May 31, 2017

There are Lots of Reasons NOT to Push Clients Too Far – “Rhabdomyolysis” is One

Avoiding Liability Bulletin – June 2017

As pointed out many times in this column, a good number of claims and suits are asserted against personal trainers and other fitness professionals related to untoward events arising out of the over-exertion of clients. These adverse events include extreme fatigue, pulled or strained muscles, broken bones and even heart attacks or other life threatening events. Pushing clients too hard based upon philosophies related to “no pain – no gain” often lead to these and other unfortunate results as well as claims and litigation.

One of the relatively recent untoward events which is sometimes alleged in these cases is associated with the over-exertion of clients leading to rhabdomyolysis. Rhabdomyolysis, often referred to in the fitness industry as “rhabdo,” is a potentially life threatening condition caused by over-exertion leading to the breakdown of muscle fibers which release a protein into the bloodstream which can proximately cause fatigue, muscle injury and weakness, sometimes damage to the kidneys and even in extreme situations, death. In the fitness industry, claims related to rhabdo are usually caused by over-exertion and in the context of fitness professionals and clients – pushing clients too hard.

While certain medications, illegal drugs and even alcohol abuse can also lead to rhabdo, the fitness industry is just beginning to see adverse claims and litigation associated with this condition. For example, in Kentucky, a 2012 filed lawsuit alleged that a personal fitness trainer established an exercise regime for an airline pilot client who had a poor level of physical fitness and who had not worked out in a gym for over 20 years. Despite his claimed poor physical fitness status, he was allegedly instructed by the fitness professional to use an elliptical machine followed by several directed strenuous exercises involving his legs and the performance of squats with weights.

The lawsuit he subsequently filed alleged that the exercise session lasted some 40-45 minutes during which time the client became overly fatigued and repeatedly fell to the floor. Despite these occurrences, the complaint filed in the case alleged that the client told the personal trainer, I “can’t do more.” After the session stopped because the client said he could do no more, the fitness personnel tried to sell the client personal training sessions. The client declined and began to suffer extreme muscle pain and weakness which led to dark brown urine upon urination and eventually hospitalization for eight days. The case, once filed, was ultimately settled for $75,000.00.

In 2013 another rhabdo case was filed in Illinois which, based upon a release and waiver of liability, resulted in a ruling in favor of the fitness facility. In this case, the plaintiff, a client of the facility and one of its personal trainers, alleged that he contracted rhabdo after the completion of initial exercise sessions with a personal trainer which resulted in hospitalization for several days. While the client’s allegations failed at the trial court level, which decision was affirmed on appeal, the case faltered due to the lack of medical testimony to substantiate the client’s allegations and the existence of the waiver/release document. Despite the ultimate ruling in this case, the costs and expenses associated with the defense of the case were surely substantial.

The bottom line on the rhabdo issue is simply DON’T OVER-EXERT FITNESS CLIENTS – especially during their first few training visits. Make sure and secure relevant health and fitness history information and perhaps most importantly, pay attention to that history! Progress clients through a reasonable exercise program considering their history, goals, desires and abilities. Too much, too soon is not the way to go. Too often such programming leads to claims and suits which can be avoided through the provision of service based upon the applicable standard of care.

Checklist to Avoid Rhabdo Claims and Lawsuits:

Secure relevant client history and medical information;
Evaluate the secured information in accordance with the applicable fitness standards of care;
Develop an exercise prescription based upon the information secured from the client;
Establish a progressive exercise program based upon the client’s history information and abilities, goals and desires;
Don’t over-exert clients especially during the first few exercise sessions. Don’t do too much, too soon; and,
Monitor the client’s exercise program and increase intensity over a reasonable time and upon a progressive basis in accordance with the applicable standard of care

This publication is written and published to provide accurate and authoritative information relevant to the subject matter presented. It is published with the understanding that the author and publisher are not engaged in rendering legal, medical or other professional services by reason of the authorship or publication of this work. If legal, medical or other expert assistance is required, the services of such competent professional persons should be sought. Moreover, in the field of personal fitness training, the services of such competent professionals must be obtained.
Adapted from a Declaration of Principles of the American Bar Association and Committee of Publishers and Associations

Download PDF

Protect yourself with CPH Insurance.

Get a quote & apply online.

About the Author

David Herbert

May 17, 2017

Team Relationships and Team Communication Affect Patient Care and Legal Liability

Avoiding Liability Bulletin – May 17, 2017

It is not unusual for nursing staff to feel a sense of purpose and pride in the work they do with their patients. These feelings are often translated into such phrases as “We are a family,” We work as a team,” “We stick together.”

Such teamwork requires delegation of specific tasks to unlicensed assistive personnel (UAPs) and others that are within their scope of practice. In an interesting study done in 2011, the effect of RN-UAP relationships on patient care quality and safety was evaluated.1 The UAP term was used to include many titles that assistive staff are given, including CNAs, UAPs and nurse techs.

The purpose of the study was to identify barriers that would hinder good RN-UAP teamwork and then determine if such interference would affect quality of care and patient safety.

Seven themes were identified that were barriers to RN-UAP teamwork:

Lack of role clarity
Not working together as a team
No conflict management and no feedback skills
Not including UAPs in decision making
Deficient delegation
Not working with the same RN or UAP regularly
“It’s not my job” syndrome2

Not surprisingly, these themes resulted in “diminished patient quality care and increased patient care errors”. One example of these themes’ effects on patient care in the study was when an RN stated that vital signs were not her responsibility and when a patient coded, the RN blamed the UAP.3

Interestingly, many of the barriers listed above center around ineffective communication skills. Good communication skills are essential in eliminating the above-identified barriers to quality patient care and increased patient errors. Communication skills involves not only verbal exchanges but written exchanges as well, especially in relation to documentation in the patient’s record. The link between ineffective communication skills and avoiding professional negligence liability is widespread in nursing literature.

In a benchmark study, 747 malpractice cases involving nurses from 1988 to 1993, “communication negligence” was responsible for 203 (27.17%) of the adverse events (injuries or death) experienced by patients.3

An analysis of 2455 Sentinel Events reported to the Joint Commission in 2004 indicated that the “primary root cause” in over 70% was communication failure, so serious that approximately 75% of the patients died.4

In 2015, CRICO Strategies, in its annual benchmarking report, “Malpractice Risks In Communication Failures”, reported on a total of 7,149 cases of miscommunication with some degree of harm to patients. 37% of those cases were classified as “high severity” of harm, including death. 57% were provider-provider communication failures. And, of the 2,019 cases involving nurses and nursing care, 32% involved a communication error.5

Examples of communication failures in the nursing cases involved those among providers regarding a patient’s condition and poor documentation of clinical findings.6

Clearly, as the research study and the CRICO Annual Report indicate, negative conduct and miscommunication does affect patient care.

They may also affect legal liability as well. Legally, each team member is accountable and responsible for the care they give. If there is a patient injury or death, all team members who were involved with the care of that patient will be legally scrutinized. If a negative tactic or a failure in communication can be linked to the cause of a patient’s injury or death, liability for professional negligence or wrongful death can occur.

Patient care is indeed complex and requires many team members to work with every patient. Avoiding the negative behaviors identified in the above research study and using clear and complete communication of any type with all team members are simple and easy ways to reduce the risk of liability for injury to, or for the death of, a patient.

FOOTNOTES
1. Beatrice Kalisch, PhD, RN, FAAN (2011), “The Impact of RN-UAP Relationships On Quality And Safety”,42(9) Nursing Management, 16-22. The full article of the study is available at: https://www.mobile.journals.lww/nursingmanagement/Fulltext/2011/0900/The_impact-of-RN-UAP-relationships_on_quality_and.3aspx .
2. Id.
3. Janice Pitts Beckmann (1996), Nursing Negligence: Analyzing Malpractice In The Hospital Setting. Thousand Oaks, CA: Sage Publications, 268.
4. M. Leonard, S. Graham, D. Bonacum (2004), “The Human Factor: The Critical Importance Of Effective Teamwork And Communication In Providing Safe Care”. Available at:
www.csap.cam.ac.uk/media/uploads/files/1/leonard-2004-standardised-communication.pdf .
5. CRICO Strategies (2015). Malpractice Risks In Communication Failures: 2015 Annual Benchmarking Report. (CRICO Strategies is a division of The Risk Management Foundation of the Harvard Medical Institutions Incorporated).
6. Shannon Barnet (2016), “5 Thing(sic) To Know About Communication Errors, Nurses And Patient Safety”, Becker’s Infection Control & Clinical Quality. Available at: www.beckershospitalreview.com/quality/5-things-to-know-about-communication-errors-nurses-and-patient-safety.html .

THIS BULLETIN IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT TO BE TAKEN AS SPECIFIC LEGAL OR ANY OTHER ADVICE BY THE READER. IF LEGAL OR OTHER ADVICE IS NEEDED, THE READER IS ENCOURAGED TO SEEK SUCH ADVICE FROM A COMPETENT PROFESSIONAL.

Download PDF

Protect yourself with CPH Insurance.

Get a quote & apply online.

About the Author

Nancy Brent

Nancy J. Brent, RN, MS, JD, a nurse attorney in private law practice in Wilmette, IL, represents nurses and other health care providers before the state agency that regulates health professionals. Brent graduated from Loyola University of Chicago School of Law in 1981. Her experience prior to opening her private practice included a year of insurance defense for a major insurance company and establishing a law firm with two other attorneys. After three years of doing defense work at the firm, Brent decided to establish a private practice in 1986. Brent has published extensively and has lectured across the country in the area of law and nursing practice. She is a member of several legal and nursing professional associations, including the American Nurses Association, Sigma Theta Tau International Honor Society of Nursing, the Illinois State Bar Association, and The American Association of Nurse Attorneys (TAANA).

May 1, 2017

Coaching?

Avoiding Liability Bulletin – May 2017

I have consulted with licensed therapists who have asked, in a variety of contexts, whether they can safely (re: their liability) provide the service broadly called “coaching” with members of the public. My answers, as you might expect, always depended upon the facts and circumstances involved. In some cases, my answer and my advice strongly discouraged such activity. In other cases, I had no problem with the practitioner advertising and performing coaching services – as long as the practitioner fully understood the possible implications and the appropriate and safest way to pursue and implement a coaching business. At the time of those consultations, “coaching” was an activity unregulated by the state, and anyone could engage in the business of coaching, regardless of qualifications. Of course, the precise definition of coaching and the nature of the services to be rendered may vary.

Is there more liability in practicing psychotherapy or diagnosing and treating mental disorders than there is in personal lifestyle coaching, relationship coaching, or executive coaching? My answer would generally be “yes.” Most mental health practitioners (licensed by the state in which they practice) carry malpractice or professional liability insurance, which generally covers them while they are engaged in the lawful practice of their profession. The insurer is likely not agreeing to insure for activities or services that are beyond those that are typically and usually performed by the particular licensed profession involved, and thus, there would likely be no coverage under a professional liability or malpractice policy for mental health care providers who are engaged in the business of providing coaching services. Whether and how the practitioner can obtain other reliable insurance coverage for coaching services is outside the scope of this brief article.

It is important for the practitioner who is interested in coaching to be familiar with the field and to know its scope and limitations. Likewise, it is important for the practitioner to understand that a licensed health care professional providing treatment to a client is a separate and distinct undertaking from “coaching” – whatever the definition. It has therefore been my recommendation that practitioners who wish to pursue coaching as their primary business endeavor do so separate and apart from any therapy or mental health practice, if the latter practice will even continue. Separate offices, separate advertising, and separate forms can help to support the practitioner should an issue arise (e.g., an assertion from a client that therapy or mental health care was really being delivered). When the two endeavors are performed from the same office, concerns are raised, especially when the business card contains the title of the practitioner’s license and perhaps the license number.

But why might a practitioner desire to become a coach or to perform coaching services as opposed to providing “mental health care,” “psychotherapy,” “professional clinical counseling” or the “diagnosis and treatment of mental disorder” as a state-licensed practitioner. The answer to this question is varied.

Some may question why they should continue to subject themselves to governmental oversight, to the rigors of third party payment/insurance reimbursement, and to multiple and increasing state mandates, when they can make as much or more money by broadening their services and taking themselves out of the therapist-patient relationship realm. Such a change in providing services to the public may obviate many of the duties and responsibilities applicable to the regulated mental health professional – provided that the change is implemented appropriately, carefully, and in good faith – and if the “facts on the ground” support the change in endeavor. If not done appropriately (and I am familiar with examples of inappropriateness), the practitioner is exposed to significant liabilities – criminal, civil, and administrative.

A common conversation I have had with multiple therapists involves the situation where the therapist is performing or wanting to perform services via telemedicine or telehealth with patients outside of the state in which they are licensed. Because of well-founded concerns that they may be practicing illegally in the state where the patient resides (a state other than the state where the practitioner is licensed), they ask about calling their sessions “coaching,” since coaching online is, to the best of their knowledge, largely unregulated by the states. This kind of selective role assignment or perception of one’s activity is highly problematic and can lead to liability. Merely calling the actual service performed (therapy/counseling) by another name (coaching) does not mean that therapy is not being provided. If the “coach” had sexual relations with the client, would the licensing authority take the position that the laws addressing sexual misconduct by a licensed professional would not apply? I think not.

A few therapists lost their licenses as a result of disciplinary action taken by the licensing board, and others have attempted to surrender their licenses in anticipation of a consumer complaint or licensing board investigation. Merely “hanging out a shingle” and advertising as a life coach may not protect a licensee or a former licensee from a subsequent charge by the licensing board, or from a referral for criminal prosecution, for practicing the particular mental health profession without a license. Be aware that licensing boards may decide to conduct undercover investigations in order to demonstrate that the former licensee was in fact performing services that were within the scope of practice defined in the licensing law. Scopes of practice within licensing laws are sometimes written to encompass a rather broad, somewhat vague description of services that may lawfully be performed for remuneration.

Practitioners must be careful and thoughtful before making and implementing the decision to practice and advertise as a life coach, relationship coach, executive coach, or other described coach. If not done appropriately and in good faith, the licensee may be held liable as a mental health practitioner, regardless of the assertion that “I was only doing coaching.”

COLLATERAL VISITS

It is important to remember that not everyone a mental health practitioner sees in session will or should be categorized as a patient or client. Sometimes the therapist may think it appropriate to see a member of the family, or a spouse or friend, in order to gain further information or insight into the client’s issues.

This would generally be done with the knowledge and permission of the patient, sometimes as a result of the patient’s suggestion, and sometimes with the patient present. In such situations, it is important to be clear with both the patient and the person being seen collaterally (third party) as to the nature of the relationship between the practitioner and the third party. More specifically, it is important to let the third party know that you are the therapist for the patient and that the third party is not a patient (that is, no treatment will occur – only the gathering of information and insight in order to treat the patient).

Additionally, it may become necessary to think about such issues as confidentiality and privilege. For example, are the communications between the practitioner and the third party (collateral visit) in any respect confidential? Does the third party know whether the therapist will share some or all of the information and communications with the client, as determined by the practitioner’s clinical judgment? If the patient’s records were subpoenaed, would the psychotherapist-patient privilege be inapplicable to those portions of the treatment records solely pertaining to the collateral visit because the third party was not a patient? If the patient requests a copy of the treatment records, may the therapist refuse to reveal that portion of the records solely related to the third party collateral visit?

These are just some of the questions that can arise when a third party is seen in a collateral visit. In determining the answers to the questions posed above, and to other related questions, it will be necessary to refer to state laws pertaining to confidentiality, privilege, and patient access to records, and perhaps to the ethical standards (code of ethics) of the practitioner’s profession. If the practitioner is clear about who is the patient and who is not a patient, and clear about the purpose of the collateral visit, answers to these questions can be more easily achieved. The practitioner’s records should be well- documented when there is a collateral visit so that clarity of role and relationship is apparent.

For malpractice insurance for health and life coaches, click here!

Download PDF

Protect yourself with CPH Insurance.

Get a quote & apply online.

About the Author

Richard Leslie

Richard S. Leslie is an attorney and acknowledged expert on the interrelationship between law and the practice of marriage and family therapy and psychotherapy. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT) and has written articles regarding legal and ethical issues for their Family Therapy Magazine. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. While there, he also served as their director of Government Relations and tirelessly advocated for due process and fairness for licensees and applicants.

Learn more about Richard Leslie

Can Fitness Professionals be Civilly Liable for the Criminal Actions of Employees?

Avoiding Liability Bulletin – May 2017

Like any professional sector in this county, the fitness industry, at least occasionally, has to deal with criminal acts committed by some of its fitness professionals. Recently, for example, a personal trainer in Florida was convicted of two first-degree murder convictions of his personal training clients.[1] In another recent case from Michigan, a personal trainer was charged and convicted with the delivery of heroin which, as to at least one delivery though another person, he claimed was a delivery of “protein powder.”[2] Most recently another trainer in Florida allegedly shot two employees at a health club facility after he was terminated by the club. Both employees later died. The trainer also shot and killed himself.[3] Other fitness personnel have been involved in thefts, assaults and batteries and a wide range of other crimes. Some of these activities have been carried out at various facilities where fitness services are provided or at least with fitness clients no matter the particular venue. As a consequence, the question arises as to whether or not employers may be found to be civilly liable for the criminal acts of their fitness employees. In addition, fitness professionals need to know what can be done to avoid potential liability under particular circumstances.

While employers are not generally liable for the criminal acts of their employees since such acts usually would be beyond the course and scope of the employment relationship, liability may arise under some circumstances. If criminal acts are performed by an employee within the scope of the employee’s employment and in furtherance of the employer’s interest, liability may well arise. Employer ratification or approval of an employee’s criminal acts can also lead to potential civil liability of the employer for such acts.

A number of hypothetical situations may arise with fitness employees which could result in civil suits against their employers for the employee’s criminal acts. These situations may include the following:

Thefts from fitness client lockers;
Illicit drug sales to fitness clients;
Criminal sexual activity by fitness professionals with members or others on employer premises;
Assaults and batteries of clients by fitness professionals; and,
Invasions of privacy by fitness professionals with clients.

To the extent that these or similar acts occur during the employment relationship which employers allow, ignore or ratify, civil liability may result to the employer. As the very least, employers may have to defend against claims related to the criminal acts of their employees. Such suits needlessly require employer and other employee time, disruption to normal facility business, “bad press”, lost revenue, unnecessary costs and expenses and potential adverse judgments, appeals, etc. Even if employer insurance covers such civil suits many of the other adverse consequences will still impact the employer.

The foregoing adverse events may well be avoided through comprehensive risk management steps, including the following:

The creation of clear employee job descriptions defining what is to be done and when necessary, what is not to be done;
The adoption of clear employer policies as to the conduct expected of all employees;
The development of statements on prohibited employee actions;
The use of background checks, including criminal background checks for all applicants for employment, including periodic checks on all employees;[4]
The development of employer policies established to thoroughly investigate client, customer or employee complaints and related incidents;
The installation of facility monitoring devices to deter, prevent or at least record instances of criminal conduct;
The purchase of liability insurance where available to protect against claims and suits related to employees’ criminal acts.

The institution of these techniques as part of an overall risk management plan will assist fitness employers in avoiding or at least managing the risks arising out of the criminal actions of employees.

[1] Robards v State, 040617 FLSC, SC15-1364, Supreme Court of Florida, April 6, 2017.

[2] People v Norfleet, 110816 MICA, 328968, Michigan Court of Appeals, November 8, 2016.

[3] Kufahl, P., “Fired Equinox Trainer Kills General Manager, Injures Another Employee,”

http://beta.clubindustry.com/commercial-clubs/fired-equinox-trainer-kills-general-manager-injures-another-

employee?utm_test=redirect&utm_referrer=https%3A%2F%2Fsearch.yahoo.com%2F, April 9, 2017.

[4] Compliance with particular federal and state laws will be required.

Download PDF

Protect yourself with CPH Insurance.

Get a quote & apply online.

About the Author

David Herbert

Nursing Notes Not Enough Support to Prove Physician Negligence; Expert Witness Testimony Required

Avoiding Liability Bulletin – May 1, 2017

P.C. was admitted to the hospital to undergo bilateral knee replacement.¹ Prior to the surgery, he had blood drawn in the event that a blood transfusion was needed. After the surgery, a transfusion was needed but P.C. was given a unit of blood that was not his.

P.C. had symptoms of a reaction to the transfusion, including “feeling extremely cold, chills, severe subjective complaints of feeling unwell, anxiety, disorientation, wheezing, headache and shortness of breath”.² Allegedly, the hospital and the nurse who was later named in the suit filed failed to monitor or treat the reaction.

During the next eleven months, P.C. suffered from “severe, permanent and disabling injuries”, including insulin dependent diabetes mellitus, acute congestive heart failure, and left lower lobe pneumonia. His physician, a pulmonologist, treated P.C. during this time and had him admitted to the hospital with a diagnosis of acute community acquired pneumonia.

Two days late, P.C. died. Documentation indicated P.C. died principally from “severe pulmonary fibrosis with severe underlying lung function and the need for oxygen.”

P.C.’s widow filed a medical malpractice action against the hospital and the nurse who cared for P.C during his initial hospitalization. P.C’s widow died during the pendency of the case, so a substitute plaintiff was allowed by the court.

The allegations against the defendants were that the blood transfusion administered to P.C. resulted in a reaction to it and that the defendants failed to monitor or treat that reaction which resulted in injuries to P.C. that culminated in his death.

During discovery, the plaintiff initially named two nurse expert witnesses who were to testify to the nursing standard of care and the causal relationship to the blood transfusion and its effects that ultimately lead to the death of P.C.

The defendants’ counsel named the pulmonologist as an expert witness. Plaintiff also named the pulmonologist as an expert witness some time later. However, due to several legal procedures that were not followed by the plaintiff and her tardiness to name the physician as an expert witness, the court, upon a motion by the defendants’ to preclude the pulmonologist’s testimony, granted the exclusion from him testifying.

In addition, the court excluded the two nurse experts from testifying after a request for a two-month continuance of the case for trial was requested by defendants’ counsel to depose the pulmonologist.

The trial court then granted the defendants’ Motion for Summary Judgment and the plaintiff appealed that decision.

The appellate court’s opinion supports the trial court’s decision to preclude the testimony of the pulmonologist due to a result of “both undue prejudice to the defendants and undue interference with the orderly progression of trial”. The court then turned its attention to whether the nursing notes surrounding P.C.’s care could be introduced as evidence in lieu of expert testimony normally required in a claim for medical malpractice.

The court emphatically opined that the nursing notes in the second admission of P.C. did not contain anything that could prove the nurse who wrote them could be qualified as an expert. Part of the nursing note in question was full of abbreviations, rather ambiguous, and her opinion that the blood transfusion was the result of P.C.’s subsequent health problems, including those for which he was re-admitted to the hospital.

Because P.C.’s death was due to a complicated medical condition, the cause of his death could not be “obvious or common in everyday life” to allow non-expert testimony support the cause of P.C.’s death.

Nursing documentation is essential and very important in any case as it relates to supporting or not supporting the nursing standard of practice and the legal standard of care. However, it cannot support a claim for medical malpractice when the standard of practice and standard of care require an expert witness to establish those standards.

The necessity for a nurse expert witness is also required when a nurse is alleged to have been professionally negligent.

You can read the entire case, and the nursing notes the court relied on, at www.leagle.com/decision/20052136882A2d1254_12072/CAVALLARO%20%HOSPITAL%20Of%SAINT%20RAPHAEL

FOOTNOTES

CAVALLARO v. HOSPSITAL OF SAINT RAPHAEL, 882 A2d 1254 (2005).
, at 1254.

Download PDF

Protect yourself with CPH Insurance.

Get a quote & apply online.