// Injury & Rehab: how to reduce your legal risk

This article is a little different in nature to my regular Injury & Rehab pieces as I feel there is a need for fitness professionals to gain an understanding of an increasingly common issue relating to client injuries: the health professional’s legal risks, obligation to keep their clients safe, and, ultimately, keep themselves out of court.

While I am not a lawyer, on a number of occasions I have been a professional witness in cases involving fitness facility members that have been injured either in their club or while under the guidance of a personal trainer. In one such case a gym member who suffered a lumbar spine injury while exercising filed a claim against the fitness facility for negligence, on the grounds that she should have been told to stay away from the piece of equipment that was thought to have caused her injury.

What I found most interesting in this case was that the piece of equipment – the back extension or Roman chair as it is sometimes called – was actually set up in the courtroom while I was giving evidence. It was almost as if the actual machine was on trial, with the experts arguing whether it was the guilty party.

During proceedings the judge asked me ‘Mr Wright, do you think that this piece of equipment should have a warning sign on it to let people know the risks involved in using it?’, to which I replied ‘Your Honour, there is a barbell on the floor over there that a gym member could do a thousand dangerous things with. It would not be possible to warn a member of every single risk – our gyms would be covered in signs’.

While it may be amusing to imagine the actual back extension machine being cross examined in the witness box, this case and the other I have been involved in highlighted the vulnerable position many health and fitness professionals place themselves in every day – and illustrated how easy it is to get caught up in a soul destroying legal case.

My experience working as a physiotherapist inside fitness facilities for more than 20 years has taught me that the majority of fitness professionals are not taking adequate steps to reduce their legal risks. The following simple tips may save you a lot of legal pain and help protect you from litigation.

TIP 1: Take a good injury history

A major point to come out of the back injury case involving the back extension machine was that the health club involved needed to take greater steps to find out about the member’s pre-existing back injuries. This should be a warning to all health professionals to ensure every new member and client undergoes a thorough medical history check.
I have serious concerns about the growth of ‘low supervision’ style gyms. In addition to new injuries brought on by unsupervised exercise, new members run the risk of aggravating pre-existing injuries. It will be interesting to see what happens in the next few years as the popularity of these clubs grows.

That being said, there is no greater defence that a competent health professional can present in an injury case than a well documented and thorough pre-exercise history. It is imperative therefore to get all new clients to complete a well constructed pre-exercise questionnaire and to back it up with a series of questions to make sure all items are covered. Network members can download a Pre-exercise Questionnaire form by clicking here www.fitnessnetwork.com.au/gymbag and selecting the form from Administration Documents in the Personal Training section.

TIP 2: Ensure your equipment and exercise area is safe

A real and common danger for many fitness professionals is the potential for client injury due to equipment failure. One of the first questions asked after an incident will be ‘when was the equipment last checked for safety?’ At this point, the ‘litigation-aware’ health professional reveals their up-to-date and comprehensive ‘equipment maintenance schedule’ and look up the details of the last equipment check.

A number of years ago while exercising in a country gym, I was in the middle of a heavy set when the cable crossover machine collapsed around me. While I was unhurt (and somewhat proud that I had actually been able to overpower this piece of apparatus), it could easily have been a different story, causing me significant injury and making me unable to work for an extended period of time. When informed of my mishap the gym owner laughed and said ‘I haven’t got around to bolting it to the floor yet – you must have had a heavy weight on it?’ – a boost for my ego, but I’m not convinced his reply would have stood up too well under cross-examination.

The issue of providing a safe area also has implications for trainers running outdoor sessions and boot camp programs. Make sure you check the area you are planning to use in your session for risks such as logs and sticks, broken glass, uneven surfaces and holes, poles and other obstructions, as well as obvious dangers like other exercisers and cyclists. Network members can download a Risk Assessment Checklist by clicking here www.fitnessnetwork.com.au/gymbag and selecting the form from OH & S Resources in the Club/Business section.

TIP 3: Keep good records

In the majority of legal cases I have seen, one of the first actions taken is for the legal team of the injured person to request copies of the client’s records. In the area of physiotherapy this will be clinic records and other paperwork relating to the patient. In relation to fitness facilities and personal trainers, it may be the person’s pre-exercise questionnaire, their acknowledgement of informed consent to the potential risks of exercise and also the records of their actual workouts and individual sessions conducted with the trainer.

At this point in time, I believe that I could walk into the majority of fitness facilities and less than 50 per cent of the personal trainers working with clients on the gym floor would have a pen and piece of paper (or an electronic program recording device). This effectively means that when the legal team for the injured client requests copies of the client’s program to review, the trainer would be forced to say ‘I don’t take any notes’ – not a great response.

You need to record anything and everything that happens in your sessions that may be of some future significance. Do not rely on your memory, it will fail you and make you appear unprofessional if cross-examined. Record the exercises prescribed, warm-ups completed, sets and reps and details of any pain or issues that were mentioned in the session. You cannot be too thorough in your record keeping; the detail and quality of your records will re-enforce your level of care and professionalism.

TIP 4: Find a higher authority

One of the simplest and most effective methods of reducing your legal risk is to find a higher authority to allocate and deflect some of the responsibility for that client to. My physiotherapy clinics are located within Fitness First clubs, and not a day goes by without one of the trainers arriving at the clinic reception desk with a client to ask our therapists’ advice on the best way to deal with their client’s specific injury or concern.

This is a smart strategy on the part of the trainer; they have been informed of a potential injury issue and have sought advice from a higher authority, in this case a physiotherapist. If the trainer was right on their game they would have documented the details of the injury-related conversation into the clients notes, i.e. ‘spoke to Paul Wright at Get Active Physiotherapy regarding Brian’s shoulder and was told to ...’

This situation opens up a range of legal issues for my therapist, including the therapist’s ability to give advice without a full consultation to confirm diagnosis. However, from the trainer’s perspective they have taken a solid path to reduce their legal risk.

In all cases of client injury the fitness professional needs to search out a higher medical authority to reduce their level of responsibility and increase the chance of the client getting a great outcome. Taking the responsibility of injury management and illness on your own shoulders is a risk often not worth taking.

Summary

In order to confidently pursue a rewarding and successful career, fitness professionals need to be aware that there are legal risks involved in our industry and to understand these risks when dealing with clients.

Naturally, everyone who works in our industry should have adequate and comprehensive legal insurance in case they are named in a legal case. However, prevention is better than cure, so when making every decision in relation to their clients’ programs, fitness professionals should come back to the simple question of ‘what would a safe and competent fitness professional do in this situation?’ If you make all your decisions with this question in mind then you are taking steps to reduce your legal risk.

 

Paul Wright, BAppSc (Physio), DipEd (PE), Adv Dip. (Bus Mgmt)
Paul is the director of Get Active Physiotherapy with clinics located inside Fitness First clubs at St Leonards (Sydney) and Kotara (Newcastle). His two-hour Potentially Dangerous and Ineffective Exercises DVD can be previewed and purchased by following the links to the DVD store at www.getactivephysio.com.au or emailing admin@getactivephysio.com.au


NETWORK MAGAZINE • SUMMER 2010
• PP26-28