Practical and Critical Legal Concerns for Sport Medicine Physicians and Athletic Trainers
In order to help sport physicians and athletic trainers understand the legal principles that may be applicable to injury treatment, this article 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 the acceptable service standard. 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.
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 the 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 preventions, this article examines several areas of liability that 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; Sport Medicine Digest, 2002), the authors have summarized the key points in the consent, which should be disclosed to athletes:
(a) Physicians and trainers must adhere to customary or accepted sports medicine practice in diagnosing athletes’ injuries.
(b) An athlete must understand the kind of treatment to which he is consenting.
(c) A physician must disclose relevant information since his/her failure to do so may subject him/her to liability for fraudulent concealment.
(d) Physicians and trainers should propose possible alternative treatments.
(e) Keep in mind that the clients have the “right of refusal.”
(f) 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.
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 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.
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 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 that 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).
This article 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).
(a) Maintain a good physician-client relationship with athletes.
(b) Obtain informed consent and insist on a written contract.
(c) Educate the athletes, parents and coaches concerning issues of drug abuse, assumption of risks, confidentiality.
(d) Perform physical examinations carefully, and be cautious on issuing medical clearance.
(e) Formulate a risk management plan and properly document hazards and records.
(f) Participate in continuing education and recognize your qualifications.
(g) Maintain insurance coverage.
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