In 2015 and so far in 2016 at least three verdicts or settlements approaching or exceeding $1 million have occurred in the fitness industry. One jury verdict alone exceeded $14 million.
When considering what can be done to avoid claims and suits, health club owners and fitness professionals must remember that untoward events, injuries and even deaths will occur during exercise. Although such events (particularly the most serious ones) are rare, it is just a matter of time until one happens. Given the foreseeability of such occurrences, health club operators must take steps to avoid and/or manage the risks to their clients, their club and their staff with a solid risk management plan.
Risk management consists of an initial and ongoing examination and assessment of the delivery of fitness services for certain areas of concern. The process first identifies risks and then eliminates, reduces or manages those risks through various means and methods. Some risks associated with sports, fitness and recreational activities can't be entirely eliminated since inherent risks are associated with participation in those activities.
Here are three steps to take:
1. Assess. The first step in developing a risk management plan is to assess the physical plant—the place where activity takes place. Professionals should conduct a review of the facility and note those areas where untoward events have previously occurred, such as wet areas. In addition, facility owners should watch the activity in those areas and how those activities are carried out to determine what may need to be done to reduce the risk of untoward events.
As an example, professionals should see if facility exercise equipment is working properly. To do so, ask the following questions:
- Is there a proper maintenance plan in place for equipment?
- Is equipment which is in need of repair taken out of service – unplugged, roped off, removed from the exercise floor?
- Are records of maintenance, repair and replacement of equipment kept in some written or electronic form?
- Are untoward events documented with incident reports and used to solve potential problems as well as for the purpose of managing claims or suits?
- Are floor personnel, including personal trainers, adequately instructing, training and supervising clients?
- Are client records documented, maintained and preserved for evidence of proper screening, assessment, exercise and fitness activity exercise progression?
- Are client problems readily resolved?
The identification and assessment of the physical plant, equipment and services provided and the creation and maintenance of records for each area of concern are the foundation of all risk management activities.
2. Eliminate or reduce. Once problems are identified, the risk management plan must eliminate or reduce risks. For example, you could:
- Add slip-resistant flooring to wet areas
- Develop and implement client screening, supervision and exercise program records for use during client instruction
- Develop equipment maintenance records, including reports
- Develop emergency response planning.
The point is to assess, evaluate and implement a system to enhance client safety as well as to enhance defensibility of fitness professionals and facilities if a claim and suit should arise.
3. Offset. Once risks are identified, assessed, eliminated or reduced, health club operators need to offset the risks that cannot be reduced or eliminated. Some risks can be offset by the use of written releases or waivers of liability. In states where such documents are not recognized, offset risk through written express assumption of risks. The bottom line to any risk management plan is the purchase of liability insurance to cover the activities occurring in your facility.
We live in a litigious society, so the unfortunate truth is that no health club or fitness professional is entirely immune from a claim or a lawsuit (even with a strong risk management plan). Professional liability insurance coverage will protect you from allegations such as malpractice, negligence, or professional errors and omissions. For example, what if a client injures themselves due to improper form? You would like to believe your clients wouldn't hold you liable, but if medical bills are on the line, they could claim that you are responsible.
Independent trainers who have contracts with gyms or studios likely are required to provide proof of professional liability insurance coverage to train clients. On the other hand, trainers who are W-2 employees likely are covered under that studio's insurance policy. In the case of W-2 employees, it's also possible to obtain an individual insurance policy to ensure adequate coverage in the event of a claim or lawsuit. For approximately $100 per year, an individual policy can provide an additional layer of protection (and peace of mind). Insurance coverage provides both a defense and indemnification from judgment up to the amount of the insurance. Don't go without it.
Note from authors: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.)
David L. Herbert is attorney at law at David L. Herbert & Associates LLC, attorneys and counselors at law, Canton Ohio. He is also editor of The Exercise, Sports and Sports Medicine Standards & Malpractice Reporter, which is published by PRC Publishing Inc., Canton.
Rachel Brusstar is marketing director of CPH & Associates, a provider of professional liability insurance for wellness and fitness professionals.