To examine the importance of such standards and guidelines, specific subject matters should be looked at. Although some in the fitness industry believe a screening process should not be utilized with members (some facilities feel they are not qualified to interpret the results), the ACSM standards require that screening efforts be undertaken on behalf of members prior to activity.
Failures to screen can lead to a wide variety of claims and suits including, for example, a relatively recent case of a 40-year-old man who sought clearance to participate in an exercise program but, thereafter, suffered a myocardial infarction and died as a result of participating in activities that his estate later claimed were related to his exercise activity. Among the allegations that were asserted in this case was the claim that the man should not have been cleared to participate without an exercise stress test, which was not performed prior to his participation. His estate was awarded nearly $500,000 in a claim asserted against the defendants. Although screening is a different process than testing, the case is illustrative of the kinds of claims that may be asserted.
In order to minimize risks, fitness professionals must adhere to industry standards, guidelines and other similar statements as published by authoritative professional organizations. In addition, facilities must develop, implement, utilize and properly act upon client screening devices prior to allowing individuals to engage in activity. The Par-Q form or comprehensive health history questionnaires, among others, are readily available to provide a means of acquiring information that can be used to determine whether an individual should be referred to a health care provider prior to engaging in activity. The acquisition of such information is not for the purpose of diagnosing any individual’s condition or disease/disability, but rather to determine whether a person simply needs referral to a physician prior to engaging in activity. In the event that an individual refuses to obtain such a clearance, facilities should consider requiring the execution of a waiver/prospectively executed release, or at least an assumption of risk document that transfers the risk of injury/death to the participant.
Aside from screening, emergency response considerations are among the most important for health and fitness facilities to consider. There have been a number of litigations related to staff members not appropriately responding to serious events occurring to facility users. These suits include a 1996 award to a 21-year-old college student of approximately $5 million for injuries she suffered due to an alleged failure of university recreation center staff to provide appropriate emergency response to her when she went into cardiac arrest while exercising. To adequately respond to untoward events, facilities should develop written emergency response plans that are regularly updated and rehearsed by staff members. Staff members assigned to carry out such plans must be adequately trained in CPR and first aid.
As part of any ongoing risk management program, and aside from the situation where a consumer refuses to obtain medical clearance after screening indicates that he/she should do so, facilities should consider developing and using express assumption of risk documents or, where they are available for use and enforceable, prospectively executed waivers and releases for the purposes of transferring risk.
Increasingly, the court system is giving legal effect to such documents and allowing individuals to prospectively release facilities and their personnel from a variety of claims, including those which may be related to the active or passive negligence of those released by such documents.
While claims related to willful/wanton/intentional conduct or those related to criminal acts will not be protected through prospective release or waiver documents, such documents can be beneficial when defending against negligence claims.