Mastering the Maze of Legal Liability in Fitness w/Hasson Barnes

And to do that , an episode 111 , will join my Hassan Barnes . Hassan is an attorney based in Baltimore , maryland , and this is going to be a conversation around limiting legal liability for fitness professionals . Now , fair warning , this isn't an exciting or a fun conversation . Rarely are conversations with lawyers exciting or fun .

The goal of this conversation is to be proactive , to understand the things that you can do as a fitness professional to limit your legal liability and exposure and , as we'll touch on in this episode , working with a higher risk population medically , like a number of our professionals and listeners do , even amplifies the concerns around liability that we're going to talk

about in this discussion that much more so I hope there's a lot of information in this conversation that you can use to limit legal liability in your practice as a fitness and exercise professional . Any information we'd like to share with you from today's episode can be found on the show notes page that's been going to wellnessparadoxpodcom forward slash episode 111 .

Please enjoy this conversation with Hassan Barnes Today . We're delighted to be joined by Hassan Barnes . Hassan , thank you so much for joining us .

So hopefully this conversation allows our listeners to be a little bit more proactive about how they can mitigate liability issues in what they do and certainly in our very litigious society . That's an important consideration . But before we dive into the discussion , just give us a little bit more of an idea of your background for some context .

So for the issue of liability , we see it all . We see whether it's people in personal training or in general . Small businesses get sued all the time and we get involved on the back end Once things have gone wrong , contracts have been signed the wrong way , once liability has been established , then we get involved and by then sometimes it's too late .

So we work with clients on the front end as well to make sure they do things the proper way , make sure they have legal counsel in place , make sure they sign proper contracts , make sure they review contracts and they understand what it means . A lot of times we see people sign contracts because they think it means something versus what it really means .

We represent clients in all stages , whether that's in litigation in court , whether it's in mediation , whether it's arbitration or even negotiation . We help clients form companies , whether it's LOC or corporation . We help them form for the purpose of liability limitation and for the purpose of growth .

We also advise clients with their other professionals , whether it's a CPA or an accountant . We help them advise as to what needs to happen going forward and what they can do to better their business . We've been practicing in the area for some time and we're seeing some consistencies with small businesses and small actors in terms of not thinking about liability .

When you're working , you're hustling , you're trying to make it work and try to build your brand . Liability is the last thing in your mind , but it shouldn't be .

So typically if you're doing business and the fitness arena whether you own a gym or whether you're a personal trainer there's certain level of liability based on the work that you do personally . So if you're a trainer , it could be liability for the trainer that you give your client .

So say you're doing a workout with a client and they're doing push-ups and they tear their rotator cuff . That's not a usual injury but it may happen . They may claim you're liable because , as a professional , you didn't properly advise them , even though we all know what a push-up is , we all know how push-ups work .

But you didn't properly advise them when you didn't check their medical history to know they probably shouldn't do push-ups . And that's the best actual professional liability . There's general liability as well . Say you have a shop and you have a gym and someone another patron puts a weight down and someone falls over . Well , there's nothing you did personally .

A third party did it , but you're liable for it . You have general liability for it because it's your shop You're liable for what goes on in the gym . You're liable for things being misplaced . Now it gets to be more complicated when you have a physical structure .

It could be premises liability , which may change that some , but in general liability means you're on the hook for something and you may be required to pay money and or perform a service , and the amount of liability would determine is based on the happening right .

So whether person was injured , whether and keep in mind , guys , we're talking about fitness when you do and you operate as a business , whether you're sole proprietorship or LLC , is more than just the work you do .

They may sue your business in general for all kinds of things that you wouldn't assume you'll be liable for , whether breach of contract , inter-fansable contract , and your liability is limited or expanded by what exactly they're claiming you did wrong and what harm you may have caused .

Unpack that for a second , because I think most personal trainers think , oh , I'm just going to go into business by myself and I'll just start training . There's a liability element to that , so maybe talk about the benefits of incorporation and how that acts to limit liability .

The reality is , a sole proprietorship is what the IRS uses to do tax purposes , but it means you have no shield in liability . The only reason people form companies is the limit liability , whether it's corporation or LLC . Llc is a limited liability company . They had liability in the name of it .

The goal of an LLC is to make sure you're a separate entity from your company and you do that for the purpose of limiting what a person can see you for . So if I'm a trainer , I'm trainer Hassan Barnes and I'm training people on doing a marathon . I'm a former runner in a past life . I used to love to run . Don't do it much anymore .

My knees are shot . I used to run , but I'm training people on running . I'm a trainer . I'm training them on long runs and short runs and sprints and I'm doing it under my own name . If someone gets hurt , they consume me individually , which means my bank accounts are open to them . My home is open to them .

My car is open to them , my other parts of investment is open to them and they may go after and reach in and grab some for set a file of their liability . However , if Hassan Barnes did it under training extraordinary LLC , I'm not liable for anything . The LLC is a shield . It's my liability , the company is liable .

And guess what , if the company has no money ? There's no money , it's broke . You can close it down and walk away . That's the benefit of having an entity and we talk about formation of entities all the time and a lot of times small businesses don't want to form Most states . You have to pay a tax every year .

In Maryland you have to pay $300 every single year to maintain your LLC or your small company . But it's worth your time and your money . It's a way to limit your liability to the world and it's more professional . When people see that you're operating under LLC , a given pressure to the outside world that you have your ducks in a row .

When you're operating as your own name , people know very soon that you have a . You have exposure there and they'll take advantage of it .

Let me ask another question , because it's a word that seems to circle around this and before we dive more specifically into things , I think it's important to get a definition out there . There is the idea of with liability , negligence , right , like you somehow done something wrong , how does negligence apply to liability ?

You hear those terms get used in context pretty similarly .

It was too crowded in there or the equipment wasn't wasn't the proper equipment , you didn't have the proper distance between the parties , you didn't tell the technique the right way , right , People weren't doing proper technique . That meant you were negligent as a professional . You didn't do what's required to be done in your field .

Just professional liability , General liability . You're not going to be negligent . You can be . It's been more amorphous , right ? So the general ability example I gave is someone's spelling your shop and you may be liable for it . I mean you're liable because you're the one prime example .

Say , you were showing a workout to some people and to some guests or some clients , and a client was behind you and you dropped the weight and they walked up and hit that foot . Well , when you dropped it , you didn't see them . Should you have known they were behind you ? Maybe , maybe not .

They may have had no reason to be behind you , but they were and they got injured . Guess what ? You're liable . You may say , well , I wasn't negligent , they weren't paying attention . That's maybe true . You're still liable .

So liability negligence plays a part generally for professional liability , but it's all kind of ways where a savvy lawyer can find that you're a liable even though you think there's no negligence . I think people think there's an excess between liability . People think negligence means I knew and I didn't do something the right way because I'd intended to .

No , it means mistake . I may have made a mistake and that's sufficient for finding that you're negligent . It doesn't mean gross negligence where your behavior was so over the top that we're finding you're liable . It's just the idea that something wasn't done the way it should have been .

And in the field of personal training , you guys know any wrong thing you do can result in injury and the level of your wrongdoing isn't proportionate to the level of injury a person may sustain . So you may make a very , very minor mistake or omission and it may result in injury .

And keep in mind to that point , negligence could be an actual thing you did or it could be a thing you didn't do . It could be an omission If you didn't tell a person hey , when you do pushups because of your weight and your lack of activity , you may want to start off small and start with your knees , versus doing a traditional pushup .

You may say , okay , here's a pushup and you help people as you go along . Any omission you have could be negligence and omission could be the whole thing or it could be a partial omission . And for you guys , if you're doing personal training , a lot of times your clients don't tell you the whole story . You don't know that whole medical workup .

A couple of years ago we had a patient client that had an issue with diabetes and oftentimes people with diabetes get injuries in their feet , they get injuries on their hands , they get injuries with bleeding and came to our bleeding and didn't tell anyone . They worked out and got cut and they went to our bleeding .

The trainer had no idea they had diabetes and the person that disclosed it the vain thing they had to . So when they got injured the injury got worse because no one knew how to treat it , because no one realized oh , you suffer from additional condition . That makes what we're doing here more risky . So that's different for liability and negligence .

Simply , it does apply when you're negligent , but again , if you have a savvy lawyer they can find negligence in all kinds of places and all kinds of ways , and ways you can assume .

You need to find like-minded individuals that are willing to go on that crusade with you , and that's exactly what I found at the MRF Institute . The team over at the MRF Institute creates educational content for fitness and wellness professionals who are serious about becoming a part of our healthcare continuum .

Getting on the healthcare continuum is all about leveling up our skills to be looked at as that value to resource provider . The wellness paradox is certainly an avenue for you to do that , but we need many different levers to pull if we're going to get there , and the MRF Institute is definitely one of those levers .

You can go to their website , mrfinstituteorg , to find all kinds of great , informative , free , informational content and if you choose to engage with any of their paid content , they've created a coupon code specifically for wellness paradox listeners . You can enter in WP2022 .

That's WP , and then the number 2022 to the website at checkout to receive a 15% discount on your purchase . I highly recommend you go check out MRFInstituteorg . Now back to today's episode . Yeah , which sounds kind of scary , but this is where you'll protect yourself , for the corporation and the right kind of infrastructure is important .

So , along those lines , very , very common in the health club space , in the personal training space , for there to exist liability waivers . You can go online . I mean there's any number of liability waivers that are out there . How protective are waivers against liability ?

I mean , in your example from earlier , I had my client sign that waiver that says you know , exercising with me can cause all kinds of bad things to happen , up to and including death , and they tear the rotator cuff when they're doing push-ups . Does that waiver limit my liability ?

You got to be specific enough to the trainer and or the company and also the person doing the work . General waiver doesn't always apply and it depends on where you're in the country .

Different states have different rules , so everyone out there certainly I'm an attorney , but seek your own counsel when you have these conversations , because states have different rules on liability , different rules on how waivers apply , whether they apply . But the reality is a waiver should be very particular and clear and it shouldn't be vague .

Now we say vague , what do you mean by that ? Vague means a person should know with specificity and clarity what they're actually waiving , and quite often waivers don't . They're general . This is a general statement . Oh , for injury ? Well , what does that mean ? Emotional injury is ? Or physical injury ? It don't say . Even one is too vague , right ?

So quite often waivers aren't easily beatable by counsel because they can find where is vague . Now , vague is a legal term that lawyers use . Most people don't think things are vague . It seems very clear and straightforward to people . But you can always find a way where the language in a waiver isn't sufficient to cover a party .

And , yeah , I'll say waiver is a helpful . I always have a waiver . It's the first step in your shield for businesses and especially when you're in service , you will have multiple layers of protection to keep you safe from a potential lawsuit or claim .

One of the ways you do is formation of an entity that's LLC , the corporation or some other legal entity , to keep you safe and protected . Another way is a waiver and you have a waiver to waive , so the person is on notice . Hey , you make an injury if you come here .

If we're doing physical training and you exert it , it may result in you having a heart attack . It may result in you having to have a pass now . It may result in you pulling the muscle . But the universe of what can happen to you is so broad it's kind of easily defined that the waiver is too vague .

And if you're working for yourself or a third party so if you're a trainer and you're working for a company who names on the waivers and yours or is it theirs , then the waiver doesn't include you . If it's yours , not the company , the waiver doesn't include the company . So that's another step along the way where you can defeat a waiver .

So if I'm a counsel , a plaintiff counsel , and my client get injured by a personal trainer and they do something wrong and there's a waiver for the company to work for , I may sue them directly . Like you operate it beyond the scope of your duties , but the company , you're a train , you're licensed , I'm selling you directly .

You say , well , it's a waiver , yeah , it's a waiver between the client and the company , not with you . All those things come into play and I'm sure you guys see people sue all the time and they have . Well , I had a waiver , I had a release and they still sue and they still get money from you . So the waiver is another step .

The third step along the way is insurance . You want to have insurance in place . Insurance can be expensive , it can be time consuming , it can be a pain in the butt . You want to have insurance because , just like forming an entity , an LOCO corporation , the insurance helps to keep you protected from any person who would make a claim against you .

So in case they're able to beat your waiver and say , hey , the waiver is vague and it can go into detail enough , insurance will give another measure of protection against you and it will pay your lawyer fees . So if someone's suing you , they're suing you for $20,000 . You may have $20,000 , but you may not have money to pay for a lawyer to defend it .

So the insurance is going to cover your lawyer fees and or the settlement . So if they go to the insurance carrier and say , hey , we got proof , your guy was liable , they may pay out . Okay , we'll settle this If pay is done and you're protected to whatever amount that your policy is for .

Or they may say , no way , we think your person should have known better . There was a liability waiver . They should have known . We're not paying for it , we got a lawyer , we'll take care of this . That's where you want to be . You want to have counsel in place to protect you . And again , the same way . There's different kind of liability .

It's different kind of insurance . You can have general liability insurance or you can have professional liability insurance . I would recommend , if you're going training whether you own a gym , whether you own personal training individually , whether you're doing a virtual training or in person .

You want to have both insurance General liability means things that may happen on your watch or professional liability things that may happen that people claim those you're fault for and they give different protections but they are in . The reality is they're cheaper than people think . They are right . It's cheaper to pay upfront .

I know a lot of time people start their own personal training businesses . They're trying to start their bootstrapping and money's tight . I get it . It's not worth your while to have both of those insurances in place because one claim from one person can ruin you . If you don't have insurance and you don't have an LLC , they can have you home .

They can have all the assets that you have . It's better to be safe than sorry .

So I was a trainer there and I know that all the members signed a waiver when they came in to exercise , but I'm quite certain that waiver didn't say anything about Mike Stack as a trainer .

So are you suggesting in that situation that for me to cover myself from a liability perspective , it would make sense for me to also have a waiver that they signed that specifically named me as a party that they were waiving liability against ?

The reality is most companies don't do that . They give you a general waiver and you guys are hung up the drive Now . They typically will cover you , typically because it's a corporation . Corporations will cover their people . They'll say okay , you saw Mike , we'll take liability for it . So you're not the growth negligent , right ?

So negligent is hey , I made a mistake . Growth negligence means your behavior was so far beyond the pale that you should have known it would be injury . In those cases , quite often insurancemen are covering it , which means your boss might cover it . You may be liable in that situation individually for harm to someone .

Versus going to valleys and hey , someone fell during training . Go ahead and take care of that . You may be hooked for it .

Normally it is a couple hundred dollars a year , which is not nothing but certainly is far less than what a judgment could be if something goes wrong .

You want multiple layers of protection . Get insurance . Your insurance covers you . It covers mistakes you may make . We all make mistakes Some work from the others but we all make mistakes and mistakes can cost you a lot more money . A policy for a hundred dollars a year , 200 a year , 300 a year is well worth the expense to avoid .

Think about this way Everyone that's here that likely has car insurance . You pay much , much more for that In the event that you get to a car crash . You may not be in a car crash for years and guess what ? You still pay every single month for car insurance just in case something happened to cover it .

Well , your profession is more important than driving around in the car . This is how you make your , you live and take care of your family . Have insurance .

So how should trainers be thinking about the virtual environment differently than the in-real life environment ?

I think we'll see some pretty soon because the reality is when you're in-person and you're doing training , you can see a person's form , you can see that technique , you can touch them , you can come and manipulate them the way they need to be manipulated to make sure they're safe . You know the equipment they have because you gave it to them .

When you see it in front of you , you know on a screen and everyone using dumbbells and using kettlebells . You don't know what they have right . They may say it's five pounds . They could be wrong , you can be 15 pounds . They may say it's a peloton . It may be a peloton that wasn't quite made the right way . You have no idea what they're using .

So when you're talking , you're talking for safety based on equipment that you know .

The person that you have in front of you may have different equipment and the question is if you know , or should know , that a person that you can't see in person , you can't touch and you can't approximate whether or not they are able to do the same workout , that you're saying the same way ? It's not likely they will . It's not likely .

The reason you talk to people is because when you say a thing out loud , the person doesn't hear the way you say it and you have to tell them it's children If you're virtually . They still aren't hearing the same way out loud . When I say when someone says to me , hassan , get down and get in a pushup position , that means one thing to me .

It may mean something different to a person who hasn't been in a gym in 15 years , and it likely does . If you ask them , hey , are you okay ? And they say yes , in person , you can tell they're clammy . You can tell they're breathing extra it's definitely hard . You can tell they're struggling to get off their hands and knees . On camera you can't see that .

So as a result , you're pushing a person , maybe having a heart attack , and you have no way of knowing . So we'll see very soon whether there's a difference in the actual liability for virtual versus in person . But I would still say you still want a waiver in place .

You still want them to sign a virtual waiver and have it in your file before you start doing work with that person or those people . So you have a record of hey . We went over at least a preliminary discussion about . Hey , here's some liability issues , here's what we're doing and you waive all claims against me for this , this , this and this .

A good example of that is you guys I'm sure out there have seen a bunch of gems that do for young people . They do like bounce around Trampoline parks . They sign waivers for them . All the time you sign a waiver and people get hurt all the time they sue .

All the time they sue for getting hurt on trampoline even though they signed the waiver saying I make you hurt on trampoline . And guess what ? They won in the lawsuits because the waiver is good . But sometimes people don't perceive the total liability issue or the total risk .

And when you're virtual , I would suggest and I don't know whether the court has found this I would suggest a risk for a virtual training is much more than in person because of what you can't see and what you don't know , what's going on around the person .

So one more question before we start to bring this to a close , and this is always one of the most interesting questions to ask lawyers around things in the industry , and I've heard different opinions on this from different lawyers . This is why lawyers exist , because there are different opinions .

There's this thought that the more information you take in on a client or a patient , potentially the more liable you are . So , as example , if I do an extensive medical history on somebody and I get all kinds of information , if I know all of that information it's documented , I have it .

If something bad happens , then I really should have known , whereas if it wasn't documented , maybe I shouldn't have known it . And I could use my former employer Bally's as an example , because they no longer exist as a company . They were pretty adamant that they didn't want written medical histories on people . So what's your perspective on that ?

Because there's gotta be a fine line there somehow .

If you know the person has high blood pressure , diabetes , high cholesterol , history of heart attacks in the family , history of strokes , I don't know that I wanna be the trainer trying to find a workout regime for that person to get them healthy . I would rather know , because anything you do now you will know that the person may and you have a better .

You're the physical fitness person , you're a better position to know if the person gets sick , you're liable for it . I can see a judge very clearly , even if they're waving any liability , and say , hey , I'm not gonna sue you , I'm not gonna sue Michael , I'm fine . Michael knew that I had diabetes or I had high blood pressure .

He had me doing a workout where I passed out and hit my head and cracked my skull . That's gonna be a hard thing . So I see why ballads wouldn't have wanted to have all that information .

If I was ballads , I probably wouldn't want it either , because once I'm one , I can easily say oh , we didn't know , they didn't disclose to us , they had cardiovascular disease . They didn't notify us they had a heart stint . I may not wanna know that information . I would rather not know and have my people work in a way that's general than specific .

Because once you know a person's personal history , you go from training the person as a general client to a very specific client with very specific needs . And it's not always clear that trainers have the training they need to handle those kind of people in that kind of way .

So for me I would say you get some information but you don't want the person whole psychosocial and or medical history , because at that point you are noticed . And then what are you gonna do now ? And the answer for most trainers is gonna be I don't know , I have no idea .

I know a lot of our fitness professionals will listen to this say , hey , the more information I can get , the more effective I could be at working with somebody .

I think what you're saying is just realize , if you get that information , it's professionally incumbent upon you to act on that information or you could definitely be on the hook from a liability perspective .

We train , whether it's in medical or whether it's physical fitness , in general terms , right , General people , the average person , not the person who's about to pass out having a conversation . So once you have more information , it makes you less equipped to handle them .

Even though you think you are , you're still less equipped to handle them than you would otherwise be , because their medical issue is much more than you would train for . You train to generalize . You're not trained in this person who's about to pass out because they have cardiovascular disease , Because they mean different things to different people .

So once you have a doctor or they have primary care , if they have a physician with you in training , that much more information may not be helpful to you .

In your opinion , if somebody was sent to a doctor , the doctor gave them medical clearance to exercise and information signed off on that and you have that as a professional Are the . Is the doctor then liable in that situation ?

All they're saying is yeah , at this moment in time , when they've come to see me as a physician , they checked out . That's a different time than when they see you . Different time of the day , different part that , they may be in stress , they may be nervous because they're in the gym , their heart rate may be up .

All kinds of things will be different at that time than when you saw them . So they can say , hey , when they're in front of me , they checked out . That puts the trainer on notice that this is a patient or a client that may be higher risk for injury and for harm , so take more precaution .

But no , if something happened , then you were on notice that this person may have an issue . Even though the doctor gave you a note saying go ahead , that's still a notice , that's still putting you on notice . Because I don't need that . When I go to see me , go to a trainer , you don't need to go into a trainer .

The fact that a person comes to you and say , hey , I got away from my doctor . That's a real flag to you Like why you need that .

If you have any medical issue that you have to get a doctor involved , you're on notice that this person that may have more issues than you can handle and you may wanna second guess whether you can be there training and if you are , take things very , very slow , be very methodical , pay attention to everything that goes on to make sure you can help them the way

they need to be helped . They are already at a high level for risks of injury and or harm .

So getting them to a place where they're healthy may not be a physical fit place . It may mean healthy even they are now . Keep that in mind when you're handling people because , again , a walk on a treadmill may not be an issue for me .

Some people it could be life or death because their physical fitness is so poor , their physical health is so bad that that may be a risky proposition .

To make sure you pay attention and , if you're for all the trainers , if you have patients or your clients who are at risk for severe injury and illness , don't be so bold and breast and you can handle everybody . Don't be afraid and say no , what I mean this might , with more expertise than me , to help you with this Cause .

Sometimes we get in over our head , can we ? Oh , I can do this , I can . This person is morbidly obese . I can help them , I can . Maybe you can , maybe you can't . I mean you have to recognize when you are maybe over your head .

So , even though this may not have been the most exciting and comforting discussion , it's an important discussion to have because we need to talk about these things before they happen , to prevent them from happening .

So before we go , I'm gonna ask you the question that I always end the podcast on , and I only think I've had one lawyer on my podcast in 110 episodes . You're the second lawyer I've asked this question to . It has nothing to do with the topic we talked about today the wellness paradox .

As I view it , kind of the premise of the podcast is this disconnect that exists between fitness professionals and medical professionals . From your very outsider's perspective , if you can give fitness professionals one piece of advice to close off that gap and have better relationships with medical professionals , what would it be ?

Their continuum is much , much longer and broader and they see people in all levels of physical impairment . So they recognize and they understand that a person has limited physical impairment and it's not something that's always fixable , right ? Medical professionals are very aware when a person has a certain level of unhealthiness it's not going away .

They're not going to fight them to get to a place . They give them understanding of the world , but they're not as important for them that the person loses 150 pounds . They're much more . It's more important for quality of life , they're effects , they're overall over health , they're blood pressure , they're cholesterol . All the other issues .

How they live is affected differently . So their goal typically is live a good life versus getting to be being Mr Olympia or Mr Ironman . So the views are different and the goals are different . They're more about health and overall health and wellness , so to speak , more so than a fitness professional who's about getting you in type , physical form .

And keep in mind doctors in a medical profession is very stodgy . You're like law . It's very stodgy , it's very cold and detached . They see so much stuff . All the time their perspective is different than yours .

So if you think dealing with doctors and paying an ass part of my language , it probably is Because they're doctors and they think differently and they see things differently and they don't have the same considerations you do .

But I will say this I think both fitness professionals and doctors both have the same thing in mind making sure the patient and the client had the best possible outcomes . And that's true .

There's always middle ground for you guys to meet somewhere to make sure , if you share a patient or client , you can work towards their physical fitness and their mental and physical health .

It's been going to wellnessparadoxpodcom forward slash , episode 111 . Please be on the lookout for the next episode when it drops in two weeks , and don't forget to subscribe through your favorite podcast platform . Until we chat again next , please be well .