Chapter 27
Legal Aspects of Exercise Physiology
Tommy Boone, PhD, MPH, FASEP, EPC
With the 1997 founding of the American Society of Exercise Physiologists [1] and the development of the exercise physiologist’s Standards of Professional Practice [2], board certified ASEP exercise physiologists [3] will be held to a higher standard of delivery of services to patients and/or clients. While this is a necessary and dramatic improvement over the non-regulated providers, it does not solve all the issues and concerns that underpin the litigation explosion in the United States. Certain fundamental principles of care, practice, and “a higher standard of delivery” must be addressed if exercise physiologists are to understand the legal system and how to protect themselves from litigation. A serious complication during an exercise test or an adverse result from an exercise prescription that leaves the plaintiff’s health and well being in question is very likely to raise the question of negligence or malpractice [4, 5]. Exercise physiologists are not exempt from being held accountable in the event of an injury or death of a client or patient. Moreover, since it is a well known that courts and juries have empathy for the plaintiff; all healthcare professionals must be sensitive to the issues and trends surrounding the legal system.
Despite the fact that negligence and malpractice must be demonstrated to be the proximate cause, proving that culpability does not lie in the care of the exercise physiologist is not easy. Only if it can be determined that the exercise physiologist acted in accordance with a “standards of practice” is it likely that the tort system (i.e., a violation in which another person is wronged) will not find the exercise physiologist’s conduct either intentional or negligent. This is why all ASEP board certified exercise physiologists must perform their healthcare duty in accordance with the ASEP Standards of Professional Practice. The legal status of the guidelines could be interpreted to mean that failure to adhere to the ASEP Standards is negligence. That is, the views expressed in the guidelines indicate having done something or the failure to do something that resulted in harm to another person may result in an action taken against the board certified exercise physiologist. More specifically, since board certified exercise physiologists have a recognized Standards of Professional Practice, the failure to conform to the existing ASEP Standards of Professional Practice is malpractice. Of course, given the history of exercise physiologists without their own professional organization and, therefore, without their own professional guidelines, exercise physiologists have always been at the mercy of several different standards [6]. Which set of guidelines is the right reference guide for non-ASEP exercise physiologists is still an unanswered question for non-ASEP members?
Since The Exercise Standards Book [7], published by The American Heart Association, is written for the medical doctor, it can be argued that it is not a logical reference for the exercise physiologist. This would seem to be true with the standards of practice adopted by The American College of Cardiology [8]. Here again, exercise physiologists are not cardiologists. And, although the American College of Sports Medicine [9] continues to refine its original set of guidelines for dealing with preventive and rehabilitative care, there is considerable opportunity for legal concerns since sports medicine is not exercise physiology. However, with the promulgation of one set of professional standards for the ASEP exercise physiologists, the American Society of Exercise Physiologists has helped to decrease some of the legal concerns. That is, should the plaintiff accuse an ASEP exercise physiologist of negligence or malpractice, then, neither the ACSM nor AHA guidelines would be used as the benchmark of the ASEP board certified exercise physiologist. Living up to the ASEP Standards can help save ASEP exercise physiologists from negligence and concomitant liability.
Since it is common for both licensed and unlicensed healthcare providers to work together in diverse healthcare settings, since exercise physiologists are presently unlicensed, and since state statutes explicitly supports the licensed provider, exercise physiologists must be especially sensitive to doing anything that may result in a cause of legal action for negligence. Here, the existence of a uniform and accepted standard in response to these concerns greatly decreases the problems that surround writing and issuing exercise prescriptions, exercise counseling, and lifestyle management and consultation for both healthy and diseased clients. The ASEP leadership has therefore helped to ensure that deviation from its recognized standards may result in the application of exercise based on personal whim or quackery [10]. However, of particular importance, the standards carry the force of a prescriptive legal rule only with ASEP board certified exercise physiologists. Non-certified exercise physiologists are not responsible to any practice guidelines, which is problematic. That is, although it is a well-recognized task and responsibility by independent, professional organizations to develop standards, members who are not certified or licensed may not be held accountable to the accepted standards.
Widespread adoption of the ASEP board certification is an evolving process as it should be. Similarly, it takes time for members of professional organizations to evolve along with the adoption of an academically driven standard of care, evidence based practice, and professional judgment based on experience. Fortunately, time is on the side of the evolving guidelines because the legal status of guidelines, as a guide or supplement to proof of a safe and professional practice, is evolving as well as most professions. Still, even though the role of guidelines in litigation is reported to be less than 7% of the malpractice actions [11], it is relevant to adhere to them. This is why the ASEP leaderships’ perspective (or testimony) in regards to appropriate and reasonable practice is also important when establishing proof of negligence. In other words, the testimony of expert witnesses regarding what is reasonable practice is also relevant and appropriate in litigation cases involving the charge of negligence or malpractice.
This thinking is in line with the professional judgment expected of the ASEP membership, given that the members are likely to embrace the professional development principles and beliefs that underpin exercise physiology as a healthcare profession. Other healthcare providers should also agree that the ASEP academically prepared, board certified exercise physiologist’s choices and expectations regarding service and care interventions with the public sector are based on better judgments, scientific evidence and facts, college educated collective consensus, and laboratory derived recommendations that merit respect and accountability. The same cannot be said of many certifications outside of this context. The “weekend-warrior approach to certification” and the disregard for the partnership between academics and credible professionals are always a weak and unfortunate combination that may result in a legal action for breach (or breaking) of civil law. Because the healthcare field is subject to civil wrongs committed by one person against another (torts), it is always in the best interest of the exercise physiologist to graduate from an accredited program of study.
The judgment of the court should find that the ASEP Standards of Practice are based on expert opinion and consensus. It is clear that the Standards do not give the exercise physiologist the authority to diagnose disease, administer drugs, start an IV, or to cardiovert a patient in ventricular fibrillation. Providing care in accordance with the Standards should bear positively on negligence or malpractice litigation cases. Being in position to show that the standard of care met the Standards reasonably expected of the exercise physiologist goes a long way in a strong defense in litigation cases. This is why the ASEP leadership believes that the Standards can protect from litigation. Hyams and colleagues pointed out that “one-fourth of all attorneys state that a guideline influenced their decisions to settle a case, and one fourth of plaintiffs’ attorneys report that a guideline led them to refuse a case…” [11, p. 7]. This is important because cases are filed without merit, and the use of standards can help reduce the quantity of claims early on.
On the other hand, the failure to comply with the ASEP Standards is a problem. A client is more likely to sue if there is evidence that the care failed to meet the standard reasonably expected of the ASEP exercise physiologist. According to Morse [12], negligence can consist of a “careless act” or a “careless failure to act.” Either way, if proven in a court of law, the exercise physiologist’s duty of care is breached. The restitution for an injury or death is money, and there are three types of damages: (1) special damages - money for the lost client’s lost wages, hospital, and doctor’s bills incurred for treatment of the injury; (2) general damages - money awarded for the client’s pain, suffering, and humiliation that are not reflected in the loss of payment of specified sums as in the case of hospital and ambulance bills; and (3) punitive damages - money awarded to the client in cases of vicious or grossly negligent conduct or fraud. To avoid paying damages, the exercise physiologist must act as a reasonably prudent person would have acted in accordance with the ASEP Standards.
Since “exercise as medicine” must be viewed and examined within the professional healthcare model, exercise physiologists are therefore required to carry out the same legal-specific steps as other healthcare professionals. This is especially true if they are interested in not paying “money” for a careless act or a careless failure to act. Informed consent is an important first-step by which a client agrees and consents to the use of exercise in health related matters. With the client’s full understanding of the use of testing, training and the use of exercise as medicine as well as the limitations, both the client and the exercise physiologist enter into a professional relationship with the expectation of positive results. The informed consent helps the client understand the potential for benefit as well as the opportunity for negative results. Within reason, the client must be informed about untoward events of testing and training, about the questions that center directly on risk factors, and about the many unknowns that associate with disease and dysfunction. Failure in this step is as simple as not allowing the client to ask questions and get solid answers. Remember, the exercise physiologist has a duty toward the client to safeguard the client from foreseeable harm that is physical, psychological, or otherwise harmful to one’s reputation or livelihood.
The purpose of the informed consent is to keep the client informed. If there is a chance of injury or harm resulting from the service, the client needs to understand the risk before getting involved. Then, in the event of a problem, the exercise physiologist is in a better position to deal with the consequence of legal action. Keeping in mind that the exercise physiologist is a non-physician, diagnosis is not part of the authorized provision of the ASEP Standards of Professional Practice. Hence, while the practice of exercise physiology may involve specific protocols (and treatments), the standard of care must always be consistent with exercise physiology as a healthcare profession. In particular, this is especially why contraindications and indications for graded exercise tests are important. Knowing when to stop a test or an exercise session is critical to the functional and/or safety concerns of the client and thus the significance of a lawsuit [13].
Although seldom discussed in exercise physiology, there is the very real need to avoid over-selling exercise as “the” correction for all physical problems. The idea that regular exercise will prevent a heart attack or correct any number of other dysfunctions and/or diseases is simply not correct. Certainly the benefits of exercise are huge, but seldom completely predictable at the individual level. If the client is encouraged to expect results that fail to surface, the impossibility may set the stage for accusing the exercise physiologist of misinformation that may carry with the perception of having done something wrong. Litigation regardless of absence of negligence is never fun and, unfortunately, it is never a career-building step. Similarly, if a client is not satisfied with the exercise physiologist’s services, it is always in the best interest of the exercise physiologist and the client to help arrange for another exercise physiologist’s care. Part of handling a concern of this type is to be sure that the records are carefully documented, that the prescription is understandable and monitored, that the personnel employed in the care of the client understand the ASEP Standards of Professional Practice, and that the precautionary measures have been anticipated, adequately discussed, and placed into action. In short, if the client fails to adhere to the standards, the exercise physiologist risks liability if injury or complications that may result in litigation.
With increasing claim and litigation involving exercise professionals and others who administer exercise programs including, but not limited to, graded exercise testing, individualized and/or group exercise training of clients with and without known disease and/or dysfunction, exercise physiologists need liability insurance or “…face exposure of their personal assets to claim and suit” [6, p. 439]. Group insurance can be obtained from different professional associations, which raises the question: “Should a Board Certified Exercise Physiologist (EPC) carry professional liability insurance? The ASEP Standards do not have such a requirement. Most professional organizations do not require their members to carry individual liability insurance. It is a personal matter; one that has a certain cost factor attached to it as well as the question of how important is it to do so. Liability insurance transfers from the exercise physiologist to all exercise physiologists who are covered by the policy the legal costs and any settlement related to a suit.
In general, it is believed (if not assumed) that the employer’s insurance coverage extends to the employees since they are working for the employer. Whether this is true is a serious question for the employee to determine. Exercise physiologists ought to determine the type and extent of the coverage at their workplace, whether the employer covers him or her individually, and the degree to which it covers legal costs, judgments or settlements. And, of course, exercise physiologists should carry their own independent liability insurance. This is essential for all ASEP board certified exercise physiologists because they will be held to a higher standard of care than non-ASEP certified exercise physiologists. It does not have anything to do with the fact that they are not licensed. If a client suffers harm as a direct result of a board certified exercise physiologist’s action, the EPC can be and very likely will be held personally liable. This is also an important reason for asking the employer the following questions. Does the liability insurance coverage provide me with a personal attorney, or will the same attorney be working for the employer too? At what point in the litigation process would the employer no longer be responsible for me? How would my job be influenced if my employer has to pay? Does the insurance company have the right to ask me to repay damages it paid on my behalf? [14, p. 279]
In closing, it is important to mention several factors that may help defend against negligence or malpractice claims.
1. Contributory Negligence. In addition to the decisions made by the exercise physiologist on behalf of the client, it is possible that the client may have contributed to the injury by not paying attention. When an accident occurs, cross match it with the client’s prior history. Were there other documented indications that the client failed to follow clear and concise instructions. Specific note taking and verbal statements should be filed for future reference.
2. Unavoidable Accidents. Accidents can and do happen. Exercise physiologists should always function within the scope of their practice and/or education. Competent professionals anticipate sources of possible injury. Discuss safe practices with clients. Teach them to use the equipment the correct and safe way. Help them to appreciate the value in understanding the safety devices for different pieces of equipment. Be sure the facility is organized to avoid falls or other injuries.3. Delegation versus Supervision. Exercise physiologists must be confident of delegating their work and/or supervision to non-exercise physiologists or others who may be less qualified. The person is given a client to work with, even for a moment, must understand what to do and that he or she has the knowledge and hands-on skills to do it safely. Exercise physiologists will be held accountable for passing their work to a non-qualified staff member or to an intern who doesn’t have the experience to carrying out the procedure correctly.
4. Client Care. The yardstick that the legal system uses to measure the quality of one’s professional ability to care for clients is defined by standards of professional practice (care). The exercise physiologist’s standard of care must be maintained at a professional level. He or she should build and maintain good rapport with clients. Feedback is especially important in building the client’s confidence and ensuring proper communication. Be sure to provide full attention to each client, and his or her ability to perform appropriately to safeguard against injury to joints from equipment failure. Make sure the client has been given the correct exercise program.
5. Medical Records. The client’s records are extremely important to an objective evaluation of reasonable care or abuse of the client. Make sure that all policies and procedures of the professional and employer are followed and documented. Identify and record the client’s issues and/or concerns and any strengths and/or limitations to a particular exercise program. Observe, monitor, and record the client’s ability to carry out the instructions. Be alert to indications for stopping the exercise and record accurately the conversation with the client at that point in time.
6. Knowledge of the Client. Having specific knowledge about individual clients is especially valuable in controlling the risk of injury. This bears directly various social factors. Perhaps, there is a belief that the employer has the ability to pay large settlements. Effective communication between the exercise physiologist and the client will help the client understand the importance of safety and performing procedures correctly with good technique.
7. Suit-Prone Clients. It is clear that some clients are more likely to initiate a lawsuit that others. Maintaining excellent records of care and behavior of the client are important in demonstrating the appropriateness of care and/or instructions of any kind. Report (and record accurately) all conversations about lawsuits and negative comments about the staff and/or employer to the administration.
References
1. American Society of Exercise Physiologists. (2004). [Online]. http://www.asep.org/
2. American Society of Exercise Physiologists. ASEP Standards of Professional Practice. [Online]. http://www.css.edu/ASEP/StandardsofProfessionalPractice.html
3. American Society of Exercise Physiologists. (2003). The Exercise Physiologist’s Certification Candidate’s Guide. [Online]. http://www.css.edu/users/tboone2/asep/EPCManual.html
4. Boone, T. (2003). Exercise physiology, negligence, and lawsuits. Professionalization of Exercise Physiologyonline. Vol 6 No 9 [Online]. http://www.css.edu/users/tboone2/asep/ExercisePhysiologyNegligenceLawsuits.html
5. Boone, T. (2002). Legal dimensions of exercise physiology practice. Professionalization of Exercise Physiologyonline. Vol 5 No 3 [Online]. http://www.css.edu/users/tboone2/asep/LegalDimensions.html
6. Herbert, W.G. and Herbert, D.L. (1995). Legal considerations. In M.L. Pollock and D.H. Schmidt. 3rd Edition. Champaign, IL: Human Kinetics, pp. 433-444.
7. American Heart Association. (1990). Special report: exercise standards, a statement for health professionals. Circulation 82:2286.
8. American College of Cardiology. (1986). Position report on cardiac rehabilitation: recommendations of the American College of Cardiology on cardiovascular rehabilitation. J Am Coll Cardiol 7:451.
9. American College of Sports Medicine (1991). Guidelines for graded exercise testing and exercise prescription. 4th Ed. Philadelphia, PA: Lea & Febiger.
10. Boone, T. (2002). Exercise Physiology Quackery and Consumer Fraud. Professionalization of Exercise Physiologyonline. Vol 5 No 5 [Online]. http://www.css.edu/users/tboone2/asep/ExercisePhysiologyQuackery.html
11. Hyams, A.L. Brandenbury, J.A. Lipsitz, S.R. Shapiro, D.W., and Brennan, T.A. (1995). Practice guidelines and malpractice litigation: a two way street. Ann Intern Med 122:450-455.
12. Morse, R.L. (1969). Exercise and the heart: guidelines for exercise programs. Springfield, IL: Charles C. Thomas Publishers.
13. Herbert, D.L. and Herbert, W.G. (1992). Medicolegal aspects of rehabilitation of the coronary patient. In N.K. Wenger and H.K. Hellerstein (Ed.). 3rd Edition. Rehabilitation of the Coronary Patient. New York, NY: Churchill Livingstone, pp. 577-580.
14. Ellis, J.R. and Hartley, C.L. (1998). Nursing in today’s world: challenges, issues, and trends. 6th Edition. New York, NY: Lippincott-Raven Publishers.