At the present time, personal fitness trainers (PFT’s) are in high demand.  Some health/fitness facilities report that receipts generated through the PFT services represent a major portion of their overall revenues.  Professionals who provide such services to consumers, often rightly believe that they are trained and possess skills that exceed those other fitness personnel who deliver aerobic activity instruction, circuit training or other exercise-related services to clients at health clubs.  Many within this service group also believe that they may evolve in the not too distant future to become part of the allied health care profession – immersing themselves in wellness and health promotion activities and gaining recognition eventually as a true health care service provider.

As a partial consequence of the foregoing demand and the corresponding growth in the PFT field, a number of organizations, including the American College of Sports Medicine (ACSM), the American Council on Exercise (ACE), the National Strength and Conditioning Association (NSCA), and the Aerobics and Fitness Association of America (AFAA) among others, determined some time ago that they would provide training and certification for the PFT.  Moreover, in 2005, a newly formed organization known as the National Board of Fitness Examiners (NBFE) began the development of a national registration process to create recognition of personal fitness trainers. The NBFE will establish a board for registered personal fitness trainers who are able to qualify for their exam and then successfully complete it.  The first offering of this NBFE examination is expected in late 2005 or early 2006.  Passage of the examination and subsequent registration with the NBFE should provide presumptive evidence of the qualifications of such individuals.  The process may become the “gold standard” for assessing personal fitness trainers’ qualifications and competencies in the future. 

In nearly the same time frame, the International Health, Racquet and Sportsclub Association (IHRSA) passed a resolution in late 2003 dealing with the qualifications of those organizations in the business of certifying personal fitness trainers.  This resolution, characterized as a recommendation by IHRSA to its member clubs, originally provided that by the end of 2004, organizations which offered certifications for personal fitness trainers had to be accredited by the National Commission for Certifying Agencies (NCCA) in order for their certified trainers to be recognized by IHRSA member clubs.  IHRSA’s resolution was later modified in March of 2005 to provide that other organizations recognized by the Council for Higher Education Accreditation or the United States Department of Education could also provide that same accreditation for certification organizations of personal fitness trainers.  The date and terms for compliance with the recommendation also were changed during this period.  A number of organizations, including the NSCA and ACE have been proceeding along this path, to secure such accreditation so that their programs might be validated in this manner. 

The foregoing efforts of both the NBFE and IHRSA have had a significant impact on the business and professionalism of personal fitness training and undoubtedly these effects will be extended in the future.  Many will envision that these steps enhance professionalism, recognition, and quality of PFT services. However, at the same time, this evolution also will surely impact the legal and risk management concerns for personal fitness trainers.  This will occur because the competency “bar” has indeed been raised for these professionals as a result of all the foregoing changes. 

A brief examination of the relevant legal and risk management concerns for PFT’s is a critical first step to addressing the elements of service and thresholds for competency that may be universally expected as this growing group aspires or evolves in the direction of allied health service.  The areas of greatest concern deal with pre-activity health screening of clients, utilization of such screening results, the development of physical activity recommendations and parameters for training, the instruction and supervision of physical activity, and the emergency preparations and timely fulfillment of such services in the event of client need.  To establish the benchmarks of expected performance in these areas, the PFT must examine professional standards and guidelines, procedures and protocols, the use of forms and other documents including waivers and releases, as well as liability insurance and other similar matters.

Recent surveys of selected health/fitness facilities conducted by a number of industry professionals, including these authors, have demonstrated that many health clubs and fitness facilities and the professionals working within them have not routinely provided pre-activity participant screening.[i]  Clearly the applicable industry standards and guidelines mandate that such screening take place prior to the individualized “prescription” or recommendations for beginning activity to participants, especially if the expected aerobic and/or strength exercises include those of moderate or higher intensity.[ii]  While these same recent survey results also indicated that many industry professionals were unaware of at least some of these standards, it is essential to understand that the lack of familiarity with these statements is not a defense for failing to adhere to such standards. In fact, a failure to screen or even perform screening in a manner consistent with these standards which proximately results in client injury may actually increase the likelihood of legal claims and suits based upon negligence.  This unfortunate situation may be even more likely for personal fitness trainers who can probably be expected to be held to a higher standard of care than most other fitness professionals.[iii]  While PFT’s may not yet be classified as health care professionals and therefore subject legally only to negligence actions (not medical malpractice type lawsuits), legal claims and lawsuits against such professionals are likely to require expert opinion testimony to be successfully asserted against them.  Opinion testimony is generally provided in litigation by experts within a given field who provide opinions as to negligence, information about industry standards, and whether deviation or adherence to such standards occurred in the delivery of service by the defendant.  Such testimony then is used by fact finders such as juries to determine whether or not the defendant committed negligence through the delivery of substandard care which proximately caused harm to the person who brought the claim and suit - the plaintiff.  In cases against health care providers, including physicians, such cases are referred to as malpractice actions, which are often subject to somewhat different litigation rules than would be applied in non-medical negligence actions.  Even for the PFT delivering services within hospital-based facilities, as evidenced by developments in one recent personal injury lawsuit, has been subject only to ordinary negligence rather than medical malpractice type litigation rules.[iv] 

The process of providing individualized exercise parameters for a client (mode, intensity, duration, and progression) and the supervision provided by personal fitness trainers have been the subject of at several reported legal cases. The pattern of cases may represent a significant trend in regard to this kind of litigation.  Such suits have been filed predicated on claims of “negligent training, monitoring, instruction, supervision and advice,”[v] those related to the alleged development of unsuitable activity for clients[vi] and those related to other alleged deficiencies occurring over the course of ongoing personal trainer activity.[vii]  Client injuries based upon claims that clients were told to use too much weight, too much resistance or engage in too many exercise repetitions have been put forth with some regularity.[viii]  While such claims of negligence result in personal consequences to those directly involved in the litigation, these events collectively often result in industry actions and in some instances legislative proposals for licensure and other forms of proposed public regulation for personal trainers.[ix]

Emergency response concerns have greatly impacted the fitness industry over the last several years.[x]  These concerns relate to the provision of a proper response to emergency events by personal fitness trainers including those related to the need to provide cardiopulmonary resuscitation (CPR) and even automated external defibrillation (AEDs) in response to those untoward events.[xi]  Legislative actions have commenced in a number of states to address these concerns.[xii]  At the same time, new industry promulgated standards and guidelines are also expected to adequately address the issue.[xiii]

The foregoing legal concerns as well as others with which PFT’s and the facilities within which they provide service are faced every day can be addressed through a number of risk management responses.  While such items should only be addressed on an individualized basis through personal legal counsel and other similar advisors, trainers should: 1) adhere to authoritative standards and guidelines in their delivery of service; 2) utilize applicable protective documents such as informed consents to meet their legal duties when performing, for example, physical fitness appraisals or developing individual exercise plans with their clients; 3) secure express assumption of risk forms and/or waivers/releases from clients to protect themselves from successful claim and suit; and 4) secure comprehensive liability insurance to provide an insurance paid defense and even indemnification from any potential judgment where the other foregoing risk management techniques do not avoid litigation.[xiv]  Compliance must also be achieved for applicable licensure, certification or other governmental/professional requirements. 

Personal trainers are faced with a growing demand for their services by clients who will undoubtedly expect a greater professional expertise from such trainers.  PFTs must strive to deliver their services in accordance with published and authoritative industry standards and guidelines. This means providing services to clients that clearly will meet or exceed the legal standard of care.  Protection for the PFT also can also be achieved by maintaining annotated daily records that document day-to-day delivery of service to each client, how that service is consistent with industry standards and guidelines. Risks of suits may be further minimized through the use of appropriate legal documents (informed consent and express assumption of risk) designed to eliminate risk and by securing liability insurance to insure against those risks which otherwise cannot be completely eliminated.  Professionals may stay abreast of developments in this important area by reading industry publications such as THE EXERCISE STANDARDS AND MALPRACTICE REPORTER[xv] and comprehensive professional treatises such as LEGAL ASPECTS OF PREVENTATIVE, REHABILITATIVE AND RECREATIONAL EXERCISE PROGRAMS[xvi] now in its fourth edition.

† Senior Partner, Herbert  & Benson, Attorneys at Law, Canton, Ohio; Co-Editor, The Exercise Standards and Malpractice Reporter, Canton, Ohio.

‡ Professor and Director, Laboratory for Health & Exercise Science, Department of Human Nutrition, Foods, & Exercise, Virginia Tech, Blacksburg, Virginia; Co-Editor, The Exercise Standards and Malpractice Reporter, Canton, Ohio.

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[i] McInnis, Herbert, Herbert, et al., “Low Compliance with National Standards for Cardiovascular Emergency Preparedness at Health Clubs, CHEST, 120: 283-288.

[ii] See e.g., ACSM'S HEALTH/FITNESS FACILITY STANDARDS AND GUIDELINES, Second Ed. Human Kinetics, Champaign, IL, 1997.

[iii] Makris v. Scandinavian Health Spa, Inc., 1999 Ohio App. LEXIS 4416, analyzed in, Herbert, “Another Suit Over Personal Trainer’s Alleged Advice”, THE EXERCISE STANDARDS AND MALPRACTICE REPORTER 14(6): 95, 2000.

[iv] Community Hospital and Fitness Pointe Health Club v. Avant, 2003 Ind. App. LEXIS 1115 (June 26, 2003), analyzed in, Herbert, “Suit Arising Out of Personal Training Programs Not Health Care Malpractice Action”, THE EXERCISE STANDARDS AND MALPRACTICE REPORTER 17(4): 49, 52 (2003).

[v] See supra, footnote 3.

[vi] Herbert, “New York Case Against Personal Trainer Dismissed”, THE EXERCISE STANDARDS AND MALPRACTICE REPORTER 19(1): 13, 2005.

[vii] Herbert, “$320 Million Lawsuit Filed Against Health Club”, THE EXERCISE STANDARDS AND MALPRACTICE REPORTER 13(3): 33,36 (1999).

[viii] See e.g., Lund v. Bally’s Aerobic Plus, Inc., 93 Cal. Rptr. 2d 169 (2000), analyzed in, Cotton, “Carefully Worded Liability Waiver Protects Ballys from Liability for Personal Trainer Negligence,” THE EXERCISE STANDARDS AND MALPRACTICE REPORTER 14 (5): 65,68-69 (2000).

[ix] Herbert, “Nevada Legislature Looking as Regulating Personal Trainers and Other Fitness Professionals”, THE EXERCISE STANDARDS AND MALPRACTICE REPORTER 18(5): 65,68 (2004);  Herbert, “New Law to Regulate Personal Trainers Proposed in Oregon”, THE EXERCISE STANDARDS AND MALPRACTICE REPORTER18(2): 17,20-24 (2004); Herbert, “Fitness Instructor Law Proposed in California”, FITNESS MANAGEMENT 10(7): 21, June 1994.

[x] Herbert and Herbert, LEGAL ASPECTS OF PREVENTIVE, REHABILITATIVE AND RECREATIONAL EXERCISE PROGRAMS, Fourth Edition PRC Publishing, Inc., Canton, Ohio, 2002, [Chapter 11, Emergency Response Considerations for Health and Fitness Facilities].

[xi] Id.

[xii] Herbert, “Health Clubs and AEDs – New Legislation in New York, Rhode Island and Louisiana – Bill Pending in Illinois”, THE EXERCISE STANDARDS AND MALPRACTICE REPORTER 18(4): 54-59, 2004.

[xiii] ACSM is soon to publish its Third Edition to the publication cited in footnote 2, supra.

[xiv] See supra, footnote 10.

[xv] Published 6 times a year by PRC Publishing, Inc., 3976 Fulton Drive NW, Canton, Ohio 44718. 1.800.336.0083  www.prcpublishingcorp.com.

[xvi] Published by PRC Publishing, Inc., 3976 Fulton Drive NW, Canton, Ohio 44718. 1.800.336.0083               www.prcpublishingcorp.com.