by JoAnn M. Eickhoff-Shemek, Ph.D., FACSM, David L. Herbert, J.D., and Daniel P. Connaughton, Ed.D.

Introducing the Risk Management Pyramid

Health/fitness professionals are

familiar with various pyramid

diagrams that have been devel-

oped to depict and summarize certain

actions or behaviors that individuals can

take to improve their health. For example,

the Food Guide Pyramid, Activity Pyra-

mid, and Life Balance Pyramid (1) suc-

cinctly provide recommendations with

regard to nutrition/diet, regular physical

activity, and behavioral components of a

balanced lifestyle, respectively. A well-

known and established pyramidVthe

Food Guide PyramidVhas been revised

and is now referred to as the MyPyramid

Food Guidance System (2). It was de-

signed to help educate Americans about

making healthy food choices and being

physically active in their everyday activi-

ties. A new pyramid, the Risk Manage-

ment Pyramid designed specifically for

health/fitness professionals, is being in-

troduced in this column to help educate

health/fitness professionals about making

wise choices with regard to the safety of

their participants while also protecting

themselves from potential legal liability.

THE RISKMANAGEMENT PYRAMID

Using the Risk Management Pyramid

will not only help minimize the occur-

rence of untoward events and related

medical emergencies from ever occur-

ring in health/fitness facilities but also

help protect health/fitness professionals

and/or facilities from costly negligence

claims, lawsuits, and liability after a med-

ical emergency does occur. In this regard,

risk management may be defined as Ba

proactive administrative process that will

help minimize liability losses (e.g., claims

or lawsuits due to negligence) for health/

fitness professionals and the organiza-

tions they represent^ (3Ep. 9^).

Because negligence is a common type

of legal liability exposure that health/

fitness professionals regularly face, the

Risk Management Pyramid focuses on

preventing or minimizing negligence. A

defendant (a health/fitness professional

and/or facility) can be held liable for neg-

ligence if the plaintiff (the injured party)

can prove that the defendant breached

a duty (e.g., failed to conform to a gen-

erally accepted standard of care) and

that the breach of that duty proximately

caused harm.

The Risk Management Pyramid

(Figure) provides seven lines (or layers)

of defenses that reflect risk manage-

ment strategies that health/fitness pro-

fessionals can develop and implement

to help prevent and/or minimize medical

and other emergencies and subsequent

negligence claims and lawsuits. Each

line of defense is briefly described in

the Risk Management Pyramid. The

seven lines of defenses collectively rep-

resent the elements of a Bcomprehensive^

risk management plan that all health/

fitness facilities should

have in place to protect

themselves and their

programs.

The first three lines

of defense are consid-

ered the foundation of

a comprehensive risk

management plan and

are important to iden-

tify and implement be-

fore proceeding with

the specific actions de-

scribed in the remain-

ing lines of defense.

For example, knowing the laws (statutory,

administrative, and case law) that are

applicable to the health/fitness field as

well as published standards of practice

(e.g., standards, guidelines, position pa-

pers published by professional organiza-

tions, and safety specifications published

by exercise equipment manufacturers) is

essential for health/fitness professionals.

Without this knowledge, it is unlikely

that health/fitness professionals will fully

understand and appreciate their many

legal responsibilities.

The fourth line of defense focuses on

being proactiveVthinking through the

many foreseeable risks that can occur

in fitness programs and then taking ac-

tion that involves developing risk man-

agement strategies in the form of written

policies and procedures that address

these risks. Once these strategies are de-

veloped, staff members must be well

trained on how to properly comply with

these policies and procedures.

When a medical emergency occurs,

it is critical that all health/fitness fa-

cilities not only have a written medi-

cal emergency action plan in place to

The Legal Aspects

VOL. 12/ NO. 5 ACSM’s HEALTH & FITNESS JOURNALA 37

Copyright @ 2008 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.

address such occurrences but that staff

members carryout the emergency action

plan properly, as described in the fifth

line of defense. For example, not ad-

hering to published standards of prac-

tice that now require health/fitness fa-

cilities to have an automated external

defibrillator in place in their programs

(4) not only can result in claims based

upon ordinary negligence but also may

result in claims of gross negligence

as well (5).

For example, in a recent Illinois case

dealing with a claim of gross negligence,

Fowler v. Bally Total Fitness Corp., the

court stated Bthere is nodenying the fact that

Bally (the defendant) knew with 100% cer-

tainty that dozens of itsmembers would ex-

perience heart attacks and die each year, and

instead of pursuing a relatively cheap and

easy solution to the problem through the de-

ployment of automated external defibril-

lators at its health facilities, Bally chose to

consciously disregard this known risk.

That strikes this Court as the very defini-

tion of gross negligence^ (5Epp. 22Y24^).

It is important to recognize that in most

states, waivers (depicted in the sixth line

of defense) will not protect defendants

from gross negligence and that liability in-

surance policies (described in the seventh

line of defense) generally do not pay for

punitive damages that are often awarded

when a defendant(s) has been found liable

for gross negligence.

CONCLUSIONSBecause of the inherent relationship that is

formedbetweenhealth/fitnessprofessionals

and their participants, the law requires that

health/fitness professionals provide reason-

ably safe facilities and programs for their

participants. This legal requirement (or

duty) is carried out through adherence to

the proper standard of care. The programs

can be protected from legal claims and re-

sultant litigation through the development

and implementation of a comprehensive

risk management program that is reflected

in all seven defenses in the Risk Manage-

ment Pyramid. In the next legal column,Figure. The risk management pyramid.

VOL. 12/ NO. 538 ACSM’s HEALTH & FITNESS JOURNALA | www.acsm-healthfitness.org

The Legal Aspects

Copyright @ 2008 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.

we will address the specific steps in the

risk management process.

References1. Health pyramids table tent. Park Nicollet.

Available at http://www.parknicollet.com/healthinnovations/shopping/ProductDetail.cfm?productid=2711-36. n.d. AccessedMarch 29, 2008.

2. Development of MyPyramid. MyPyramid.gov.United States Department of AgricultureVFor Professionals. Available at http://www.mypyramid.gov/professionals/index.html. n.d.Accessed April 8, 2008.

3. Eickhoff-Shemek, J.M., D.L. Herbert, and D.P.Connaughton. Risk Management for Health/Fitness Professionals: Legal Issues andStrategies. Baltimore: Lippincott Williams &Wilkins, 2009.

4. ACSM’s Health/Fitness Facility Standards andGuidelines. 3rd ed. Tharrett S.J., K.J. McInnis,and J.A. Peterson (Editors). Champaign:Human Kinetics, 2007.

5. Herbert, D.L. Illinois AED case to proceedon gross negligence claim. The ExerciseStandards and Malpractice Reporter 22(2):17,20Y24, 2008.

JoAnn M. Eickhoff-

Shemek, Ph.D., FACSM,

FAWHP, is a professor

and the coordinator of

the Exercise Science

program at the Univer-

sity of South Florida in

Tampa. Dr. Eickhoff-Shemek’s research

focuses on legal liability and risk manage-

ment issues in the health/fitness field. She

is the lead author (coauthors are David

Herbert, J.D., and Daniel Connaughton,

Ed.D.) of a new text entitledRiskManage-

ment for Health/Fitness Professionals:

Legal Issues and Strategies that will be

released by the publisher, Lippincott

Williams & Wilkins, in October 2008. Dr.

Eickhoff-Shemek is the legal columnist

and an associate editor ofACSM’s Health

& Fitness JournalA and is ACSM Health/

Fitness DirectorA certified, ACSM Exercise

Test TechnologistSM certified, and a

Fellow of ACSM.

David L. Herbert, J.D.,

is the senior member

of David L. Herbert

& Associates, LLC,

Attorneys and Coun-

selors at Law, Canton,

OH. He is coeditor of

The Exercise Standards and Malprac-

tice Reporter and The Sports Medicine

Standards and Malpractice Reporter. He

is an author or coauthor of 20 books,

numerous book chapters, and more than

500 articles on the subject of negligence

and malpractice, risk management,

standards and guidelines, and health and

fitness facility law and trial practice. He is

a frequent presenter to health, fitness, and

sports medicine groups including ACSM.

He is a trustee of the National Board of

Fitness Examiners, a member of the

Defense Research Institute, and a mem-

ber of the American, Ohio, and Stark

County (Canton, OH) Bar Associations.

Daniel Connaughton,

Ed.D., is an associate

professor in the De-

partment of Recrea-

t ion, Tourism, and

Sport Management

at the University of

Florida where he teaches and conducts

research in the area of sport law and

risk management. He received a B.S. in

Exercise and Sport Sciences and an M.S.

in Recreational Studies from the Uni-

versity of Florida, an M.S. in Physical

Education (Administration) from Bridge-

water State College, and his Doctorate in

Sport Administration from the Florida

State University. Dr. Connaughton is a

Fellow with the Research Consortium of

the American Alliance for Health, Physi-

cal Education, Recreation and Dance

and has won numerous teaching awards.

Finally, he is ACSM Health/Fitness

InstructorA certified and the holder of nu-

merous other professional certifications.

Dr. Connaughton has served as an expert

witness and legal consultant on many

sport- and fitness-related lawsuits.

VOL. 12/ NO. 5 ACSM’s HEALTH & FITNESS JOURNALA 39

Copyright @ 2008 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.