Practical work experience has become a common component of many academic programs. However, there are risks involved when students engage in required academic internships, particularly if these experiences are conducted off-campus. In the academic setting, particularly on the campus property, the university has an established relationship with the student that carries implied contractual duties. The university's duty to the students, which is to provide them with educational opportunities and a safe environment, may be upheld even when the educational activity is occurring off-campus. Recent court rulings indicate that universities may be held liable for students' safety while these students are engaged in the fulfillment of education requirements off-campus. Recognizing that universities cannot control the behavior and choices of students, universities still have a duty to consistently enforce precautionary safety measures and forewarn students of any known risks. The delineation and fulfillment of the university's duty to provide a safe environment and educational opportunities can be addressed through contractual agreements, policies and procedures, and communication among the parties. This discussion should assist the internship coordinator in establishing policies and procedures that meet the required duties and minimize exposure to liability surrounding internships held off-campus. J Allied Health 2006; 35:169-173.
PRACTICAL WORK EXPERIENCE has become a common component of many academic programs. Internships, clinical affiliations, and cooperative experiences, hereinafter collectively termed internships, have gained increased popularity in fields that range from law and business to sports management and recreation and to medical and allied health programs. Some surveys indicate '75% of all students completed an internship in the 1990s versus only 2% of students in the 1980s.'1 However, there are risks involved when students engage in required academic internships, particularly if these experiences are conducted off-campus. Determining the allocation of liability based on duties of the parties involved is a necessary prerequisite for establishing a sound internship program.
In most allied health internships, students receive direct supervision either from a faculty member or from a facility employee in the absence of an on-site faculty member. In the latter situation, a faculty member serves as a coordinator over all the students participating in the internship. This faculty appointment, called the academic clinical coordinator of education, director of clinical education, fieldwork coordinator, or internship coordinator (IC), will hereinafter be referred to as the IC. The IC functions as an agent of the university and serves as the liaison between the program and the internship site. It is critical that the IC understands the duties and subsequent liabilities of the university to the student when he or she is engaged in an offcampus internship.
Recent court rulings indicate that universities may be liable for students' safety while these students are engaged in the fulfillment of education requirements off-campus. This duty arises partially from the determination that a special relationship between the student and the university exists. This report examines recent court rulings regarding student liability claims in terms of how these rulings affect universities. This discussion should assist the IC in establishing policies and procedures that meet the required duties and minimize exposure to liability surrounding internships held off-campus.
General Duty
In the academic setting, particularly on the campus property, the university has an established relationship with the student that carries implied contractual duties. These duties are often identified in the college catalogue in the mission statements, rules, regulations, and policies and procedures.2,3 The implied contractual arrangement begins when a student registers and pays tuition to attend the university.2,3 This action triggers the university's duty to the students, which is to provide them with educational opportunities and a safe environment. Does this duty extend to activities held off-campus at sites that are not under the direct control of the university? If so, then does the university have a duty to students participating in off-campus internships?
A brief history of court rulings defining the university/student relationship provides a background for the arguments used in liability claims brought against universities. Before 1960, few liability cases were brought against academic institutions. The reliance of the courts on the in loco parentis doctrine protected the university from student liability claims in the area of personal safety or rights.4,5 At that time, a university exercised a significant amount of control over the actions of the student body. However, the responsibilities and potential liability of the university changed dramatically beginning in the 1960s as students began to rebel against stringent rules and regulations.4,5
During the 1960s, several student-led initiatives forced universities to recognize college students as adults with rights such as freedom of speech, freedom from illegal search and seizure, and the right to due process.4,5 This new freedom greatly diminished the university's ability to control the actions and behaviors of the students on campus. Universities adopted the position that they were unable to assure students' safety. As a result, universities avoided liability by claiming noninvolvement and declaring immunity.6 Through the 1970s, university campuses became more and more dangerous as universities represented themselves as merely distant bystanders to student actions.5,7
Recognition of Special Relationships
The mid-1980s through the 1990s heralded a series of rulings that eroded the ability of universities to claim immunity for any incidents related to student behaviors. The decision by the Third Circuit in Furek v University of Delaware8 is viewed as a pivotal turning point. The court ruled that the university did have a duty to protect students from third-party actions if certain conditions existed. In this case, Jeffery Furek suffered second- and third-degree burns as a result of a hazing incident. The university did have knowledge that hazing was occurring despite its strong policies against it. In its decision, the court recognized that
The university-student relationship is certainly unique. While its primary function is to foster intellectual development through an academic curriculum, the institution is involved in all aspects of student life. Through its providing of food, housing, security, and a range of extracurricular activities the modern university provides a setting in which every aspect of student life is, to some degree, university guided.8
The courts' recognition of the university's influence on multiple aspects of student life beyond the classroom led to acknowledgment that special relationships existed between the universities and their students. These included a landlord/tenant relationship, a custodial relationship, and a business/customer relationship.6 A special relationship is defined as a 'non-fiduciary relationship having an element of trust arising especially when one person trusts another to exercise a reasonable degree of care and the other knows or ought to know about the reliance.'5 Recognition of a special relationship adds an additional duty of nonfeasance. Therefore, not only does the university have the duty of malfeasance, accepting the responsibility not to cause harm, but also the duty of nonfeasance, making reasonable attempts to prevent potential harm.4,7
Overall, the university does not have an obligation to protect adult students from their own risky behaviors.9 However, the university may take on an assumed duty under various circumstances. Lake6 highlights four cases (Coghlan v Beta Theta Pi Fraternity,9 Knoll v Board of Regents of the University o/Nebraska,10 Lloyd v Alpha Phi Alpha Fraternity,11 and finally Nova Southeastern University v Gross12) that illustrate the courts' trend in determining the existence of a special relationship.
In the case of Coghian v Beta Theta Pi Fraternity,9 a student was seriously injured in a fall after becoming intoxicated at an on-campus sorority party that was attended by two faculty members. The court determined that the university had assumed the duty of protecting Ms. Coghlan from potential harm. Due to the presence of the faculty members, the university knew or should have known that alcohol was being served and that Ms. Coghlan was intoxicated. Having that knowledge, the university assumed the duty to protect Ms. Coghlan from potential harm.
The case of Knoll v Board of Regents of the University of Nebraska10 involved a University of Nebraska student who fell from the upper level of a building located off-campus after being forced to drink during a fraternity hazing incident. Because the university was already aware of other hazing incidents occurring on campus, Knoll's injuries were declared foreseeable and the university had a duty to act to protect him from harm even though the activity took place off0 -campus.6,10 Again, the court recognized that the university knew or should have known of the potential for harm. Therefore, the university assumed the duty to take reasonable care to prevent harm. The case of Lloyd v Alpha Phi Alpha Fraternity11 also involved injuries from hazing activities. However, in this case, the fraternity never disclosed to the university that pledging was taking place. Therefore, the university had no reason to believe that extra protection was necessary and did not assume a duty to supervise the activities and take reasonable care to prevent harm.6,11
The case of Nova Southeastern University v Gross12 highlights the issue of duty of due care in an off-campus internship situation. In this case,12 a student intern was attacked and raped while walking to her car after leaving an offcampus internship site. In this case, it was found that the university knew of previous attacks in the area and should have taken reasonable care to inform the student of the potential risks at this site.5,6,12 The court held that the university had a duty to provide reasonable care in protecting the student from harm.
The holdings in these four cases illustrate that the responsibility a university has to students has gradually expanded. Taken in aggregate, the four rulings discussed indicate that a university now has some duty to provide reasonable care in the protection of its students when a risk is known or should have been known. Three primary messages can be gleaned from these cases regarding reasonable care. First, universities cannot control the behavior and choices of students. They are adults and do take responsibility for their actions. second, implementing precautionary safety measures that cannot be enforced or attempting to control what is truly uncontrollable may result in increasing student risk. The university should not have policies or procedures that cannot be consistently implemented. Third, if the university knows or should have known about a safety risk, it must at a minimum disclose it to the student. Although the ultimate decision concerning liability still rests with the jury, universities can no longer rely on a 'no duty' claim of immunity.4,5
The Internship: Is It Special?
The extent of university responsibilities or duties remains unclear when the activities occur off-campus. In Nova Southeastern University v Gross,12 a student injured while participating in an internship experience at an off-campus location by an outside party claimed the university was liable for breaching their duty of nonfeasance to provide reasonable care to prevent harm. It is questionable whether or not the university had a duty of care to the student because not only the environment but also the source of harm was not under the university's control.
The Florida Supreme Court used several factors to determine that Ms. Gross maintained a special relationship with the university and the university was liable for not fulfilling their duty of nonfeasance. In Nova Southeastern University v Gross,12 a special relationship was determined using three factors. First, Ms. Gross had paid tuition and would receive credit for the internship. Second, the internship was a degree requirement. Finally, the student was assigned to the specific internship site by the program.5,6,12 These conditions turned the internship into an academic program held off-campus.7
A university's imposed stipulation that a student must complete a clinical internship at an off-campus location to fulfill degree requirements may be sufficient evidence of the existence of a special relationship. Lake6 contends that a special relationship does not have to be determined to still have a duty of reasonable care imposed on the university. The view of Foster and Moorman5 is that the payment of tuition alone does not impose a duty but that placement of a student at an internship site is the critical element toward establishing a duty. Although the actual determinants that the court will use vary, requiring internships may increase university liability.
Current Requirements
Participation in clinical internships is a well-established educational requirement for most allied health professions. The criteria of several accreditation agencies include the provision of both an academic and clinical component within the professional program.13-15 Although the designs of clinical internships may vary among disciplines in respect to their length, timing of occurrence within the program, and type of supervision required, most professional programs require student interns to spend extended time at a community-based internship site. Furthermore, the Commission for Accreditation of Physical Therapy Education (CAPTE),15 Accreditation Council for Occupational Therapy Education (ACOTE),14 and Council on Academic Accreditation in Audiology and Speech-Language Pathology (AAC)15 require that each accredited program maintain an adequate number and variety of clinical sites providing internships. Meeting this requirement may demand that the university enter into relationships with facilities located in cities or states that are far from the campus.
The IC position has many responsibilities that raise the possibility of incurring liability and duty of care issues. Each IC, acting as an agent of their university's professional program, is responsible for investigating, developing, and maintaining relationships with current clinical sites. CAPTE13 also holds the IC responsible for assuring that clinical instructors, usually clinical site employees who serve as the direct supervisors of students at the site but are not faculty, are trained in educational strategies and unbiased evaluation methods. AAC,15 CAPTE,13 and ACOTE14 require written agreements between a program and its external clinical sites. The accrediting agencies also identify the program IC as the person who is responsible for assigning students to internship sites. Most program ICs maintain a list of approved sites that they use for student placement. These accreditation requirements increase the likelihood that a court would recognize a special relationship between the university's representative (the IC) and the student. However, the actions necessary to meet the requirements established by accrediting bodies also aid the university in demonstrating fulfillment of the duties of that relationship.
Allied health programs are not alone in their need to develop policies to address these special relationships with students assigned to off-campus internship placements. ICs in the allied health professions can look to other non-health-related professions as well as to related legal rulings for guidance in how to address the university's liability toward student interns. These liabilities can be addressed through contractual agreements, policies and procedures, and communication among the parties.
Addressing the Liability Through a Contractual Agreement
Universities usually enter into contractual agreements between the university, clinical site, and student to establish a clearer understanding of the relationship of the parties involved in the provision of an internship. The internship agreement or contract serves to delineate party responsibilities and potential liabilities. The clinical site itself and the university are the designated parties for the contract and not the IC, program director, or the community-based clinical instructor.1 However, the IC, student, and clinical site must be made fully aware of their respective responsibilities before an internship begins. The IC has the responsibility of clearly informing the student of their contractual obligations. Therefore, it is critical that the IC is fully aware of the contractual language.
To minimize risk of liability claims, the IC must communicate and explain the responsibilities of the student and the implications of any violations before the internship begins. In general, the university is responsible for assuring academic preparation before the internship, providing goals and objectives for the internship, evaluating the overall performance of the student in meeting the objectives, communicating and coordinating the internship process with the clinical site, and assuring that the student has proper liability insurance and is aware of the policies and procedures of the clinical site.16,17 The clinical site is responsible for providing an organized internship experience that allows the student to practice skills and clinical decision-making. In addition, the site must provide orientation to the site, notify the university of any concerns or changes at the site, and complete the student evaluation material as required by the clinical education guidelines.13,14
Miller et al.1 advocated for ICs to establish original contracts for every internship to delineate the specific assigned student(s), internship dates, educational objectives, and details of the clinical site's policies and procedures. This recommendation may be impractical for a university to manage, especially if the university houses multiple professional programs that require clinical internships.1 Internship agreements between facilities and universities have already become more difficult to draft and to agree on due to the recent increase in liability and negligence claims.14 In addition, changes in administrative policies with the advent of the Health Insurance Portability and Accountability Act18 and the Joint Commission on Accreditation of Healthcare Organizations19,20 criteria have increased the scrutiny of internship agreements due to patient privacy issues resulting from student access to patient records.
Although the clinical site does not formally pay the student, the students may be considered employees if their contribution to the clinical site is viewed as providing substantial benefits.1 The clinical agreement should contain a clause stating that a student is not an employee of the clinical site. Citing the limitations of the student/clinical site relationship within the contract avoids possible confusion and serves to protect the clinical site from workers' compensation claims.
Addressing Liability Through Policies and Procedures
A clinical manual can provide a place to distribute any polices or procedures pertaining to the internship program. Along with the standard academic policies and procedures, Butler4 recommends that the program have a specific policy regarding removal of students from the internship if there is a safety risk.4 A policy on the method of reporting any safety concerns or other issues should also be drafted. Many programs use a clinical site evaluation form, but that only addresses this issue after an internship is completed. A procedure should be in place regarding lines of communication in the event of an emergency. Finally, the university should outline the procedure for selecting an internship site.4
It is advisable to offer students some freedom in the site selection procedure, even when a list of approved sites is made available.3,4 Butler4 recognized the site selection process as the single greatest point that identifies which party has control. For students to be considered an equal party in the clinical contractual agreement, they need to possess some ability to negotiate during the assignment process and then to accept or refuse once an assignment is made.3 If parties are viewed as grossly unequal in power, the terms of the contractual agreement may be found unenforceable. Allowing students to review available information and contracts and then have a choice in their assignment will greatly enhance the validity of the clinical contract in addition to minimizing the university's liability risk.
In order for students to make educated choices, the IC should provide students with updated information such as the location of the clinical site, hours of operation, previous student evaluations of the clinical site, and clinical instructor qualifications.4,13 Although this information is not necessarily contractually mandated, it falls under the university's general duty to provide reasonable care toward the student. Files readily accessible and updated should be provided for the student to review.13
Providing students with basic safety advice before attending their first internship is recommended and can be provided by the safety office on campus.4 General advice will not be viewed by the courts as an assumption of duty.4 However, if in that advice, the university guarantees that the student will be safe, they will be held liable for any misfortunes. Likewise, students should be provided with a general orientation to the clinical site and its surroundings, along with disclosing to the student any known risks at the site.4
Addressing Liability Through Communication
Communication with the clinical sites should occur before, during, and after the clinical internship to assist in fulfilling the university's duty to provide educational opportunities. In the legal community, Smith21 advocates for a fairly intrusive and participatory internship design for law experiences held outside the university. She calls for internship coordinators to develop a clear plan and specific structure for the students' internship experiences to achieve the planned educational goals. Smith recommends implementing a mechanism for ongoing dialogue with the student throughout the course of the internship. 'The only way to maximize learning from an [internship] is for an experienced educator to engage the student in a critical inquiry arising from the [internship].'21
Before the internship, the IC should contact the clinical site to confirm the student's arrival and to address any questions. In addition, the student should contact the site to clarify any questions or concerns. Foster and Moorman5 recommend that personal contact between the university representative, the student intern, and the student's supervisor must take place. This contact can occur via e-mail, telephone, or a site visit. Performing a site visit serves not only to verify the safety of the site hut to verify the educational value provided by the site.4 It is an important distinction.
Summary
There is no denying the value and necessity of clinical internships in the allied health professions. Students need to have the experience of directly working with patients and clients before becoming licensed for unsupervised practice. However, the potential for liability must be recognized because a special relationship may exist between the university and the student during internships.
As the university's agent, the IC plays a pivotal role in upholding the university's duty of reasonable care by assuring students' safety and providing educational opportunities. ICs should work closely with their university's legal counsel and consult for professional legal guidance before or when adverse situations arise. Being aware of the responsibilities, duties, and possible liabilities encountered during an internship can assist the IC to proactively identify and manage high-risk situations. Through the use of clinical contracts, clinical site identification, and communication along with the establishment of clinical objectives, ICs can be successful in meeting the university's duty to the students. When considering the university's duty, common sense is the key.
[Reference]
REFERENCES
1. Miller LK, Andersen PM, Ayres TD: The internship agreement: recommendations and realities. J Legal Aspects Sport 2002; 12:37-54.
2. Hendrickson RM: The Co/leges, Their Constituencies and the Courts. 2nd ed. Dayton, OH: Education Law Association; 1999.
3. Gelman S, Pollack D, Auerbach C: Liability issues in social work education. J Social Work Educ 1996; 32:351-361.
4. Butler KC: Shared responsibility: the duty to legal extems. West Virginia law Rev 2003; 106:51-120.
5. Foster SB, Moorman AM: Gross v Family Services Agency, inc.: the internship as a special relationship in creating negligence liability. J Legal Aspects Sport 2001; 11:245-267.
6. Lake PF: The special relationship(s) between a college and a student: law and policy ramifications for the post in UKO parentis college. Idaho Law Rev 2001; 37:531-555.
7. Maclachlan J: Dangerous traditions: hazing rituals on campus and university liability. J College University Law 2000; 511-548.
8. Furek v University of Delaware, 594 A.2d 506, 511 (Del. 1991).
9. Coghlan v Beta Theta Pi Fraternity, 987 P.2d 300 (Idaho, 1999).
10. Knoll v Board of Regents of the University of Nebraska, 601 N.W. 2d 757 (1999).
11. Lloyd, Jr. v Alpha Phi Alpha, et al. 96-CV-348 (1999 U.S. Dist. Lexis 906).
12. Nova Southeastern University, inc., etc. v Gross 758 So. 2d 86 (Fla. 2000).
13. Commission on Accreditation of Physical Therapy Education: Evaluative Criteria for Accreditation of Education Programs for the Preparation of Physical Therapists. Alexandria, VA: American Physical Therapy Association. Available at: http://www.apta.org/Documents/Puhlic/Accred/AppendixB-PT-Criteria.pdf. Accessed May 16, 2005.
14. Accreditation Council for Occupational Therapy Education: Standards for an Accredited Educational Program. Available at: http://www.aota.org/nonmembers/area 13/links/LINK31.asp. Accessed May 16, 2005.
15. Council on Academic Accreditation in Audiology and Speech-Language Pathology (AAC): 2004 Standards for Accreditation of Graduate Education Programs in Audiology and Speech-Language Pathology. Available at: http://www.asha.org/about/credentialing/ accreditation/standards.htm. Accessed May 16, 2005.
16. Scott R: Foundations of Physical Therapy: a 21st Century-Focused View of the Profession. New York: McGraw-Hill; 2002.
17. Idaho State University. The Clinical Agreement. 2003. (Available from Sandra Rich, Idaho State University, Pocatello, ID).
18. Health Insurance Portability and Accountability Act. 108 P.L. 173; 117 Stat. 2066 (2003).
19. Joint Commission on Accreditation of Healthcare Organizations: Requirements for Criminal Background Checks. Available at: http:// www.jcaho.org/accredited+organizations/hospitals/standards/hospi tal+faqs/manage+human+res/planning/background_checks.htm. Accessed May 16, 2005.
20. Joint Commission on Accreditation of Healthcare Organizations: About Privacy Certification for Business Associates (PCBA). Available at: http://www.privacycertification.org/. Accessed May 16, 2005.
21. Smith LF: Designing an extern clinical program: or as you sow, so shall you reap. Clin Law Rev 1999; 5:527-555.
[Author Affiliation]
Deanna C. Dye, PT, MA
Denise Bender, PT, JD, GCS
[Author Affiliation]
Ms. Dye is Assistant Clinical Professor and Academic Coordinator of Clinical Education, Department of Physical and Occupational Therapy, Kasiska College of Health Professions, Idaho State University, Pocatello, ID; and Ms. Bender is Associate Professor, Allied Health Sciences, Department of Rehabilitation Sciences, College of Allied Health, University of Oklahoma Health Sciences Center, Oklahoma City, OK.
Received June 23, 2005; revision accepted November 8, 2005.
Address correspondence and reprint requests to: Deanna Dye, PT, MA, Academic Coordinator of Clinical Education, Idaho State University, Campus Box 8045, Garrison House Room 314, Pocatello, ID 83209. Tel 208-282-4307; e-mail dyedean@isu.edu.
