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

By Paterick, Timothy J.; Paterick, Barbara B. et al. | The Sport Journal, Summer 2007 | Go to article overview

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


Paterick, Timothy J., Paterick, Barbara B., Paterick, Timothy E., The Sport Journal


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. …

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