This issue of eMedRef provides information to clinicians on medical and legal issues in sports medicine

Mahmoodi, Maria

Waters, Michael

University of Missouri: MOspace

Medical and Legal Issues in Sports MedPage 1 of 5    6.25.09 Medical and Legal Issues in Sports Medicine Legal reasons/terms for lawsuits against team physicians 1. Negligence - 2 types, gross negligence, normal negligence  o Gross negligence   A conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both14  o Negligence   A failure to exercise reasonable care which is likely to cause foreseeable grave injury or harm to persons, property, or both14  2. Fraudulent misrepresentation  o A statement of fact made without belief in its truth either recklessly, knowingly or without caring whether it is true or false with the intention that it should be acted on and it is in fact acted upon15  o Where a contract has been entered into by reason of fraudulent misrepresentation, the person induced may rescind the contract, claim damages or both15  o The Misrepresentation Act 1967 allows a claimant to base their claim on negligence or on the fraud15  o When a misrepresentation claim is based in negligence, the Act creates a reverse onus on the defendant to disprove negligence15  3. Concealment of medical information  o If determined to be fraudulent, then statues of limitations can be exceeded, per a Florida case law16  4. Intentional infliction of emotional distress 5. Discrimination: Unequal treatment of persons, for a reason which has nothing to do with legal rights or ability13  o Federal and state laws prohibit discrimination in employment, availability of housing, rates of pay, right to promotion, educational opportunity, civil rights, and based on race, nationality, creed, color, age, sex or sexual orientation13  o The rights to protest discrimination or enforce one's rights to equal treatment are provided in various federal and state laws, which allow for private lawsuits with the right to damages13  o There are also federal and state commissions to investigate and enforce equal rights13   Case Law and Sports Medicine specific claim types 1. Laws and treatment protocols differ from state to state  o There is not one uniform federal law  o Check laws in the state in which the physician is licensed 2. Some cases arose based on a lack of informed consent  o A team physician must inform the athlete of:   The full extent of their injuries   The potential consequences of treatment vs. no treatment  The long-term implications of treatment vs. no treatment 3. An athlete also has the responsibility to inform the physician and/or coach of the full extent of his injuries if they were not apparent3  Medical and Legal Issues in Sports MedPage 2 of 5    6.25.09 4. A paid state or government employee is protected by both governmental immunity and case law  o Case law covers a criminal suit4  o Case law protects in civil cases5  o Case law does not offer protection if a physician is not acting within scope of job6  5. Good Samaritan laws may protect physicians who are not getting paid  o There are concerns about the laws protection and stipulations9   The event must be an emergency  The emergency status can be challenged   If something is done that is non-emergent a physician is more likely to be found liable7   The physician must be present at the emergency  Wisconsin Good Samaritan Law is specifically worded against medical professionals who are being compensated for their time if it is in their normal scope of practice10   Cannot assume immunity   A Florida Case found this law too vague8  6. Volunteer Protection Act (1997) was established for broader coverage than Good Samaritan Laws9  o Provides immunity from lawsuits filed against a nonprofit's volunteer where the claim is that he carelessly injured another in the course of helping the nonprofit o The Act does not provide immunity to the organization itself   To be covered, a physician must be licensed and/or certified if appropriate (medical license)  Must not be grossly negligent or reckless misconduct 7. Questions may arise about treating the fans and not just the team  o No specific case laws regarding treatment of fans o In an emergency, a physician is likely to be covered by The Good Samaritan Law in most states o The Volunteer Act may also apply 8. The team physician must still abide by basic patient relationship and confidentiality laws  o Collegiate and professional physicians and athletic trainers must remember that they owe athletes confidentiality   Should be careful about releasing information to the press2   Must follow HIPPA guidelines11  9. The process of allowing injured athletes to return to play is a much debated and litigious topic  o Have protocols established before the season and follow them:   All staff should be aware of return to play protocols  Assess problems on a case-by-case basis  Consider protocols for the following injuries   Concussions  Neck trauma  Orthopedic injuries Medical and Legal Issues in Sports MedPage 3 of 5    6.25.09 o To avoid the liability of negligence or fraud, the physician must show that approving athletic participation is not medically unreasonable and the athlete actually understands the risks9  o Waivers can establish informed consent of injury possibility   Establishes that the athlete has been INFORMED he/she might be injured yet still CONSENTS to playing  What to do when a physician is involved in a law suit 1. Know what the insurer expects and what is covered 2. Call the risk manager, lawyer and/or malpractice insurance carrier for advice  3. Most claims are dropped or settle well before a public trial 4. Prepare for a possible deposition  o Other than a jury trial, a deposition is probably the most stressful litigation event a physician will experience o Also important because the deposition offers physicians formal opportunities to rebut erroneous claims while demonstrating the merits of his/her care17  o A deposition occurs during the discovery phase of litigation   It follows a question-and-answer format, is given under oath and is recorded by a stenographer17  o Though most depositions are not videotaped, many states allow for this   Attorneys may resort to this tactic to "turn up the heat."17  5. Some strategies and guidelines to follow for a deposition include:  o Choosing a neutral location is the ideal location o If an opposing attorney comes to the physician's office anything they see can be used against the physician o Preferably travel to the opposing attorney's office if a neutral site is not agreed upon o Hold a mock deposition, having someone other than the attorney representing the physician   Ask tough questions to help prepare17  o Review the medical records   It is essential to know the details contained in the records during questioning17  o The physician should remember he/she has a limited role   Not an expert witness  Physician should not argue his/her own defense17   Answer in a clear, concise manner  Only answer the questions asked  If unsure about a questions, do not answer but instead ask the question to be rephrased for clarification17   Explain the circumstances   Offer an explanation of why the case did not turn out better  Sincerity and reasonableness are keys to defending the case17   Keep cool   Most depositions last less than two hours, so do not reveal any personality flaws that the opposing lawyer can take advantage of in court17   If there is a long pause between questions, ask if the deposition is finished, or "are there any further questions."  Medical and Legal Issues in Sports MedPage 4 of 5    6.25.09  Sometimes a stall tactic can be used to throw a physician off guard if he/she believes the deposition is complete  If it is stated that the deposition is over, no further questions should be asked o "If it wasn't written, it didn't happen," is not entirely correct17   Best practice-document as thoroughly as possible  A physician may plausibly rely and expound upon his/her "custom of care" to explain an apparent deficiency17  o If the case goes to trial, follow the same strategies as in preparing for a deposition  Preventing a Lawsuit 1. The most important step in preventing a lawsuit is knowing the standard of care and following it  2. In the pre-season, evaluate all the injuries which occurred during season  o Know what injuries are likely and what needs to be done o Set treatment protocols for specific injuries  o Review all Pre-participation physicals  3. Update treatment plans in preseason and again in the post-season  o There is a shared risk % for liability in a law suit, so the more a physician follows treatment protocols the less likely he/she is to be found 100% liable as the athlete will share liability12  4. Set up chain of command  o Know how other health care providers can help o Know what only a physician can do   Different scope of practice laws in each state 5. Plan ahead-both home and away games  o Review facilities o Emergency action plan o Know what can be treated at the playing site and what needs further evaluation and treatment 6. Ethical dilemmas to avoid  o Do not root for the team the physician works for18   Do not cheer during the game  Do not wear team colors  Physician should introduce himself/herself to the other team's coaches  Inform everyone the physician is there to protect the players o Manage the conflict of team's versus players' interest19   Pressure will be applied from the team to have the player return to playing quickly, sometimes against the best interest of the player  First responsibility should always be patient (player) safety and well-being o Advertise cautiously20   Ensure that new patients aren't seeing a physician just because of his/her exposure as a team physician  Do not pay to be a team's physician 7. Know what a physician can do if crossing state lines  o Know other state laws (scope of practice) o Consider becoming licensed in other states if frequently travel there Medical and Legal Issues in Sports MedPage 5 of 5    6.25.09 o Establish connections with team physicians from other states for assistance 8. Post-season: review the data of what injuries occurred  o Know which are the most common o Change treatment plans as needed based on yearly outcomes  References 1. Krueger v. San Francisco 49ers et al., 234 California Reporter at 584. 2. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 3rd Cir 3. Zemke v Arreola, No. B182891, 2006 WL 1587101 (Cal Ct App June 12, 2006). 4. Feagins v Waddy, 978 So2d 712 (Ala 2007). 5. Livingston v DeSoto Independent School District et al, 391 F Supp 2d 463 (ND Tex 2005). 6. Giambrone v Douglas, 874 So2d 1046 (Ala 2003). 7. Gilley v Hudson, 642 SE2d 898, 900 (Ga App Ct 2007). 8. L.A. Fitness Intern LLC v Mayer, 980 So2d 550, 561 n2 (Fla App Ct 4th Dist 2008, discussing FS §768.13). 9. Law for Recreation and Sport Managers, By Doyice Cotton and John T. Wolohan (2003) Pages 97-98 10. http://www.legis.state.wi.us/lc/committees/study/2006/DPLAN/files/memo1_dplan.pdf 11. http://www.hhs.gov/ocr/privacy/index.html 12. Ray, R. (2000). Management strategies in athletic training (2nd ed.). Champaign, Illinois: Human Kinetics. 13. http://dictionary.law.com/default.asp 14. http://www.enotes.com/wests-law-encyclopedia/gross-negligence 15. http://www.gillhams.com/dictionary/217.cfm 16. Bryant v. Adventist Health Systems Sunbelt, Inc., 2004 WL 689886 So.2d—FL 17. AAFP July/August 2001, Deposition: Defending Your Care, Peter G Teichman http://www.aafp.org/fpm/20010700/34depo.html 18. Polsky S., Winning medicine: professional sports team"s doctor"s conflicts of interest. J Contemp Health Law Policy 1998, 14:503-529 19. Johnson R. The unique ethics of sports medicine. Clin Sports Med. 2004; 23:175- 182. 20. Bernstein J, Perlis C, Bartolozzi AR. Ethics in sports medicine. Clin Orthop Relat Res. 2000; 378:50-60.    Authors:  Michael Waters, DO, & Maria Mahmoodi, MD, St. Vincent’s FMRP, FL  Editor:  Carol Scott, MD, University of Nevada Reno FPRP      

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