Secondary Logo

Journal Logo

Medicolegal Sidebar

Serving on the Sidelines—The American Football Dilemma

Teo, Wendy Z. W. BA(Cantab), BM BCh (Oxon), LLM; Brenner, Lawrence H. JD; Bal, B. Sonny MD, JD, MBA, PhD

Clinical Orthopaedics and Related Research®: March 2018 - Volume 476 - Issue 3 - p 466–468
doi: 10.1007/s11999.0000000000000188
REGULAR FEATURES
Free

W. Z. W. Teo, Senior Research and Writing Fellow, BalBrenner Law Center, Chapel Hill, NC, USA

L. H. Brenner, B. S. Bal, BalBrenner Law Center, Chapel Hill, NC, USA

B. S. Bal MD, JD, MBA, PhD, University of Missouri, Columbia 1100 Virginia Ave. Columbia, MO 65212 USA Email: balb@health.missouri.edu

A note from the Editor-in-Chief: We are pleased to publish the next installment of “Medicolegal Sidebar” in Clinical Orthopaedics and Related Research®. The goal of this quarterly column is to encourage thoughtful debate about how the law and medicine interact, and how this interaction affects the practice of orthopaedic surgery. We welcome reader feedback on all of our columns and articles; please send your comments to .

The authors certify that they, or any members of their immediate families, have no commercial associations (such as consultancies, stock ownership, equity interest, patent/licensing arrangements, etc.) that might pose a conflict of interest in connection with the submitted article.

All ICMJE Conflict of Interest Forms for authors and Clinical Orthopaedics and Related Research editors and board members are on file with the publication and can be viewed on request.

The opinions expressed are those of the writers and do not reflect the opinion or policy of CORR® or The Association of Bone and Joint Surgeons®

Back to Top | Article Outline

Introduction

Whether orthopaedic surgeons should continue serving on the sidelines at professional football games is a current debate in the pages of Clinical Orthopaedics and Related Research®. In a 2016 editorial, the CORR® editorial board proposed that because American football participation may be responsible for degenerative brain disorders, orthopaedic surgeons should advise their patients to refrain from the sport [13]. Subsequently, a 2017 JAMA report in 2017 reported a high incidence of chronic traumatic encephalopathy (CTE) in football players, a debilitating disorder with lasting impact [18]. Considering these findings, most members of the CORR® editorial board followed up with the proposition that orthopaedic surgeons should exclude themselves from serving as team physicians for football games [14]. A sustained dialogue played out in letters to the editor [8, 15 21] and replies from CORR’s Editor-in-Chief [10-12].

In our opinion, the CORR editorials and the ensuing dialogue reflect a growing awareness in the orthopaedic community, as well as the general public, that professional football carries a risk of serious long-term injury to players. In addition to potential ethical concerns, team physician participation by orthopaedic surgeons in high-visibility sports has legal ramifications, which deserve a review.

Back to Top | Article Outline

Team Physician Liability and Case Law

Beyond the physician-patient relationship for medical care provided to athletes, the team physician has relationships with other stakeholders, such as the team owners, and the media. Still, when treating injured athletes, the team physician has a duty to fully inform the injured player about all details relevant to the injury, and potential problems that can arise from continued sports participation [6]. Failure to abide by this duty has led to substantial verdicts and settlements against team physicians.

In a 1987 court ruling, San Francisco 49ers defensive tackle Charlie Kruegar successfully recovered damages from an NFL team physician, and other defendants, for failing to disclose the implications of an ACL injury, and relying on steroid injections to facilitate continued football participation [7]. Courts have found that injecting anesthetics and steroids into injured joints to keep the player on the field is a particularly egregious violation of physician duty; legal cases alleging physician negligence for doing so have led to large verdicts and settlements [9]. The public perception created by such lawsuits is that the team physician is serving the interests of the game and team owners, even though the majority of team physicians may be genuinely concerned about the welfare of their injured players [4].

In addition to a duty to fully warn the athlete of the risk of injury, the team physician should identify at-risk athletes and counsel them on how to avoid injury. In a 1988 Utah ruling titled Mikkelson v Haslam, a surgeon cleared his weekend warrior patient for unrestricted activities after recovery from a complex hip replacement [19]. The patient took up skiing, and ended up with a femur fracture. During the litigation that followed, the surgeon argued that while he had discussed general activity limitations after hip replacement with the patient, he had not specifically advised against skiing, reasoning that it was up to the patient to assume the risk of a sports injury in return for gains related to athletic participation. In rejecting this argument, the court denied the defense of contributory negligence that could have mitigated damages [19]. Since physicians of different specialties may serve on the sidelines, the standard of care applicable to team physicians is the same as for other physicians in that specialty. In other words, no team physician-specific standard of care currently exists [5]. Thus, in finding against the surgeon, the Mikkelson court relied on expert testimony from total joint surgeons, who opined that they would have forbidden the patient from downhill skiing [19]. Mikkelson was an appellate court decision, and it suggests that a team physician who clears an athlete to return to sports after an injury; such as head trauma, is open to standard-of-care testimony from neurologists and neurosurgeons as to the appropriateness of the decision. To mitigate this risk, NFL teams have independent neurologists and neurosurgeons, in addition to orthopaedic team physicians, who can identify warning signs of a concussion and take corrective action. These resources may not be available to physicians who cover other teams, such as youth football leagues, local high schools, or colleges.

Back to Top | Article Outline

Views and Analysis

The public view may be that the highly visible NFL team physicians stand to gain personally and financially from the advertising value of high-visibility sports [3, 14]. Media statements by team physicians are high-stakes events, particularly with an important game or high-value player on the line with attendant time and financial pressures. These media events can create a perception that surgeons place commercial interests and personal aggrandizement ahead of patient safety [2]. But existing case law shows that the legal system views the conduct of a team physician through the traditional perspective of a physician-patient relationship. While the team physician may have competing demands arising from relationships with other parties, such as team owners, and from the high-visibility environment of competitive sports, these considerations do not relieve the team physician of the responsibility for full disclosure, proper treatment, and concerns for patient well-being and safety.

Some authors have recommended that team physician engagement in competitive sports could be improved by the future development of specific standards of care for team sports, and certifications for such standards [20]. Continued team physician education programs have also been suggested; such programs have helped develop guidelines to identify and prevent injury from heat strokes among athletes [17]. To minimize legal exposure, orthopaedic team physicians should follow the lead of their colleagues, and adhere to the American Medical Association standards that call for providing competent medical care and honesty in all professional interactions [1]. Short-term gains from injured athletes returning to play, such as a high-value football player returning to a closely-contested game after a transient loss of consciousness, must yield to physician concern for the long-term health and well-being of the patient [16].

Back to Top | Article Outline

Conclusion

We believe that the traditional deference, respect, and trust enjoyed by the medical profession arise from the public perception that the goal of medicine is the health and well-being of patients. This ideal is compromised by support of an activity that creates long-term harm for the participant, such as CTE. The CORR editorials and the responses to them address an important issue: Whether orthopaedic surgeons’ participation as team physicians in professional football is consistent with the norms of our profession. Case law suggests that going forward, the legal system will probably hold team physicians responsible to alert football players of the foreseeable risks of the sport, including the development of CTE. Independent of legal liability, the question of whether orthopaedic surgeons should exclude themselves from serving professional football has led to a healthy debate that we hope will help clarify professional values, and contribute to the development of modifications to rules and equipment that make the game of football safer. Orthopaedic surgeons have a vital role in both the debate, and the desirable changes that will hopefully come from it.

Back to Top | Article Outline

References

1. American Medical Association. Principles of Medical Ethics. Available at: https://www.ama-assn.org/sites/default/files/media-browser/2001-principles-of-medical-ethics.pdf. Accessed January 3, 2018.
2. Appenzeller H, Appenzeller T. Sports and the courts. Available at: http://www.cap-press.com/pdf/9781611631272.pdf. Accessed January 3, 2018.
3. Fine K. Being a team physician: The how's and why's. Univ Penn Orthop J. 1998;11:40–46.
4. Jenkins S. Opinion: What happens to a company that dopes it workers? If it’s an NFL team, not much. Available at: http://www.chicagotribune.com/sports/football/ct-nfl-painkiller-use-sally-jenkins-20170510-story.html. Accessed January 2, 2018.
5. Keim T. Physicians for professional sports teams: Health care under pressure of economics and commercial interests. Seton Hall J Sport Law. 1999;9:139–158.
6. King JH Jr. The duty and standard of care for team physicians. Hous Law Rev. 1981;18:657.
7. Krueger v San Francisco Forty Niners, 189 Cal.App. 3d 823,234 Cal.Rptr. 1987.
8. Kweon CY, Scheidegger RI, Gee AO, Chansky HA. Letter to the Editor: Editorial: Do orthopaedic surgeons belong on the sidelines at American football games? Clin Orthop Relat Res. [Published online ahead of print]. DOI: .
9. Landis M. The team physician: An analysis of the causes of action, conflicts, defenses and improvements. Available at: http://via.library.depaul.edu/cgi/viewcontent.cgi?article=1104&context=jslcp. Accessed January 3, 2018.
10. Leopold SS. Reply to the letter to the editor: Editorial: Do orthopaedic surgeons belong on the sidelines at American football games? Clin Orthop Relat Res. 2017;475:3112–3115. (rodeo)
11. Leopold SS. Reply to the letter to the editor: : Do orthopaedic surgeons belong on the sidelines at American football games? Clin Orthop Relat Res. [Published online ahead of print]. DOI: .
12. Leopold SS. Reply to the letter to the editor: Editorial: Do orthopaedic surgeons belong on the sidelines at American football games? Clin Orthop Relat Res. [Published online ahead of print]. DOI: .
13. Leopold SS, Dobbs MB. Editorial: Orthopaedic surgeons should recommend that children and young adults not play tackle football. Clin Orthop Relat Res. 2016;474:1533–1537.
14. Leopold SS, Dobbs MB, Gebhardt MC, Gioe TJ, Rimnac CM, Wongworawat MD. Editorial: Do orthopaedic surgeons belong on the sidelines at American football games? Clin Orthop Relat Res. 2017;475:2615–2618.
15. Marcus RE, Barnes CL, Amendola A. Letter to the Editor: Editorial: Do orthopaedic surgeons belong on the sidelines at American football games? Clin Orthop Relat Res. [Published online ahead of print]. DOI: .
16. Matheson GO. Taking a longer-term perspective on injuries. Phys Sportsmed. 2001;29:2.
17. Merkel DL, Molony JT Jr. Medical sports injuries in the youth athlete: Emergency management. Int J Sports Phys Ther. 2012;7:242–251.
18. Mez J, Daneshvar DH, Kiernan PT, Abdolmohammadi B, Alvarez VE, Huber BR, Alosco ML, Solomon TM, Nowinski CJ, McHale L, Cormier KA, Kubilus CA, Martin BM, Murphy L, Baugh CM, Montenigro PH, Chaisson CE, Tripodis Y, Kowall NW, Weuve J, McClean MD, Cantu RC, Goldstein LE, Katz DI, Stern RA, Stein TD, McKee AC. Clinicopathological evaluation of chronic traumatic encephalopathy in players of American football. JAMA. 2017;318:360–370.
19. Mikkelsen v Haslam, 764 P.2d 1384, 1386 (Utah Ct. App. 1988).
20. Mitten MJ. Team physicians and competitive athletes: Allocating legal responsibility for athletic injuries. Available at: http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1266&context=facpub. Accessed January 3, 2018.
21. Rodeo SA, Taylor SA, Kinderknecht JJ, Warren RF. Editorial: Do orthopaedic surgeons belong on the sidelines at American football games? Clin Orthop Relat Res. 2017;475:3109–3111.
© 2018 Lippincott Williams & Wilkins LWW