By G. Joseph Falconeri, Leigh Harrison-Wilson and Darrell J. Ogilvie-Harris, MD
Injuries are an inherent risk of sport. While no action will eliminate injuries, reasonable precautions can be taken so that injuries are less frequent and less serious, and exposure to liability is diminished.
ROLE OF THE HEALTH PROFESSIONAL
Many professional leagues require teams to have medical professionals available for assessment and treatment purposes. The medical team usually includes an orthopaedic surgeon, a GP specializing in sports medicine, physiotherapists and athletic therapists. The medical team does not simply treat acute injuries but bears responsibility for the athletes’ overall well-being.
Duty of Care
Members of the medical team are expected to have the expertise to respond to foreseeable medical situations and thoroughly and accurately assess the athletes’ fitness and abilities. Those who fail to recognize problematic symptoms or to utilize appropriate assessment modalities may be found liable. Every team must have a system of medical checks in place before athletes are put into play, and the medical team is crucial to the effective operation of this system.
Return to Play
The medical team is primarily responsible for clearing injured athletes to return to competition. Because there is no global standard applicable to granting medical clearance, the medical team will be judged by the standard of what a reasonable practitioner would recommend and provide under the circumstances. Courts will examine steps taken to protect athletes from injury, including the level of monitoring that took place, recommendations for protective equipment, use of such equipment by the athlete, and the foreseeable risk of injury as evaluated by the medical team and management.
With these considerations in mind, we recommend the following precautions for every medical team.
1. Assessment and Treatment
Clearance recommendations must be within the bounds of accepted and reasonable medical practices as prescribed by the various professional governing bodies. All members of the medical team should be aware of current professional recommendations and practice guidelines.
Health professionals cannot be held liable for honest error. Assessment and treatment need not be perfect but simply reasonable according to current professional standards. Medical teams that follow and document appropriate protocols will significantly reduce the risk of a successful lawsuit by an injured athlete.
2. Documentation
Findings and recommendations should be documented in writing and provided to the athletes, their representatives and the team. This practice will reduce exposure to a potential medical malpractice claim if management chooses to ignore the medical team’s advice.
3. Provision of Information
The medical team must ensure that athletes are fully informed of the risks of returning to play in light of their physical condition. We recommend disclosure to athletes of all material information necessary to allow for an informed decision, especially the risks and benefits of recommended treatment. This should be documented in detail in writing.
4. Second or Third Opinions
When in doubt, referrals should be made to an independent medical assessor. Seeking another opinion in times of uncertainty represents good risk management and can insulate against medical malpractice claims.
INTERACTION WITH MANAGEMENT
Management – a sports team’s owner or organizational sponsor (e.g. a university) – is responsible in law to place a medical team at the service of the sports team’s athletes.
Management may face liability in allowing injured athletes to return to competition before they are ready, particularly in cases where management has overruled the medical professionals’ recommendations. While it is always important to document findings and recommendations and inform all parties throughout the course of treatment, it becomes essential when management opposes the medical team’s advice.
Several crucial provisions should be included in any contract between medical service providers and management. Medical teams providing services to sports teams will not be covered by the usual malpractice insurance available to those in private practice. Management must ensure that sufficient insurance protection exists, and medical service providers should demand that they be indemnified by the team should a malpractice claim arise.
Medical malpractice lawyers will often attempt to choose jurisdictions in which favourable results are more likely. In order to avoid this “forum shopping” should a claim arise, the medical team should insist on a forum juris clause, whereby all malpractice claims must be brought in a particular jurisdiction.
CONCLUSION
Professional sports are extremely competitive and the industry is rife with potential claims. Often economics require teams to make decisions that will expose the team and its staff to liability. Under no circumstances should the medical team be placed in a position to act as catalyst for such decisions. By implementing the strategies recommended above, health professionals can reduce their exposure to liability while honouring their duties to athletes.
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