Top Legal Issues of the Past 20 Years
David L. Herbert
Standards and guidelines
Some 20 years ago, relevant standards and guidelines were just beginning to be addressed by the fitness industry. When the American College of Sports Medicine's (ACSM) first edition of its Health/Fitness Facility Standards and Guidelines published in 1992, there was not, then, a published guide for professionals in the industry to follow. However, 20 years ago, beginning essentially in the 1980s, the profession saw the development and publication of a myriad of written standards, so-called "parameters of practice," and guidelines to assist the profession in the delivery of service to consumers. At this same time, the medical profession first experienced a remarkable growth in the development of written standards of practice, which, in 1988, the American Medical Association (AMA) called the most important medical story of the year. Standards development in the fitness industry during this time was also an extremely important development, which would foretell of things to come.
More than 20 years ago, ACSM published its first edition of its seminal publication: Guidelines for Exercise Testing and Prescription. This publication, which is about to go into its seventh published edition, was the first important and significant statement that established particular guidelines of practice applicable to certain health and fitness facility practices. ACSM's later publication of its Health/Fitness Facility Standards and Guidelines in 1992 represented yet another significant step in this area. However, at or about the same time, the AMA, the American Heart Association (AHA) and other organizations began to develop and disseminate other statements that contained standards of practice, recommendations or guidelines affecting the fitness industry in its delivery of service. Since these early standards and guidelines, segments of the industry have continued to engage in the publication of similar statements, which have had a profound effect on the delivery of services in this setting.
Standards statements are often used to establish standards of practice for the delivery of service in health and fitness facilities. They are also used to compare and judge particular conduct in relevant litigation through expert witnesses. The standards and guidelines development process is continuing, and will continue for some time in the years ahead. ACSM and the AHA have teamed up to publish at least one paper dealing with health and fitness facility practices, and ACSM is about to finish and publish its fourth edition of ACSM's Health/Fitness Facility Standards and Guidelines (expected to be published in late 2005 or early 2006). As this trend continues, professionals in the industry must stay abreast of developments that affect their practices if they want to avoid legal pitfalls, damages and suits while delivering service in accordance with accepted practices.
License to litigate
At or about the same time that standards and guidelines development began in this industry, the 1980s experienced what many believed was a rather dramatic increase in litigation in a variety of areas, particularly in medical malpractice and general personal injury cases, including those dealing with product liability. Ultimately, this trend began to spill over into the health and fitness industry. The 1980s and 1990s saw a somewhat dramatic increase in litigation dealing with exercise activities and the delivery of services in this setting. This litigation focused primarily on issues dealing with screening, recommendation/prescription of activity, supervision of activity and emergency response. Injuries associated with exercise equipment and activities that were treated in hospital emergency rooms throughout the United States began to increase starting in the 1980s -- at least until the most recent reporting periods when there seemed to be a decrease in the number of such injuries so treated. That trend may well portend a coming decrease in litigation associated with such injuries, despite the fact that some within the industry believe that litigation continues to increase against health and fitness facilities and fitness professionals with more litigation predicted to be forthcoming.
Along with the increase in relevant litigation over the last 20 years, the number of individuals testifying as experts in these cases also increased, and involved fitness practitioners, university and college educators, exercise physiologists, personal fitness trainers and others, all of whom opined from one perspective or another in these cases -- either to attack the care given or the lack thereof, or from a defense perspective, to support the delivery of service. As of the turn of the last century, at least one significant case was pending against a health and fitness facility dealing with the alleged recommendations of a personal fitness trainer, and involving claims in excess of $320 million.
As a result of the development and publication of standards of practice, coupled with at least a perceived increase in litigation associated with health and fitness facilities, a number of somewhat subtle events also occurred over the last 20 years that may be viewed as beneficial off-shoots of such litigation. First, health and fitness facilities have become better designed and more "tuned in" to the needs and desires of their customers. Facilities themselves have also became safer. The exercise equipment located within such facilities has become increasingly safer to use. Better design and manufacturing techniques have reduced the number of dangers associated with such equipment and, as a consequence, claims related to products liability issues pertaining to exercise equipment have been, and should continue to be, reduced.
Also during this time period, fitness professionals became more educated, better trained and more qualified than in years past. Efforts presently under way by the International Health, Racquet & Sportsclub Association (IHRSA), as well as those of the National Board of Fitness Examiners (NBFE), have been designed to help improve the qualifications of personal fitness trainers. In the last few years, IHRSA has been pushing for its member facilities to hire only those personal fitness trainers who are certified by an organization that is accredited by an entity such as the National Commission for Certifying Agencies (NCCA) or a similar specified entity. This is in hopes that the qualifications of the certification organizations and their students might be objectively established. Efforts by the NBFE are designed to create an examination and registration process for personal fitness trainers so that facilities will know that such professionals have the proper training, background and experience to competently render service as judged by a respected third party.
Waivers and releases
Coupled with the increase in health and fitness facility use and exercise activity in the United States, there has also been an effort by health and fitness facilities to minimize the occurrence of untoward events, claims and related lawsuits. This has taken many formsbut, among other risk-management techniques that have been employed in this industry, more facilities have moved toward the use of waivers of liability or releases. This ensures that individuals using these facilities give up or relinquish their rights to sue in advance of the occurrence of any untoward event. While such documents in the past were viewed as not being worth "the paper they were written on," most releases and waivers of liability are now valid in the vast majority of states. Litigation as to these issues has frequently been filed over the last 20 years, which has dealt with a number of concerns and matters primarily dealing with the execution process associated with these documents and the wording of the waivers themselves. Generally, the courts have taken a favorable attitude toward such documents, more frequently than not allowing them to be effective, to release those "normal" untoward events associated with health and fitness facility activities.
The advent of AEDs
Of late, particularly over the last several years, a number of lawsuits have focused on alleged deficiencies in the emergency response process by health and fitness facilities toward their members and guests. Originally, such suits focused on the lack of appropriate CPR emergency response. However, most recently ,the suits filed have dealt with the alleged failure to have an automated external defibrillator (AED) present for use when needed, or the alleged failure to use such a device in these facilities where an AED was installed. As a consequence, many health and fitness facilities, and now various state legislatures, are moving toward mandating the presence and use of such devices within these facilities, along with the presence of CPR/AED-trained and certified individuals to carry out appropriate emergency response activities.
Stay aware of changes and issues
Developments that have occurred over the last 20 years in the health and fitness industry pertaining to various legal issues will continue to occur, all of which will have an effect on what will transpire in the next century and beyond. More Americans are reaching older ages and are using health and fitness facilities, which will require a higher standard of care, particularly when the industry knows that untoward events are more likely to occur with such populations. The industry must stay abreast of developments in this area to properly deal with relevant areas of legal exposure.
Facility of the Week
Ithaca College Athletics and Events Center