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The Team Physician: Ethical and Legal Issues

2015; Wiley; Volume: 7; Issue: 10 Linguagem: Inglês

10.1016/j.pmrj.2015.09.002

1934-1563

Cheri Blauwet, Bruce Greenfield, Eldon L. Ham, Gayle R. Spill, Debjani Mukherjee,

Shoulder Injury and Treatment

I have asked Gayle Spill, MD, to guest edit this Ethical Legal column. Dr Spill is a physiatrist and clinical ethicist who has been in practice for more than 20 years and has written on topics including cancer prognosis disclosure and quality of life considerations. She and I invited 3 experts to respond to a general query about the ethical and legal issues surrounding the team physician. Our first columnist, Cheri Blauwet, MD, is a physiatrist at Spaulding Rehabilitation Hospital and the Brigham and Women's Hospital in Boston, a Paralympic gold medallist, and chairperson of the Medical Committee of the International Paralympic Committee. Our second columnist, Bruce Greenfield, PhD, MA (Bioethics), PT, is an associate professor in the Division of Physical Therapy of the Department of Rehabilitation and a senior fellow at the Center for Ethics at Emory University who has authored publications on ethics in sports medicine. Eldon L. Ham, Esquire, our third columnist, is a lawyer, author, and a member of the faculty at the Illinois Institute of Technology/Chicago-Kent College of Law. He was the first lawyer to challenge and change the National Football League drug policy in court (Richard Dent v. NFL, 1988), and his athlete disability case (Knapp v. Northwestern University, 1994) is featured in leading sports law textbooks. Dr Spill and I welcome your comments on this column. Gayle Spill, MD Rehabilitation Institute of Chicago The decision about return to play at all levels of athletics is just one of the many issues fraught with ethical dilemmas that a team physician must negotiate. In the world of professional sports, where players are bought, sold, and traded like commodities, there are numerous stakeholders with potentially competing interests, along with huge financial risks and rewards for players, owners, and leagues. Even at the high school level (and sadly, in some cases, at even younger ages), interests other than an athlete's long-term health, such as scholarships, prestige, and bragging rights, have the potential to affect medical decision making. Whether it is letting a player compete with a "minor" injury or deciding between treatments with a quick return to sport versus better long-term outcomes, sports medicine physicians are at the center of the storm. In their 2004 article, Bernstein et al 1 explored ethical dilemmas such as the pediatric athlete, medical advertising, and disclosure and confidentiality, concluding that the "team physician is not exempt from the concerns of medical ethics because his or her patients are healthy athletes. To the contrary, there is an entire set of distinct ethical issues when treating the athlete as patient." Not only do distinct ethical issues exist, but distinct legal issues also exist that include licensing concerns when traveling out of state with your team and understanding the limits of liability waivers and the rights of the athlete with a disability 2. Our invited authors address some of these issues, including divided loyalties, athlete autonomy, informed consent, privacy and confidentiality, and the weighing of potential risks. Cheri Blauwet, MD Spaulding Rehabilitation Hospital One of my more memorable patients was a 35-year-old female paratriathlete with a goal to compete in an Ironman triathlon in approximately 8 weeks' time. The athlete was an active wheelchair user at baseline as a result of spina bifida, and this would be her fifth Ironman competition. Throughout her competitive career, she was having increasing shoulder pain that had not yet been evaluated. She finally presented to a sports medicine clinic when the pain had become prohibitive to both her training and daily function, causing pain with wheelchair transfers and, often, pain at night. A magnetic resonance arthrogram was obtained and revealed a superior labral tear from anterior to posterior, severe supraspinatus tendinopathy with a partial tear, and severe intra-articular long head biceps tendinopathy. Although these injuries were significant, the athlete was adamant about competing. After a discussion of the risks and benefits, she elected to proceed with a glenohumeral joint corticosteroid injection with ultrasound guidance. The intervention provided 80% pain relief and enabled her to continue training. She competed in the Ironman triathlon 7 weeks later, finishing in second place. As sports medicine physicians, we consider it our duty to enable athletes to succeed against all odds and push themselves to the limits of their ability while balancing the associated risks innate to sport. To accomplish this goal, we mend acute wounds, nurse overuse injuries, and, importantly, work in concert with coaches, therapists, and athletic trainers to institute aggressive injury prevention programs. We take great pride in being the facilitators of epic athletic accomplishments and collaborate carefully with athletes to ensure that their autonomy is recognized and respected. Yet, when viewed through a broader lens, our role as physicians is to preserve health and, in most respects, protect our patients. At times, the pursuit of athletic accomplishment is in direct conflict with this moral imperative. It is clear that athletes frequently leave the playing field in far worse shape then when they started, at times from a catastrophic acute injury or with the potential long-term sequelae that will remain with them for the rest of their lives. What level of personal athletic glory is enough to justify impaired health and function in the future? How does one know where that line is for each individual player? How do we determine where our responsibility as a team physician should lie? This conundrum between the autonomy of the athlete and the protection, or paternalism, of the physician presents itself in a number of ways and rings true in all realms of sport. Within this context, a few classic examples come to mind. In American football and other collision sports, the effects of multiple concussions may put athletes at risk for chronic cognitive and emotional impairments that have an impact on both their professional and personal lives for years to come 1. As increasing numbers of young girls and women become involved in sport, the incidence of anterior cruciate ligament tears has markedly increased, and with it, the risk of early knee osteoarthritic changes and associated functional decline 2. Particularly important considerations arise in Paralympic and adaptive sports competition, where sports-related injury can have a dramatic impact on the athlete's day-to-day function in both the short and long term. In all of these scenarios, it is important to note that athletes often minimize these potential functional consequences of sports injury. Certainly, athletes fear a few well-known "game changers"—for example, a glenoid labral tear in a pitcher—and thus strive to prevent them. More commonly, however, athletes remain naïve to the manner in which their current competitive career may affect the quality of their life in the future. Even when armed with this knowledge, many athletes will still choose to compete after a personal assessment of the health, social, and, in the case of professional athletes, financial benefits of sport. Adding more complexity are the varied levels of paternalism that accompany different conditions. For some athletes, our responsibility as a team physician is to stop the athlete dead in his or her tracks and prohibit competition all together—for example, in the case of cardiac anomalies that may increase the risk of sudden cardiac death. For other athletes, we may actually be facilitators for a slow, steady decline in function—for example, in the case of overuse injuries such as advanced tendinopathies. At times, the drive for empowerment of the athlete (or personal gain of the physician) crosses yet another line. In the case of performance-enhancing drugs, unscrupulous team physicians have been implicated in the facilitation of systematic doping, enhancing the likelihood of a win through the illegal use of prohibited substances or methods 3. I competed at high levels of sport for more than a decade as a Paralympic wheelchair racer. Throughout my athletic career, I stumbled through many acute and overuse injuries, including episodic, yet persistent right shoulder pain. These symptoms never stopped me from competing, but I frequently required intensive rehabilitation. Now only 7 years out from my sports career, I experience daily "reminders" of my past athletic accomplishments, manifested as persistent shoulder pain with transfers and repetitive overhead activities. These symptoms are not pleasant. That said, when competing for Team USA, I would not have let anything stand in my way. Additionally, I recognize that I have also reaped the benefits of living an active, sports-centered lifestyle for most of my life, enabling me to achieve an exceptionally high level of mobility and physical fitness. Taken as a whole, I am comfortable with the decisions that I made. I do, however, fear what my function may look like 10, 20, or even 30 years down the road. I am nearly certain that a shoulder arthroscopy is in my future. Ultimately, the role of team physicians is to facilitate our athletes' goals of fun, fitness, and personal accomplishment through sport, and thus I would argue that in most cases, the risk/benefit analysis of potential injury should lie in the individual athlete's hands. That said, we must take further steps to ensure that athletes are fully aware of cutting-edge injury prevention programs and, if an injury occurs, their diagnosis and functional prognosis. A few exceptions exist, such as for persons with life-threatening conditions for whom sports participation may lead to fatal events. For the most part, however, the athlete should be enabled to give "informed consent" to participate, empowered with knowledge and then allowed to choose, placing current gain in the context of long-term risk. With this consent in hand, the team physician may rest a bit easier at night, knowing that the athlete may responsibly move forward to pursue his or her dream. Bruce H. Greenfield, PT, MA, PhD Center for Ethics, Emory University A few years ago, I was contacted by a physical therapist employed by a National Basketball Association (NBA) team. The players' union was on strike, and players did not have access to team medical care. The physical therapist was contacted by a player to rehabilitate a knee injury. The player asked to resume rehabilitation at an off-site facility without consent of the team management. The physical therapist was unclear about his obligations to the player and to the team. This case raises a fundamental ethical question of health care professionals who work with sports teams. To what extent does this physical therapist's loyalty to honor his contract as an employee to the team supersede his obligation to provide the best patient care to this athlete? I could argue that because the players chose to strike, they forfeited their rights to receive medical care from team health care professionals. However, the physical therapist struggled with his competing obligations as a health care professional guided by a code of ethics and as an employee of a corporation with an obligation to loyalty. As I recently wrote, "The unique structural relationship of sports franchises has challenged the traditional fiduciary role of health care professionals to their patients and has given rise to potential ethical conflicts" 1. A health care professional employed by a sports team must rethink the traditional dyad relationship between himself and the patient. The reality is that multiple stakeholders are affected by, and involved in, the health of an athlete. The coaches, other medical personnel and athletes, team management, and the press require health care professionals to balance competing ethical obligations 1. In the aforementioned case, I referred the therapist to the American Physical Therapy Code of Ethics, which states, "Physical therapists shall demonstrate independent and objective professional judgment in the patient's/client's best interest in all practice settings" 2. In other words, regardless of the fiduciary relationship to the team, he was first and foremost a health care professional obligated to work in the best interest of his client. One option for this physical therapist was to refer the athlete to a colleague who was not contractually obligated to the NBA team. In the end, I do not know what this therapist ultimately decided to do. In caring for athletes, health care professionals may sometimes compromise the most effective care to accommodate competing interests and goals of major stakeholders, including the athlete and the team. Testoni et al 3 considered the case of a high school football player who sustained a symptomatic meniscal tear. The team physician recommended a meniscal repair, a procedure that in his judgment would be best for preserving the athlete 's knee health but would require an extensive rehabilitation. The athlete, family, and coaches preferred a meniscectomy, resulting in a quicker return to sport. Testoni suggests that in these situations, the physician might forgo the ideal of shared decision making and instead turn to a more paternalistic approach. The challenge of using sound professional judgment and decision making can be particularly daunting when a health professional is providing sideline coverage. Consider the following scenario: The star quarterback for a high school team landed on his nonthrowing shoulder during the state championship game. The quarterback came out of the game, experiencing pain along the top of his shoulder in the area of his acromioclavicular (AC) joint. A volunteer physician who was providing sideline care for the team suspected the athlete had sustained a grade I bordering on a grade II sprain to his AC joint. Despite the physician's misgivings that the AC joint injury might be more significant than immediately judged, the physician was confronted by the coach, who physically pushed the injured quarterback back into the game while telling the physician that the athlete was "tough enough." It is often not clear who has the ultimate authority to make decisions for an injured athlete, particularly minors. No national standard of care applies to health care professionals or high school coaches covering athletic events except at the state levels. In the case of Cerny v Cedar Bluffs, the Supreme Court of Nebraska defined the standard of care applicable to football coaches as being "that of the reasonably prudent person holding a Nebraska teaching certificate with a coaching endorsement" 4. Health care professionals have an ethical obligation to know the laws, statutes, and policies in the states where they provide sideline coverage. Studies have shown that team management, including coaches, often pressure physicians and other health care professionals to return an athlete quickly to competition, sometimes before they are physically ready 3. Ironically, it was behavior like that of this overaggressive coach that allowed many concussed athletes to return unsafely to play, leading to policies that now protect concussed athletes. Health care professionals should not volunteer to work on the sideline if they are not confident enough (and properly trained) to advocate for the well-being of the injured athlete in the face of pressure from coaches or others. Given the pressure of sideline care, there is little room for dilettantes. Persons who choose to work with sports teams should be well trained and fully understand their ethical responsibilities. Fellowship training in sports medicine is available in several professions and includes training in the care of athletes and sideline coverage. Health care professionals entertaining thoughts of working with sports teams should be educated in basic principles of applied ethics. Physicians should become familiar with the American Medical Association code of ethics, which contains a subsection on sports medicine. The important point is that a health care professional who chooses to work with athletes will face ethical and legal challenges and should at the very least be mentored by an experienced professional to navigate issues as they arise. Most health care codes of ethics support the inviolability of confidentiality except under conditions in which the health care professional judges that the withheld information may result in harm to the patient or someone else. In addition, health care professionals are legally bound by state laws, as well as by federal laws (Health Insurance Portability and Accountability Act [HIPAA]) 5. The health care professional must decide what stakeholders have a need to know about an athlete's health care status. To what extent do team management and related stakeholders have a right to medical information about an athlete? Without a doubt, the team has a stake in the medical and rehabilitation decisions affecting the care of an athlete, but does team management need to know if an athlete is positive for the human immunodeficiency virus, or if he or she has a history of clinical depression? Do coaches and other players have a right to know the sexual orientation of an athlete? According to HIPAA, information received in the care of professional athletes by team physicians may be considered part of the employment record and is not viewed as protected health information. Yet, even so, a survey of sports medicine physicians found that half of the respondents who received confidential information about recreational drug use, blood-borne infections, and the use of pain relieving and enhancement medications did not disclose the information to team management 6. These results suggest that physicians judge the type of information that should be disclosed on a case by case basis, regardless of their contractual obligations to the team. In summary, the organizational pressures involved in winning and success often compel team officials (and the athlete as well) to return to competition as quickly (and hopefully as safely) as possible. Health care professionals who work with sports teams need to be prepared to deal with ethical issues as they arise. Given that these issues are ubiquitous and often part of routine clinical decision making, health care professionals must be properly trained and knowledgeable in ethical decision making. Eldon L. Ham, Esq. Illinois Institute of Technology/Chicago-Kent College of Law A body of conflicting, often volatile standards called return to play (RTP) has become an increasing focus of sports medicine. Similar RTP decisions for clearing disabled athletes are necessarily modified by unique medical risks, heightened emotional factors, and narrowly defined legal standards. Sports medicine is fraught with conflicts among the athlete patient, coaches, zealous parents, school officials, and medical ethics. One study specifically ranked 19 different factors to consider within the decision-based RTP model 1, 2. Included were medical factors such as symptoms and severity of the injury; sports risk modifiers (eg, the type of sport, position played, and competition level); and decision modifiers (eg, timing, the season, and external pressures from the key parties). For disabled athletes, there is often an elevated level of risk, the emotional stakes are higher, and the decision modifiers include a critical element: federal disability laws. Moreover, at least 2 other arbitrary pressures are at work: sensationalism, coupled with the decision maker's own personal motives. As human beings we have genuine concern for others, but some of us are influenced by a need to control others. The sensationalism might be deemed the "Hank Gathers Effect," named for the Loyola Marymount basketball player who died on the court during a televised game on March 4, 1990. Unfortunately, sensationalism can distort perspective through fear of lawsuits, criticism by colleagues, or a compulsion to think for others, hearkening the "for your own good" argument, which historically has been used to control others—for example, girls should not play basketball "for their own good," and disabled athletes should not be cleared to play "for their own good." This problem is not hypothetical. A Columbia football recruit who was blind in his right eye was denied medical clearance. The doctors believed he could lose sight in the other eye, which for them was too risky. However, when the player sued, the court ruled that such conservative control efforts violate Section 504 of the Rehabilitation Act of 1973 3 (see similar standards for the Americans With Disabilities Act of 1990 4), which prohibits paternalistic decisions about which activities are too risky for qualified disabled persons 5. Invoking the subjective "for your own good" standard often proves its own fallacy. Blind people should not be commercial airline pilots not merely for their own good, but for the obvious safety of others. Ergo, "for your own good" is a motive of last resort, because if other deciding factors were present, why use it? To be legally disabled, the athlete must have permanent impairment of a major life activity such as walking, seeing, working, and others; being legally disabled does not entail having temporary injuries such as torn anterior cruciate ligaments 3. If the athlete has a qualified disability, the right to participate hinges on whether the disabled athlete can perform (1) in spite of the disability (can he or she actually play basketball, for example), with (2) reasonable accommodation, like having an inhaler present or wearing a special brace. The reasonableness of the accommodation can be a volatile issue, such as whether golfer Casey Martin's use of a golf cart on the Professional Golfers' Association (PGA) tour was reasonable 6, or whether the steel blade artificial legs of South African sprinter Oscar Pistorius were reasonable. If any such accommodation changes the nature of the sport, provides undue advantages, or serves as a risk to others, it is not deemed reasonable. However, there is still one more key hurdle: Will there be a likelihood of substantial harm to the participant? This question is a narrow version of the "for your own good" principle. It is required, yet it comes with at least 3 basic problems. First, it can be confusing. It is not about the likelihood of the harm being substantial given that a harm occurs—a big distinction. Second, it begs the definition of subjective terms such as "likelihood," "substantial," and "harm." Third, it is at odds with the fundamental medical principles of "first, do no harm" (sometimes referenced as primum non nocere) and the resultant medical propensity to be conservative about risk. However, "likely to cause substantial harm" is not as murky as weighing merely possible risks. More directly, "Is a substantial harm to the disabled athlete likely to occur as a result of playing?" A leading basketball case occurred in 1994 in the wake of Hank Gathers' dramatic 1990 death. The disabled athlete was Nick Knapp, a leading basketball player from Peoria, Illinois, who experienced a heart stoppage while still in high school but after being tendered a full basketball scholarship by Northwestern University 7*. No one ever diagnosed the precise cause. Northwestern honored the scholarship, but its team physician refused to clear Knapp. This action may have satisfied conservative medical principles, but it ignored, somewhat understandably, the legal mandate. Expert medical witnesses at trial could not say there was a likelihood of it ever happening again, but some testified that playing basketball would not make it any more likely. Moreover, a cardiac defibrillator had by then been implanted inside Knapp to operate like a pacemaker if needed, thus reducing the risk aspect further. The Federal District Court in Chicago ruled that Knapp should be allowed to play, but Northwestern chose to keep fighting. The U.S. Court of Appeals eventually ruled in Northwestern's favor, but on completely different grounds by finding that Knapp was not disabled in the first place. A great deal of the case was spent on whether Knapp could likely inflict substantial harm upon himself by playing at Northwestern, and the evidence seemed to say "no." Then the Court of Appeals ultimately skirted all of that and decided that he was not disabled at all by using a circular argument. To be properly "disabled" under these laws, one must have a condition that impairs a major life activity, as opposed to a mere injury. If a worker or athlete has such an impairment but can perform anyway (for example, a computer programmer who has an amputation), federal law says this person cannot be excluded just because of the disability. In the Knapp case, the Appeals Court said that the major life activity that was impaired was his activity of "learning," which it reasoned was relevant because he "participated in learning" by playing basketball. But then it said he could really "learn" elsewhere, and thus therefore he didn't "need" basketball and thus was not disabled at all. That's like firing a computer programmer with one leg, then telling him it is OK to be fired on the grounds that he is not really disabled because he can work elsewhere. The court failed to comprehend the definition of disability. His condition may have disqualified him from being a lifeguard, pilot, or bus driver, but the whole point of the case was that his disability did not, under the law, disqualify him from being a Big Ten basketball player if he could play in spite of the disability and there was no likelihood of substantial harm to himself. The whole point of federal disability laws is to mandate fairness without forcing the disabled to keep searching for it. The Court of Appeals said that Knapp's only impaired life activity was learning, which basketball provided, and so he could go learn elsewhere and thus was not disabled, a finding that only begs the original question: programmers, teachers, lawyers, and doctors could never be deemed disabled and legally protected, because they could always hope someone would employ them elsewhere? Many key athlete disability cases came after the Knapp decision, including Casey Martin's PGA case and the Oscar Pistorius Olympics eligibility. More than 2 decades after the Knapp decision, a confused bias remains concerning the apparent disability conflicts between medical ethics and federal disability laws. Even so, the law does not mandate that physicians alter their own views about risk; rather, it overrides those views where disabled athletes (and others) can perform in spite of their own disability without a likelihood of substantial harm to themselves. For athletes, the need to compete is compelling, as found by the trial judge in the Knapp case. Over the years there have been one-legged skiers, blind skiers, and even blind pole vaulters. They all have elevated factors of risk. Ben Comen, a celebrated high school cross-country runner with cerebral palsy, was featured by Rick Reilly in Sports Illustrated 8. The determined Comen would fall numerous times in the 51 minutes it took him to finish the 3.1-mile course, but Comen was an inspiration to the scores of top finishers who made a point of rejoining him on the course to cross the finish line again with him. Denying such a privilege to the Comens of the world, or to Nick Knapp or Casey Martin and others, should not be done arbitrarily.