Practical and Critical Legal Concerns for Sport Physicians and Athletic Trainers

Abstract

In order to help sport physicians and athletic trainers understand the
legal principles that may be applicable to injury treatment, the writers
examined the areas of liability that physicians and trainers may face
in their delivery of care. Major topics which were covered by this article
included: (1) informed consent and participation risks, (2) physician-patient
relationship, (3) immunity issues, and (4) risk management. In conclusion,
seven protective strategies were recommended for sport physicians and
athletic trainers to insure acceptable service standards. They were: (a)
maintaining a good physician-client relationship with athletes; (b) obtaining
informed consent and insist on a written contract; (c) educating the athletes,
parents and coaches concerning issues of drug abuse, assumption of risks,
confidentiality; (d) performing physical examinations carefully, and be
cautious on issuing medical clearance; (e) formulating a risk management
plan and properly document hazards and records; (f) participating in continuing
education and recognize your qualifications; and (g) maintaining insurance
coverage.

Introduction

The special legal duties and liabilities team physicians have are rapidly
developing areas of law (Collum, 2001). Since 1990, there has been a significant
increase in sports medicine related litigation (Gallup, 1995). The increasing
economic benefits of playing sports, such as college scholarships or multi-million
dollar professional contracts, have inspired injured athletes to seek
compensation for injuries resulting from negligent medical care (Herbert,
1991). As a result, today, many sport physicians and athletic trainers
recognize they need a general understanding of certain legal principles
in order to further protect themselves and their institutions from litigation
(Gieck, Lowe, & Kenna, 1984). Sport physicians and athletic trainers
must become familiar with the acts and policies that regulate the profession.
Physicians and trainers must realize that acquiring the basic knowledge
of legal principles can help improve their professional practice. In order
to help sport physicians and athletic trainers understand the legal principles
that may be applicable to injury treatments and prevention, the writers
examines several areas of liability physicians and trainers may face.
These areas include: (a) informed consent and participation risks, (b)
the physician-patient relationship, (c) immunity issues, and (d) risk
management.

Informed Consent and Participation Risks

A widely recognized legal principle is that the team physician must have
an athlete’s informed consent before providing any medical treatment
(Gallup, 1995; Ray, 2000; Mitten, 2002). Informed consent is a legal doctrine
that requires a sport physician to obtain consent for rendering treatment,
performing an operation, or using many diagnostic procedures after their
clients being furnished with all the known relevant facts (Gallup, 1995;
Briggs, 2001). This requirement is based on the principle of individual
autonomy, meaning a competent adult has the legal right to decide what
to do with his body (Heinemann, 1997).

Consent forms are especially important in the high school setting because
most of these injured student- athletes are minors. No lawsuit has been
successfully tried based on a lack of parental consent, where the treatment
of the minor was non-negligent (Gallup, 1995; Ray, 2000). Recently, many
courts have begun to follow the mature minor rule allowing the young person
(an age of 14-16) to validly consent to the physicians’ treatment
(Holder, 1978). Consent may be implied under the circumstances, such as
when an athlete has been rendered unconscious during play and needs emergency
medical treatment (Mitten, 2002; Hecht, 2002). In these cases, the law
generally assumes that if the injured athlete had been aware of his/her
condition and was mentally competent, then he/she would consent to the
treatment. Based on several experts’ comments (Rosoff, 1991; Gallup,
1995; Briggs, 2001; Mitten, 2002; Sports Medicine Digest, 2002), the authors
have summarized the key points in the consent, which should be disclosed
to athletes:

  1. Physicians and trainers must adhere to customary or accepted sports
    medicine practice in diagnosing athletes’ injuries.
  2. An athlete must understand the kind of treatment to which he is consenting.
  3. A physician must disclose relevant information since his/her failure
    to do so may subject him/her to liability for fraudulent concealment.
  4. Physicians and trainers should propose possible alternative treatments.
  5. Keep in mind that the clients have the “right of refusal.”
  6. Physicians and trainers should explain the cost of the proposed treatment.

It is difficult to judge how far a sport physician should go in determining
whether an athlete actually understand what he/she has consented to or
not. In the 1987 California case of Krueger v. San Francisco 49ers, the
49ers were found guilty of fraudulent concealment, because the team physicians
failed to inform Krueger about the full extent of his injuries, the potential
consequences of the anesthetic steroid injections, and the long-term implications
of playing professional football with a badly damaged knee. If a physician
wishes to avoid the liability of negligence or fraud, he/she must show
that approving athletic participation is not medically unreasonable and
the athlete actually understands the risks.

“Assumption of risk” is a legal defense that attempts to
claim that an injured plaintiff understood the risk of an activity and
freely chose to undertake the activity regardless of the hazards associated
with it (Ray, 2000). It is one of the most common defenses that educational
institutions, athletic trainers and sport physicians may employ to avoid
legal liability. Two conditions must be met in order to establish the
defense of “assumption of risk” (Scott, 1990). (a) The athlete
must fully appreciate and understand the type and magnitude of the risk
involved in participation. (b) The athlete must also “knowingly,
voluntarily, and unequivocally” choose to participate. In interscholastic
sport settings, school districts often use a consent form to prove an
implied assumption of risk. In some cases, courts also have found that
consent forms prove the minor and parents did understand the risks inherent
in the sport and agree to assume them (Vendrell v. School District No
26c Malheur County).

Today, athletes and their parents frequently challenge the return-to-play
decision of the sport physicians and demand their right to participate
(Ray, 2000). In this case, one approach sport physicians or athletic trainers
may take is to request athletes (and their parents in the case of minors)
to sign exculpatory waivers. An “exculpatory waiver” or “risk
release” is a contract signed by a participant, which relieves the
school, university, or team physician from any liability to the individual
who executes the release (Gallup, 1995). It acts as an “express
assumption of risk” indicating that the participant fully understands
and voluntarily chooses to encounter the risk. The participant further
agrees in advance not to hold the defendant liable for the consequences
of conduct that would ordinarily amount to negligence (Keeton, Dobbs,
Keeton, & Owen, 1987). Some courts uphold releases of liability from
future negligence, but not culpable conduct such as intentional, reckless,
or grossly negligent torts (Keeton et al, 1987; Cotten, 2001; Mitten,
2002). However, courts have also invalidated contracts releasing physicians
from liability for negligent medical care of their patient, because such
contracts violates public policy (Tunkl v. Regents of University of California,
1963; Ray, 2000). In general, a waiver signed by the minor alone will
not be enforced (Cotten, 2001). Even if an exculpatory waiver is established,
the court may evaluate its validity individually.

In general, if an injured athlete is found to be contributory negligent,
he/she may not be able to successfully sue a team physician or an athletic
trainer (Hebert, 2002; Gallup, 1995). In the past, plaintiffs might lose
the case due to their contributory negligence, because the court’s
decision was determined on an “all or nothing” basis (Hoffman
v. Jones, 1973). However, this type of ruling is not a dominant trend
anymore. In Perez v. McConkey, a plaintiff’s contributory negligence
no longer was a “complete bar to recovery”; rather, it was
to be considered in “apportioning damages only” (Wanat, 2001).
Today, the courts often use the doctrine of comparative negligence to
determine if the liability should be divided between the plaintiff and
the defendant(s) (Ray, 2000; Gallup, 1995). In most states, plaintiffs
can collect damages only if their comparative culpability is less than
50% (Ray, 2000). Physicians and trainers may compensate their patients
in proportion to their fault.

Physician-patient Relationship

When a university or a professional sports team hires the team physicians,
a duty is created not only between the physicians and the athletes, but
also to the hiring entity. Although the well-being of athletes should
be the most important concern of physicians and trainers who render medical
service, it is not always easy for physicians and trainers to make their
decisions based on this principle due to the intense pressure from the
coaches, management, the press, and even the motivated athletes themselves.
In general, if physicians who are hired by professional teams act in a
negligent manner and cause their patients (athletes) to lose a contract,
scholarship, or future earnings, they may ultimately be found liable for
those damages (Gallup, 1995). Under the doctrine of “vicarious liability”,
a university or professional team may also be liable for the actions of
the team physician who it hired (Berry & Wong, 1986). However, if
the physician is an independent contractor, the entity may not be held
liable for the physician’s negligence (Cramer v. Hoffman, 1968).
The key factor to determine whether the physician is an independent contractor
or not is relying on the amount of control the hiring entity exercises
over the independent judgment of physician (Berry & Wong, 1986).

The issue of confidentiality is often a complicated problem in professional
and collegiate sports. Releasing an athlete’s medical condition
to third parties (i.e., media) violates a physician’s ethical obligation
to maintain confidentiality (Mitten, 2002). However, it may seem appropriate
for physicians or trainers to discuss athletes’ condition with the
management of collegiate or professional teams, because they have the
access to athletes’ medical records anyway (Berry & Wong, 1986).
Collegiate and professional physicians and trainers must remember that
they owe athletes confidentiality, and should be careful about releasing
information to the press. In Chuy v. Philadelphia Eagles Football Club
(1979), the defendant, Chuy, sought the compensation from the Philadelphia
Eagles because the team physician released his medical condition to the
press without his consent. Based on the impact of this case, it is ideal
for the physician to obtain the athlete’s permission (a publicity
waiver form) before disclosing any medical information to team officials
or press. An essential act that physicians must apply is informing the
athletes that they are acting on behalf of the team (Mitten, 2002). Readers
may refer to the Health Insurance Portability and Accountability Act from
official website of the Department of United States Health and Human Services
(2003) for more information concerning standards for protecting the privacy
of personal health information.

Immunity Issues

In some instances, physicians may be immune from legal liability for
malpractice claims brought by athletes (Mitten, 1995). Several states
have enacted legal statutes immunizing volunteer sport physicians from
negligence liability for rendering emergency medical care to athletes
(Mitten, 2002). In addition, some states have expended their Good Samaritan
laws to specify immunity for those who provide medical services at athletic
events (Gallup, 1995; Todaro, 1986). However, statutory immunity only
covered physicians or trainers who provide emergency care to an athlete
with an apparent life-threatening condition in good faith, not with wanton
emergency treatment or gross negligence (Todaro, 1986).

As shown in the case of Sorey v. Kellett (1988), it was found that sport
physicians employed by public universities might be protected by state
law immunity. Furthermore, state workers’ compensation laws may
also bar claims of professional athletes against team physicians for negligent
medical care (Mitten, 2002; Gallup, 1995). Other than the Good Samaritan
laws, the workers’ compensation laws are other legal statues that
preclude professional athletes suing team physicians or trainers for negligence.
In Hendy v. Losse (1991), the court interpreted that workers’ compensation
law bar tort suits between co-employees for injuries caused within the
scope of employment. One must keeps in mind that workers’ compensation
laws are not uniform, and may vary from state to state (Gallup, 1995).

Risk management

Risk management is the key for preventing lawsuits in sports medicine.
As sport physicians and athletic trainers have involved more managerial
responsibilities along with their clinical duties, the broader construct
of risk management became more important. Risk management is a process
intended to prevent financial, physical, property, and time loss for an
organization (Culp, Goemaere, & Miller, 1985; Ray, 2000; Streator
& Buckley, 2001). According to Gallup (1995), a well-designed risk
management program should cover four essential elements; compassion, communication,
competence and charting. Sports physicians and athletic trainers must
demonstrate a deep concern for athletes and build a good rapport with
athletes. Maintaining clinical competence and keeping accurate medical
records are other important means to avoid liability for malpractice.
In fact, studies show that 70% of the medical litigations are due to poor
communication and attitude problems presented by physicians or trainers
(Gallup, 1995).

To apply appropriate techniques and management principles for reducing
the likelihood of risk, the Department of Sport and Recreation of Australia
(2003) provided some guidelines for handling the potential risks. Those
guidelines included: (a) establishing the context of a risk management
program (objectives, resources, and assessment criteria, etc.), (b) risk
identification, (c) risk assessment, (d) treatment and control, and (e)
monitoring and review. While applying the above principles in the sport
medicine field, Rankin and Ingersoll’s (1995) recommendation can
further help to control risk. In terms of risk identification and assessment,
physicians and trainers can administer pre-participation physical exams,
monitor fitness levels, assess activity areas, monitor environmental conditions,
maintain equipment, use proper instructional techniques, and provide adequate
work-rest intervals. Advice for treatment and control include: (a) have
a physician supervise all medical aspects of the program; (b) evaluate
and treat injuries correctly and promptly; and (c) supervise student athletic
trainers or intern physicians.

Effective documentation is vital for sport physicians and athletic trainers
because 35% to 40% of all medical malpractice suits are rendered indefensible
by problems with the medical record (Michigan Medicine, 1983). Sport physicians
should record their activities for the following reasons (Ray, 2000; Briggs,
2001; Streator & Buckley, 2001): (a) personal use; especially for
personal protection in the event of litigation; (b) legal, ethical and
professional requirements; (c) statistical records; (d) educational, research
and insurance purposes; (e) information for further planning, treatment,
rehabilitation and training; (f) aids for assisting other practitioners
taking over/involved in treatment (i.e. a multidisciplinary approach);
and (g) information for techniques and standards involved in treatment/rehabilitation.

In general, sport physicians and athletic trainers should file two types
of records properly, medical records and program administration records
(Ray, 2000). Medical records are cumulative documentation of a patient’s
medical history and health care interventions. The administration records
may include physical examination forms, injury evaluation and treatment
forms, reports of special procedures, emergency information, permission
for medical treatment forms, release of medical information, insurance
information and communication from other professionals (Ray, 2000; Streator
& Buckley, 2001).

Conclusion

The authors examined the variety, complexity, and importance of legal
issues, which sport physicians and athletic trainers may encounter. Many
of the legal outcomes are strongly influenced by advances in medicine,
medical evidence, and reviews of legal precedents (Gallup, 1995; Opie,
2002). The authors attempted to synthesize opinions of experts and information
derived from some lawsuits to propose practical guidelines for the physicians
and trainers. As Ray (2000) mentioned, the best legal defense against
malpractice lawsuits is still to provide high-quality medical services
consistent with the standard of care. The concepts and suggestions, which
were illustrated in this article, might not be interpreted as absolute
legal principles; rather, they should be treated as aids to help physicians
and trainers prevent negligence lawsuits. The following protective strategies
were suggested to insure the acceptable service standard (Graham, 1985;
Ray, 2000; Gallup; Opie, 2002; Mitten, 2002).

  1. Maintain a good physician-client relationship with athletes.
  2. Obtain informed consent and insist on a written contract.
  3. Educate the athletes, parents and coaches concerning issues of drug
    abuse, assumption of risks, confidentiality.
  4. Perform physical examinations carefully, and be cautious on issuing
    medical clearances.
  5. Formulate a risk management plan and properly document hazards and
    records.
  6. Participate in continuing education and recognize your qualifications.
  7. Maintain insurance coverage.

References

  1. Berry, R., & Wong, G. (1986). Application of legal principles
    to persons involved in Sports. In R. Berry & G. Wong, Law and
    business of the sports industries: Common issues in amateur and professional
    sports
    (2nd ed.) (p. 303). Westport, CT: Greenwood Press.
  2. Briggs, J. (2001). Legal, professional ethical, moral and practice
    management issues. In J. Briggs (Eds.), Sports therapy: theoretical
    and practical thoughts and Considerations
    (pp. 299-320). Chichester,
    England: Corpus Publishing Limited.
  3. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 3rd
    Cir
  4. Collum, J. (2001). Legal developments regarding injuries related to
    participation in and/or affiliation with athletic events. Sports,
    Parks and Recreation Law reporter, 14
    (4), 56-58.
  5. Cotten, D. J. (2001). An update on the validity of waivers when the
    injured party is a Minor. Sports, Parks and Recreation Law Reporter,
    15
    (3), 44-47.
  6. Cramer v. Hoffman, 390 F. 2d 19 (2nd Cir. 1968).
  7. Culp, B., Goemaere, N.D., & Miller E. (1985). Risk management:
    An integral part of Quality assurance. In C. G. Meisenheimer, Quality
    assurance: A complete guide to effective programs
    (pp. 169-192).
    Rockville, Maryland: Aspen.
  8. Department of Sport and Recreation, Government of Western Australia
    (2003). Risk Management kit. Retrieved August 8, 2003, from http://www.surfcam.dsr.wa.gov.
    au/organizations/risk.asp
  9. Department of United States Health and Human Services (2003). Medical
    privacy – National Standards to protect the privacy of personal health
    information. Retrieved February 22, 2004, from http://www.os.dhhs.gov/ocr/hipaa/finalreg.html
  10. Gallup, E. M. (1995) Law and the team physician. Champaign,
    IL: Human Kinetics.
  11. Gieck, J., Lowe, J. & & Kenna, K. (1984). Trainer malpractice:
    A sleeping giant. Athletic Training, 19(1), 41-46.
  12. Graham, L. S. (1985). Ten ways to dodge the malpractice bullet. Athletic
    Training, 29
    (2), 117-119.
  13. Herbert, D. L. (2002). Professional hockey player sues team and team
    doctor. Sport Medicine Alert, 8(6), 42-43.
  14. Herbert, D. L. (1991). The death of Hank Gathers: An examination of
    the legal issues. Sports Medicine Standards and Malpractice Reporter,
    2
    (3), 41-46.
  15. Hecht, A. N. (2002). Legal and ethical aspects of sports-related concussions:
    the Merril Hoge story. Seton Hall Journal of Sport Law, 12(1),
    17-64.
  16. Heinemann, R. A. (1997). Pushing the limits of informed consent: Johnson
    v. Kokemoor and physician-specific disclosure. Wisconsin Law Review,
    5
    , 1079-1081.
  17. Hendy v. Losse, 54 Cal.3d 723, 734.
  18. Hoffman v. Jones 280 So. 2d 431, 437 (Fla. 1973).
  19. Holder, A. R. (1978). Minors’ rights to consent to medical care. Journal
    of American Medical Association, 257
    (24), 3402.
  20. Keeton, W., Dobbs,, D., Keeton, R. & Owen, D. (1987). Prosser
    and Keeton on the law of torts
    (5th ed.). St. Paul: West.
  21. Krueger v. San Francisco 49ers et al., 234 California Reporter at
    584.
  22. Michigan Medicine. (1983). Good records can be strongest malpractice
    defense. Michigan Medicine, 6-8.
  23. Mitten, M. J. (2002). Emerging legal issues in sports medicine: A
    synthesis, summary, and analysis. St. John’s Law Review, 76(5),
    7-86.
  24. Mitten, M. J. (1995). Medical malpractice liability of sports medicine
    care providers for injury to, or death of athlete. Alabama Law Review,
    33
    (5), 619.
  25. Opie, H. (2002). Australian medico-legal issues in sport: The view
    from the grandstand. Marquette Sports Law Review, 13(1), 113-148.
  26. Ray, R. (2000). Management strategies in athletic training
    (2nd ed.). Champaign, Illinois: Human Kinetics.
  27. Rankin J. M., & Ingersoll, C. (1995). Athletic training management:
    Concepts and applications
    . St. Louis: Mosby.
  28. Rosoff, A. A. (1991). Treatise of health care law section 17.01(1).
    In M.G. MacDonald, R.M. Kaufman, & A.M. Capron (Eds.), Consent
    to medical treatment
    . New York: Mathew Bender.
  29. Scott, R. W. (1990). Health care malpractice. Thorofare, NJ:
    Slack.
  30. Sorey v. Kellett, 849 F.2d 960, 962 (5th Cir. 1988).
  31. Sports Medicine Digest. (2002). Withholding relevant information may
    be fraudulent. Sports Medicine Digest, 24(1), 3.
  32. Streator, S., & Buckley, W. E. (2001). Risk management in athletic
    training. Athletic Therapy Today, 6(2), 55-59.
  33. Todaro, G. T. (1986). The volunteer team physician: When are you exempt
    from civil liability? The Physician & Sportsmedicine, 16(7),
    147; 150.
  34. Tunkl v. Regents of University of California, 60 Cal.2d 92, 383 P.2d
    441
  35. Venderll v. School District No 26c Malheur Country, 233 Oregon. 1,
    376 p. 2d at 409.
  36. Wanat, D. E. (2001). Torts and sporting events: Spectator and participant
    injuries-using defendant’s duty to limit liability as an alternative
    to the defense of primary implied assumption of the risk. University
    of Memphis Law Review, 31
    (2), 237-279.