The 'Waiver' - How to Respond

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RACastanet
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The 'Waiver' - How to Respond

Post by RACastanet »

Here is a question in need of an answer:

I recently started a new beginners class at the health club, and after the opening lecture, handed out the 'waiver'. It is a slightly modified version of the one used by Lori Loftus sensei (thank you Lori), and it covers liability issues rather well.

So, what is my dilemma? An older gentleman wishing to take the class called me today to advise me that earlier this year he had a stroke, but was now recovered. Was Uechi bad for him? Could he still participate? Well, I said thanks for the info, check with your doctor, and we will work with you if it is ok with him (or her).

The waiver form did its job by uncovering a potential problem. Now, do I treat him with kid gloves? Avoid rolls and falls and other conditioning involving impacts?

Advice please.

Also, what if a case of Hepatitis C or an HIV positive is documented?

Rich
Lori
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The 'Waiver' - How to Respond

Post by Lori »

Hi Rich-san,

Glad that the waiver has some use for you!

My reason for replying here is because I've been faced with similar situations - for the past five years I've taught an aqua-aerobics class at the local community center pool.

You probably know that I live in Florida - and most of the participants in my class were from the geriatric set - and a large percentage of them had serious health problems: prior strokes and/or heart attacks, replaced hips, back surgery, I even had one woman who had emphysema (sp?) so bad she placed her oxygen by the side of the pool and participated with the tubes running throught the water to her nose...

I was understandably nervous about taking such people in my class! They had all signed waivers with the city - and I had most of them sign my own personal waivers - (a bit more intensive than the copy I sent you) even though the city attorney informed me that if something DID come up - they would basically be worth less than the ink on the paper...

So what to do. There were various liablity policies I could have taken out - but my income from these classes was not enough to make the premiums worth it (I can hear my lawyer saying "but they would be worth it if you got sued!!!) and as of yet I haven't purchased any - and thankfully have had no problems. I wouldn't advise that as being the best course of action however - First: Check with the health club, and ask them for information on instructor liablity insurance that their instructors/trainers purchase (I'll bet the club doesn't cover them - the city didn't cover me!)

Second: Register and take a Red Cross Community First Aid and Safety course. It will cover rescue breathing - first aid - CPR - even some triage training. Take it and get your certificate. I've heard that it helps somewhat should any legal issues arise from some type of health crisis during your class.

Third: Get a statement from his doctor before letting him participate. You may wish to write a letter to his doctor advising him of the physical demands in your class. Just describe them to the best of your ability - you'll never cover everything - but give the doctor a basic picture as to the involvement of conditioning, endurance, etc. Then ask the doctor to write a statement about his patient's ability to participate in this type of class. I'm out of my league here - so get some real legal advice, but I did this with a few of my less-hardy students in that aquatics class and wouldn't hesitate to do the same if someone with prior health problems wanted to join my dojo.

Fourth: Assess this student's condition before every class - ask him how he is and how he's been feeling all day. Ask him frequently during class how he is doing. The red cross training will help you observe any danger signs.

Finally: Once you've taken those precautions - and any others that your lawyer advises - treat him just the same as you would any of your other students. Observe him a little closer perhaps - but don't treat him with kid gloves. He'll appreciate it and you'll relax eventually. He needs to know that he should communicate to you immediately any signs or symptoms of distress - then it becomes his responsiblity as the student. Try not to stress too much over it - I've been there and it really makes teaching tough. At some point you have to let go and trust the student to take responsiblity for their training health.

As for blood borne pathogens - I haven't had to deal with that one - but we've always had a policy that ANY and all open wounds are covered securely - this is listed in the dojo rules - anyone not taking care of this on their own cannot participate. Other than that I'm not sure where else to go with that subject.

Good luck.

Peace,
Lori
Shelly King

The 'Waiver' - How to Respond

Post by Shelly King »

Rich

I'm not an instrutor, or lawyer, or doctor, or anything else that can offer official information on this. However, I am someone who had to fill out that section on the "waiver". Two years ago I messed my back up pretty bad on the job. I straightened and twisted my spine and also herniated a disk. Two weeks in bed (I can now tell you how many flowers are on our wallpaper), year of physical therapy, twice weekly to my chiropractor for 6 months, and several steroid injections later, I'm better but only about 70% of my old self. I still have constant pain and no natural spine curvature. Needless to say, Dean wasn't real excited about taking me on as a student. He definately keeps a close eye on everything I do, almost to the point of being a pain-in-the-butt(yeah, you heard me). Anytime after class that I start to rub out a spasm or kink, he's right there checking-up on me. So the point of this, if they take the time to fill in that section, then they are usually concerned enough about themselves to go at their appropriate speed. It's OK to ask them how they are but don't make a big deal about it. Be concerned but don't pester.

------------------
Shelly
Robb in Sacramento
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The 'Waiver' - How to Respond

Post by Robb in Sacramento »

Mr. Castanet:

As you discuss this situation with your lawyer, you could touch upon such issues as whether your state recognizes assumption of the risk as a defense to tort liability. Most states have some variation of this defense, and even here in California where the defense was theoretically toast, it has been resurrected by the courts--especially in martial arts instruction situations. Essentially, assumption of the risk recognizes there are certain activities that are, shall we say, risky. Take snow boarding, or sky diving, or football, or the classic assumption of the risk case, watching a baseball game. Yes, you read that right, watching, not playing even, but just watching. In the watching the baseball game case, a spectator, as I recall sitting along the third base side, gets hit with a foul ball. Spectator sues. Court kicks the case. When you go to a baseball game, you should expect an occasional foul ball may come your way. You may get hit. Either accept the risk, or don't go.

When you take martial arts instruction, you may get injured (not likely, but you may). One either accepts the risk and participates, or one does not study martial arts. NOW, this is not to say that an instructor has license to injure students. In a California case involving a judo instructor, the court initially found liability because the instructor had been negligent in who he had paired the student with. One accepts a certain amount of risk when one studies martial arts; but lets not be stupid. One does not pair a 95 pound beginner with a 200 pound Yondan in a full contact sparring match (the yondan could sue, 'cause we all know it's the beginners who hurt us). Every student has a particular skill level and particular physical level. Failure to recognize the obvious limits of a student, and putting that student at risk, would risk loss of any protection you could find in an assumption of the risk defense.

Now, as to HIV (though I am more concerned with HEP), you will need to explore the privacy rights of the individual student. Does your state have a statute that extends protection to persons with disabilities or diseases with regard to those persons participation in endeavors generally open to the public? Does your state have a civil rights act that would cover these folks? What policies or statutes does your state have with regard to protecting the other class participants? Check with other schools and other athletic enterprises in your area to see what their policy is. If they are smart, they are following Ms. Loftus' advice with regard to blood exposure.

The most important thing is to find out what the rules are in your area, and what everyone else who is in a similar situation to yours is doing to comply with the rules. If your standard of care and standard of conduct is the same as that in the community, you stand a better chance of surviving litigation.

Peace,
Robb in Sacramento
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Bill Glasheen
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The 'Waiver' - How to Respond

Post by Bill Glasheen »

Rich

Boy, have you solicited some good advice!

In my high-volume UVa days, I had a process I worked out whenever I came upon a high-risk student in the screening process. I suggested that the student, their doctor and I needed to review all the activities that we do in the dojo, and make specific recommendations for each activity. The ones who aren't serious will go away. The really serious ones who have the kind of doctor that cares will work with you and make it worth your effort. And you'll have the paperwork to back you up should things get nasty - which they probably won't by then.

You can photocopy pages out of George's book that describe each activity, or you can summarize them yourselves. Topics to consider:

* Stretching
* Various breathing exercises
* General karate warmup exercises
* Any calisthenics done in class
* Kata
* Arm, leg, and body conditioning
* Bag, makiwara, and other device work
* Rolls, falls
* Prearranged kumite & bunkai (with or without special protection)
* Sparring (with or without special protection)

- Bill
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Bill Glasheen
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The 'Waiver' - How to Respond

Post by Bill Glasheen »

Rich

A few things that J.D. and Lori said have resonated in my head. I'd like to share what I'm thinking.

There's a saying in the cardiology community: if you've got cardiovascular disease somewhere, you have it everywhere. Now there are two types of stroke: occlusive and hemmorhagic. I assume this gentleman had an occlusive stroke, which means that he either had a clot form on a narrowed artery in the brain, or he had a piece of plaque break loose and lodge in a brain artery. Assuming there is no baseline change, this gentleman is at risk for more of the same. It could happen in the brain (a stroke). It could also happen in the heart (a heart attack).

It must be impressed on this gentleman that he needs a major lifestyle change (stop smoking, change diet, exercise, reduce stress) to reverse his cardiovascular disease. Karate could be a part of that life change. But it could also be the activity that breaks the next piece of plaque loose. He needs to understand that the transition period is not without risk.

And I'm glad you're up on your CPR. You may need it with students like this. Not to say you shouldn't take him. Frankly I hope he goes for it and turns his life around.

- Bill
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RACastanet
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The 'Waiver' - How to Respond

Post by RACastanet »

Thanks to all who replied. Yes, I'm current with CPR, but it has been awhile since I took a first aid class. As Chief Operating Officer I will appropriate a few dojo $$ and purchase a CPR ventilator mask. And yes, I have rubber gloves and a spray bottle of Bactien in my bag. If Len comes in tonight I'll have a ono-on-one chat with him about what to expect. As he is older, freestyle kumite is not necessary. Even excluding rolls, falls, and a few other things, there is much to do.

Rich
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Bill Glasheen
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The 'Waiver' - How to Respond

Post by Bill Glasheen »

Rich

Assume all blood is toxic, and standard precautions need to be taken. A box of latex gloves, paper towels, and something like Lysol spray is good to have readily available at all times. All who have cleaned up blood need to wash their hands afterwards.

Any time a participant gets a cut - no matter how small - the activity must stop immediately and the participant taken aside for first aid.

I've seen a few things that would make your toes curl. At one of the camps, two people were sparring and one individual cut his hand. One of the black belts came up to the guy and put the finger to her mouth to ****** the blood. Only after I screamed (too late) did she realize what a dumb thing she had done. We all need to understand standard precautions.

- Bill

[This message has been edited by Bill Glasheen (edited 09-28-99).]
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RACastanet
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The 'Waiver' - How to Respond

Post by RACastanet »

Well, the waiver is doing its job. Out of a dozen new faces, we have a dyslexic, gastric bypass, and a fused ankle in addition to the stroke. When you ask the question you must be prepared for the answers.

Bill: Hellllllllllllp!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Rich
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Bill Glasheen
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The 'Waiver' - How to Respond

Post by Bill Glasheen »

Rich

This isn't so bad. And frankly, you'll be a better teacher with this information up front.

Dyslexia
This person is going to get very confused when you start doing mirror image kata, and hojoundo on both sides. The extent of this depends on the extent of the dyslexia. Find out if they have a problem with knowing what is right and left. Do they get confused when driving if you say make a left turn? If so, you will find them switching between the forward and mirror image forms when you practice both in class.

Gastric bypass
Most of the problem with this is what people will do to themselves. This is the operation for morbid obesity. You make the stomach the volume of a thumb. The really bad eaters will just eat their way back to a higher volume stomach, or eat all the wrong things with the little that their stomach lets them. The fact that this person is in the gym is a VERY GOOD sign. The biggest problem for them in a physical activity will be making sure they eat enough of the right food. I'd highly recommend a multivitamin & multimineral supplement (their doctor probably has them on one anyway), and make sure they have enough calcium and magnesium (get a supplement that has both of these). Also, post-gastric-bypass patients often have lots of loose skin. LOTS of loose skin. Other than the asthetic piece, they need to worry about hygiene under the skin folds. The gym breeds lots of nasty dermatologic vermin (bacteria, fungi, etc).

Fused ankle
No big deal. There will be things that this person cannot do, like put the foot in the proper angle for certain kicks, seisan jump on that leg, etc. This is a good challenge for a good instructor. Modify all techniques so that they work for this person. You will likely not hurt them. Their own limited range of motion and pain will keep them in line. Occasionally they'll suffer from odd problems like back, hip, or knee pain because of the compensation needed to function semi-normally.

- Bill
Moe Mensale
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Location: Boca Raton, FL

The 'Waiver' - How to Respond

Post by Moe Mensale »

Rich/Lori,

I would like to see the waiver form if possible. You seem to some additional "meat" that I don't have on mine.

mjmensale@aol.com or fax to 954-421-8044.

Thanks,

Moe Mensale
natalie lane
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Joined: Thu Sep 17, 1998 6:01 am
Location: dartmouth, ns canada

The 'Waiver' - How to Respond

Post by natalie lane »

Hi Rich-

Do you have my email? Send me your fax number via email, I have some forms for you to look at.

As a fitness and weight room instructor, we have people fill out a brief medical form called a PAR-Q. If they answer yes to any of the few questions, we give them an attachment to take to their MD, which he fills out and signs. They then return the attachment to us, and we are clear to go ahead with the program. These forms cover the basics: heart problems, undiagnosed chest pain, joint problems, blood pressure(and bp medication), etc.

I have been told that employees are covered by the liability insurance of the facility where I work, provided proper procedure is followed, so I don't do any programs without getting these forms signed.

You may want to adopt these PAR-Q's in addition to your waiver.

Natalie
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RACastanet
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The 'Waiver' - How to Respond

Post by RACastanet »

My fax # is 804-560-8664.

Thanks, Rich
Lori
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The 'Waiver' - How to Respond

Post by Lori »

Moe: email me and I'll reply with an attachment.

Natalie: I'd love a copy of those myself - still have my fax number? If not I'll email it - if you don't mind sending me a copy too!

Peace,
Lori
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