courts have found that no person is able to The courts have found that no person is able to prevent harm that is completely unforeseeable or prevent harm that is completely unforeseeable or for which the risk is so small that it is usually for which the risk is so small that it is usually disregardeddisregarded


NegligenceNegligence When assessing the standard of care for professionals, When assessing the standard of care for professionals, Blond’s Blond’s

TortsTorts lists seven criteria: lists seven criteria: • Locality rule.Locality rule. There is a duty to follow the standards of the There is a duty to follow the standards of the

profession as it is practiced locally.profession as it is practiced locally.• Success is not guaranteed.Success is not guaranteed. The only requirement is for the The only requirement is for the

professional to act with a fundamental level of skill.professional to act with a fundamental level of skill.• Differing schools of thought.Differing schools of thought. Where professionals may reasonably Where professionals may reasonably

differ, a person may choose any reasonably acceptable method.differ, a person may choose any reasonably acceptable method.• Specialists.Specialists. Specialists are held to a higher standard of care than Specialists are held to a higher standard of care than

those who are not specialists.those who are not specialists.• Novices.Novices. Those who are newly licensed are held to the same Those who are newly licensed are held to the same

standard as experienced professionals.standard as experienced professionals.• Unreasonable standard.Unreasonable standard. If a court declares a standard If a court declares a standard

unreasonable, then those practicing that standard are negligent.unreasonable, then those practicing that standard are negligent.• Doctrine of informed consent.Doctrine of informed consent. Unless the treatment is an Unless the treatment is an

emergency, professionals have a duty to inform a patient of all emergency, professionals have a duty to inform a patient of all risks inherent in the procedure.risks inherent in the procedure.



Negligence is proven through expert Negligence is proven through expert testimony or circumstantial evidencetestimony or circumstantial evidence• Expert testimony involves the use of Expert testimony involves the use of

professionals with the same qualification as the professionals with the same qualification as the defendant to establish what is the applicable defendant to establish what is the applicable standard of care and what would a reasonable standard of care and what would a reasonable person have done in the same circumstancesperson have done in the same circumstances

• Circumstantial evidence is the presentation of Circumstantial evidence is the presentation of a set of facts from which another set of facts a set of facts from which another set of facts may be inferred.may be inferred.


What happens in a lawsuit?What happens in a lawsuit?

When a person believes they have When a person believes they have been injured by another they (the been injured by another they (the plaintiff) will file a claim in courtplaintiff) will file a claim in court

Court legally notifies the other Court legally notifies the other person (the defendant) that a claim person (the defendant) that a claim has been filed against themhas been filed against them

Defendant must answer this claim in Defendant must answer this claim in court.court.


What happens in a lawsuit?What happens in a lawsuit? If an athletic trainer is sued, he or she If an athletic trainer is sued, he or she

needs to consult with an attorney at onceneeds to consult with an attorney at once• Do not discuss anything with the plaintiff or Do not discuss anything with the plaintiff or

plaintiff’s attorneyplaintiff’s attorney• If the athletic trainer has liability insurance, the If the athletic trainer has liability insurance, the

insurer will wish to assign counselinsurer will wish to assign counsel If you have an attorney in mind, inform the insurance If you have an attorney in mind, inform the insurance

company, which will usually grant your requestcompany, which will usually grant your request• After an attorney is assigned, he or she will After an attorney is assigned, he or she will

review a copy of the plaintiff’s filereview a copy of the plaintiff’s file• Next, a meeting will be arranged for you to Next, a meeting will be arranged for you to

meet the attorney and discuss the casemeet the attorney and discuss the case Do not hold back any information, as it will invariably Do not hold back any information, as it will invariably

come out during discovery or testimony.come out during discovery or testimony.


What happens in a lawsuit?What happens in a lawsuit? Discovery is the process of obtaining

information from the other side in a case During civil procedures, discovery takes

place after the filing of the suit, unlike criminal law when discovery is often done in secrecy and before the charges are filed

During discovery, written requests are made for all pertinent documents• These requests cover the defendant’s

background, education, training, and experience

• Witnesses are interviewed by deposition These interviews can be videotaped.


What happens in a lawsuit?What happens in a lawsuit? Depositions can take place two or more Depositions can take place two or more

years after the initiation of a suit, hence years after the initiation of a suit, hence complete, accurate, written records are a complete, accurate, written records are a mustmust

Depositions are done under oath in the Depositions are done under oath in the presence of a court reporterpresence of a court reporter

Transcripts of the deposition will be Transcripts of the deposition will be available to all of the attorneys in a caseavailable to all of the attorneys in a case

At trial, care must be given that testimony At trial, care must be given that testimony is consistent with that given during a is consistent with that given during a depositiondeposition


What happens in a lawsuit?What happens in a lawsuit? When preparing for a deposition, it is a good idea When preparing for a deposition, it is a good idea

to bring a copy of your comprehensive resume or to bring a copy of your comprehensive resume or vitavita• Simplifies the questions about your backgroundSimplifies the questions about your background

Careful review of the patient record is a mustCareful review of the patient record is a must• Being able to recall from the written record the facts of a Being able to recall from the written record the facts of a

case is extremely importantcase is extremely important• Rather than guessing, or speculating on what an athletic Rather than guessing, or speculating on what an athletic

trainer thinks happened, the answers should be short, to trainer thinks happened, the answers should be short, to the point, and cover only the question askedthe point, and cover only the question asked

• If there is no written prompt in the records, it is better to If there is no written prompt in the records, it is better to say, “I do not know,” than to guesssay, “I do not know,” than to guess

• Care should be given not to educate the plaintiff’s Care should be given not to educate the plaintiff’s attorney in the nuances of a profession about which he attorney in the nuances of a profession about which he or she may have little understandingor she may have little understanding



The completing of discovery should bring The completing of discovery should bring to light the existence of duty and the to light the existence of duty and the performance of that dutyperformance of that duty

Once the record is complete and the court Once the record is complete and the court has found a cause of action exists, the has found a cause of action exists, the court will attempt to mediate a settlement court will attempt to mediate a settlement before going to trialbefore going to trial• Saves everyone's time, effort, and resourcesSaves everyone's time, effort, and resources• If no agreement is possible the case will move If no agreement is possible the case will move

to trialto trial Negligence is the most common violation Negligence is the most common violation

charged against athletic trainerscharged against athletic trainers


What happens in a lawsuit?What happens in a lawsuit? The plaintiff must prove the four parts of The plaintiff must prove the four parts of

negligence all existnegligence all exist Should the plaintiff not present sufficient Should the plaintiff not present sufficient

evidence, the defendant will move for evidence, the defendant will move for summary judgmentsummary judgment• If the judge agrees, the case will be decided for the If the judge agrees, the case will be decided for the

defendant and trial is overdefendant and trial is over• If the judge does not agree, the defense will If the judge does not agree, the defense will

present its case to explain the points made by the present its case to explain the points made by the plaintiffplaintiff

• Once both side have presented their case, a jury Once both side have presented their case, a jury will decide the outcomewill decide the outcome

• In civil cases the decision is based on a In civil cases the decision is based on a preponderance of the evidence (greater than 50%)preponderance of the evidence (greater than 50%)



During the trial the athletic trainer will be During the trial the athletic trainer will be expected to present the same points of expected to present the same points of fact in answering questions that he or she fact in answering questions that he or she did during the depositiondid during the deposition

Where there are discrepancies, the Where there are discrepancies, the plaintiff’s lawyer most likely will try to infer plaintiff’s lawyer most likely will try to infer the defendant is lying, either during the the defendant is lying, either during the deposition or now, during the trialdeposition or now, during the trial


What happens in a lawsuit?What happens in a lawsuit? The usatrainers.com website lists ten common mistakes The usatrainers.com website lists ten common mistakes

that encourage litigation. These include:that encourage litigation. These include:• Alter the client’s recordAlter the client’s record• Fail to document what you did or did not do and whyFail to document what you did or did not do and why• Fail to follow your own policies and procedures even though Fail to follow your own policies and procedures even though

your actions may fall within the standard of careyour actions may fall within the standard of care• Treat a client like he or she is unimportant and what he or she Treat a client like he or she is unimportant and what he or she

has to say is insignificanthas to say is insignificant• Speak in a superior manner to a client using terminology they Speak in a superior manner to a client using terminology they

do not understanddo not understand• Refuse to treat a client because of his/her conditionRefuse to treat a client because of his/her condition• Tell a client that a co-worker made an error which caused the Tell a client that a co-worker made an error which caused the

client’s problemclient’s problem• Fail to obtain informed consent from the client and a bad Fail to obtain informed consent from the client and a bad

result, but known risk, ensuesresult, but known risk, ensues• Discuss individual cases with friends or family members, Discuss individual cases with friends or family members,

breaching the client’s confidentialitybreaching the client’s confidentiality• Speak of confidential client information in the hallways where Speak of confidential client information in the hallways where

unsuspecting family members or others may hearunsuspecting family members or others may hear


OutcomeOutcome

Remember that even if the athletic trainer Remember that even if the athletic trainer prevails in the action before the court, the prevails in the action before the court, the tide of public opinion does not always stay tide of public opinion does not always stay with the winning side. Reputations may be with the winning side. Reputations may be damaged to the extent of losing referrals damaged to the extent of losing referrals and patients. In addition, the work of and patients. In addition, the work of preparation, discovery, deposition, and preparation, discovery, deposition, and trial is time-consuming. This is time away trial is time-consuming. This is time away from the job, disrupting an athletic from the job, disrupting an athletic trainer’s daily work life.trainer’s daily work life.

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