Professional Team Physicians Beware! Co-Employee Status May Not Ipso Facto Confer Tort Immunity

Article excerpt

Abstract:

The relationship between a professional athlete, his or her professional sports team, and a team physician is legally complex and has inherent potential for conflict. Although a physician should always consider an athlete's best interest when determining an athlete's fitness to participate in competitive sport, a physician also has a responsibility to his or her employer to act in the best interest of the team. The dual role of a team physician results in the potential for conflict if a professional sports team and the professional athlete's best interests do not coincide. The workers' compensation co-employee doctrine immunizes a professional sports team from vicarious liability in tort for its team physician's negligence. Recent judicial opinions and legal commentary suggest that the workers' compensation law barring tort suits between a professional athlete and a co-employee team physician for injuries caused within the scope of employment should not ipso facto confer absolute tort immunity for a physician. The argument being made is that if a team physician breaches the ethical and legal duty to provide the standard of care, the co-employee doctrine should not provide a shield from tort liability for harm caused to professional athletes. Physicians must be aware of legal opinions surfacing in the literature so they can understand that their most prudent approach, no matter what the circumstance, is to practice in a manner in which a professional athlete's health interest supersedes all other interests.

Key words: co-employee doctrine; exclusive remedy; negligence; professional sports; team physician; workers' compensation.

Introduction:

Present-day judicial opinions and legal commentary suggest that the absolute tort immunity provided under the co-employee doctrine of workers' compensation law may need limits to encourage the implementation of medical care that, above all other interests, protects the health and safety of professional athletes. Sport- medicine physicians involved as co-employees in the care of professional athletes must be aware of current opinions and commentary to better understand their risk of liability. The shield of workers' compensation law may not be a fail-safe defense for employed team physicians. Judicial and legal commentary about tort immunity in the context of the co-employee professional sports physician demonstrates why a prudent approach by all professional team physicians, despite their co-employee status, would be to act as a fiduciary where an athlete's health interest supersedes all other interests.

The Team Physician and the Professional Athlete

The most frequent claim raised against a team physician by a professional athlete is negligence. Negligence for sports medicine physicians may arise for 1) allegedly failing to diagnose a medical condition in an athlete, 2) failing to appropriately warn an athlete of a medical condition when the condition is diagnosed, or 3) improperly deeming an athlete medically safe for sports competition when a physician knows or should know of an imposing medical condition that should limit or suspend competition.

To establish a negligence claim, an athlete must prove four elements: first, that a duty of care exists between the athlete and the team physician; second, that the team physician has breached that duty; third, that the breach caused harm to the athlete; fourth, that the athlete has sustained injuries that can be quantified into damages.

Physician Duty

The existence of a patient-physician relationship legally establishes a physician's duty to appropriately diagnose and treat patients. In the environment of sports medicine, this relationship also involves a duty to disclose any material information to an athlete about his or her physical condition and to sufficiently inform an athlete regarding potential risks of participating in the sport. This is, arguably, a variation on the doctrine of informed consent; that is, an athlete must have all available information to make an informed decision to participate in a sport. Team management should expect a sport-medicine physician to discuss with management and athletes the risks and benefits of playing a sport on the basis of a medical evaluation.

Breach

Demonstration of a breach of the duty of care requires establishment of the appropriate standard of care. A team physician should consider only an athlete's best interest when determining an athlete's fitness to participate in competitive sports. A physician's determination should be based on a broad range of variables, including 1) the physical demands and intensity of the sport in relation to an athlete's unique clinical condition; 2) whether an athlete has previously participated in a sport with similar physical demands; 3) all available clinical, personal, and family history and a comprehensive physical examination of an athlete; 4) available medical organization and national conference guidelines pertinent to participation in competitive sports; 5) the probability and potential severity of adverse health events from sports participation, given an athlete's unique health status; 6) whether medication, monitoring, or protective equipment could mitigate the potential health risks and support safe sports participation; and 7) in the case of minors and young adults, whether an athlete has the capacity to make an informed decision if risks are present (Krueger v. San Francisco Forty Niners, 1987).

The standard of care has evolved as sports medicine has evolved from general medical practice to specialty practice. Supportive of the theory that sports medicine involves specialized practice and a potentially higher standard of care is the publication of guidelines by medical societies and specialty boards which have articulated medical clearance guidelines for use by clinicians making athletic participation recommendations (Maron et al., 1996). Courts have recognized standards and guidelines by national medical associations as evidence of acceptable medical practice (James v. Woolley, 1988).

Expert medical testimony is necessary to establish a breach of the standard of care. For example, an expert may testify that any treatment that benefits the short-term needs of a team but creates long-term damage to a competitive athlete is a breach of duty to an athlete (Keim, 1999).

Causation

The burden of proof that the breach caused injury or harm is an athlete's. A physician's failure to recognize or failure to warn of potential harm must result in injury to an athlete. Causation requires a nexus between a physician's negligence and the actual damage an athlete has sustained.

Causation may be reviewed at two levels: 1) cause in fact and 2) proximate cause. Cause in fact occurs when a physician's action is a cause of the actual harm to an athlete. Proximate cause considers whether a physician's behavior is a substantial factor in causing the harm an athlete may have incurred as a result of a physician's actions or inactions. For example, an argument can be made that a physician's failure to identify risk factors for heat stroke was the proximate cause of an athlete's death (Lapchick, 2006). Alternatively, failure to disclose the extent of an existing injury could be considered the proximate cause of a further injury (Krueger v. San Francisco Forty Niners, 1987).

Damages

Damages may include long-term recovery from an injury and loss of salary or limitations to other work capacity because of inability to play after injury. In the case of an athlete's death, the claims are typically pursued by an athlete's estate or surviving kin. It is their responsibility to prove what an athlete's life may have been worth in order for a court or jury to award damages. Awarding damages is an attempt to make an athlete whole, that is, as though the injury never occurred. Expert medical testimonies, in conjunction with an economic analysis provided by an expert economist, are often necessary to measure damages.

Although negligence is the most frequent claim brought against team physicians, other claims have been successfully and unsuccessfully litigated, including, but not limited to, 1) fraudulent misrepresentation, 2) concealment of medical information, 3) intentional infliction of emotional distress, and 4) when an athlete is not cleared to play, discrimination under the Americans With Disabilities Act (1990) and the Rehabilitation Act (1973). Each of these claims deserves to be evaluated as a unique legal concept, and they are not discussed here.

Is the Shield of Workers' Compensation Law a Myth for a Physician Employed by a Professional Sports Team?

Interaction of Workers' Compensation and Tort Law

Workers' compensation law is state defined. Thus, it varies by jurisdiction. Generally, in the case of an employee injured while acting within the scope of employment, workers' compensation law is thought to be an efficient and adequate remedy to compensate injured employees without the necessity of proving fault of an employer. The law allows compensation for employees for work-related injuries. In exchange for the absolute requirement to pay injured employees, the law shields employers by setting recovery limits at modest amounts and specifying the remedy provided as the exclusive remedy (Workers' Compensation Law, 1993). No tort liability is allowed.

A professional athlete is entitled to workers' compensation benefits for aggravation of an athletic injury caused by the negligent care by a team's medical personnel. A player whose injury is secondary to negligent medical care or the failure to provide reasonable medical care is barred from recovering tort damages against the team or its employees, including a team physician who has co-employee status (Keim, 1999; Mitten, 2002).

Generally, the exclusivity provided under workers' compensation law bars all tort claims against physicians employed by professional sports teams. It is likely the defense on which most employed team physicians rely when sued for negligence by an employed athlete.

There is an exception in most jurisdictions for certain common law claims, such as injuries resulting from the fraud or defamation of an athlete by a team physician, team management, or both. Similarly, the exclusivity remedy provisions of the state workers' compensation laws will not bar a medical malpractice claim against an employer or co-employee team physician for an injury caused by conduct intended to harm an athlete (Hertz, 2001; Mitten, 2002).

Beyond the exceptions carved out for fraudulent and intentional tort claims, some courts' dissenting opinions, as well as some legal commentaries, argue for the erosion of the shield of workers' compensation as a fail-safe defense for employed team physicians. One argument is that a special relationship exists between a team physician and a professional athlete, extending the duty of care beyond the duty of a company physician to a company employee. The argument is grounded in the belief that professional sports have elevated economic incentives, and the pressure to win causes a team physician to meet the teams' immediate needs rather than the health interests of professional athletes. The belief is that potential tort liability creates a legal incentive which urges team physicians not to succumb to the pressures that are inherent in professional sports.

Korey Stringer, a professional football player for the Minnesota Vikings, died from complications of heat stroke during preseason training camp in 2001. His heirs alleged that the Vikings' team physician provided negligent medical care. In Stringer v. Minnesota Vikings Football Club, LLC (2004), the trial court held that there is no immunity if a co-employee, in this case the team physician, owes a personal duty of care to a fellow employee, namely the football player, which is "not pursuant to the employer's non-delegable duty to provide a safe workplace." Thus, the trial court is saying that the employer has a duty to provide a safe workplace for all employees, and beyond that, team physicians have a separate duty of care to football players that goes beyond the owner's responsibility to provide a safe workplace. Reversing the decision, the Minnesota Supreme Court (Stringer v. Minnesota Vikings Football Club, LLC 2005) subsequently ruled that the Minnesota Vikings team physician's duty to the professional athlete was fulfilled within the employment relationship and the professional sports team's effort to provide a safe workplace for its players. Thus, the Minnesota Supreme Court ruled that, in the case of Korey Stringer's death, the team physician did not have a separate duty of care to the football player beyond that of the team owner to provide a safe workplace. The dissenting opinion for the Minnesota Supreme Court expressed doubt that concealing the duty of a co-employee physician under the umbrella of an owner's responsibility to provide a safe workplace is a reliable legal remedy when a physician co-employee provides medical care to employees. The dissent also articulated a policy argument stating that extending immunity to co-employee physicians would encourage them to neglect their duties. Of note, dissenting opinions do not define the law but can give authority to an argument supporting a change in the law.

The California case of Hendy v. Losse (1990) raised issues that make the absolute immunity of a co-employee team physician less certain. Hendy explored a dual-capacity theory, that is, when an employer has two separate relationships with employees. An employer, normally shielded from tort liability by the exclusive remedy principle, may become liable in tort to an employee if the employer occupies, in addition to its capacity as employer, a second capacity that confers additional obligations. California courts have long recognized that a physician, as an employee of a company, may operate in the dual capacity of co-employee and physician. In Hendy, a professional football player's malpractice case against the team physician was allowed to proceed at the trial level on the basis of the dual-capacity doctrine. The California Supreme Court (1991) dismissed the claims, holding that the state's workers' compensation laws bar tort suits between co-employees for injuries caused within the scope of employment. However, the Supreme Court stated that if a co-employee provides medical care other than that contemplated by the employee's employment, the physician co-employee no longer enjoys immunity from tort.

Some legal commentators have articulated the belief that if a team physician breaches his or her duty of care to a team's athletes, the co-employee doctrine should not provide a shield from tort liability. According to Young (2003), "[A]ny notion that a doctor's co-employee status will shield his liability to a patient he negligently treats should ... be removed." In Mitten's opinion (2005), "[A] team physician should not have immunity from malpractice merely because he or she is characterized as an 'employee.'"

Conclusions:

Professional sport-teams physicians in charge of clearing professional athletes for competition and treating professional athletes' injuries have a complex position with unique responsibilities to athletes. A co-employee professional team physician should be mindful of the best interests of athletes and sustain the appropriate standard of care. If physician negligence is alleged, workers' compensation laws may shield a physician from tort liability arising from injuries occurring in the course of an athlete's employment, so long as there is no finding of fraudulent or intentional misconduct. However, the dual-capacity doctrine articulated in Hendy, the dissenting opinion from the Minnesota Supreme Court in the Korey Stringer case, and expert legal commentary should give physicians, acting in the co-employee role for professional sports teams, reason to reflect on their potential liability. A prudent approach-in an attempt to reduce potential for tort liability-would be to understand that, despite the co-employee status of team physicians, all the inherent responsibilities of independent contractor physicians, who are not shielded from tort liability, may apply in a court of law, and an athlete's medical interest should supersede all competing interests.

References:

Americans with Disabilities Act, 42 USC [subsection]1210 et seq; 1990.

California Supreme Court 819 P.2d 1 (Cal. 1991).

Hendy v. Losse, No. D010557. Court of Appeals of California, 4th appellate District, Division One. 231 Cal. App. 3d 1149; 274 Cal. Rptr. 31; 1990.

Hertz, G. (2001). Professional athletes and the law of workers' compensation: rights and remedies. Law of Professional and Amateur Sports, 2, 15-1.

James v. Woolley. 523 So. 2d 110, 112 (Ala. 1988).

Keim, T. (1999). Physicians for professional sports teams: Health care under pressure of economics and commercial interests. Seton Hall Journal of Sport Law, 9, 139-58.

Krueger v. San Francisco Forty Niners. 189 Cal. App. 3d 823, 2 Cal. Rptr. 579 (1987).

Lapchick, R. E. Dying for the game. Retrieved June 9, 2006, from http://www.northeastern.edu/csss/rel-article22.html.

Maron, B. J., Thompson, P. D., Puffer, J. C., McGrew, C. A., Strong, W. B., Douglas, P. S., et al. (1996). Cardiovascular preparticipation screening of competitive athletes: A statement for health professionals from the Sudden Death Committee (clinical cardiology) and Congenital Cardiac Defects Committee (cardiovascular disease in the young), American Heart Association. Circulation, 94, 850-856.

Mitten, M. J. (2002). Emerging legal issues: A synthesis, summary, and analysis. St John's Law Rev, 76, 5.

Mitten, M. J. (2005). Team physicians as co-employees: A prescription that deprives professional athletes of an adequate remedy for sports medicine malpractice. St. Louis Univ Law J, 50.

Rehabilitation Act, 29 USC [subsection]504, 794; 1973.

Stringer v. Minnesota Vikings Football Club, LLC. 686 N.W. 2d 545 (Minn. App. 2004).

Stringer v. Minnesota Vikings Football Club, LLC. 705 N.W. 2d 746, 762 (Minn. 2005).

Workers' Compensation Law 68.13 (1993).

Young, J. D. (2003). Liability for team physician malpractice: A new burden shifting approach. Rutgers L Rec, 27:4.

Timothy J. Paterick

Barbara B. Paterick, JD

Timothy E. Paterick, MD, JD

From the Division of Cardiovascular Diseases, Mayo Clinic, Jacksonville, Florida.