View metadata, citation and similar papers at core.ac.uk brought to you by CORE

provided by Elsevier - Publisher Connector

Several rccclH high visibility CLISCS. ~ilrtiCl~li~r~y thC tragic athlete ( I I ,12). These conflicting objectives may become c en deaths of Rcggic Lewis and ank Gatbcrs, have raised certain more acute when the physician is compensated for his scrvi

01994 hy the American College of Cardiolo&y and American College of Sporls Medicine JACC Vol. 24, No. 4 MIlTEN AND MARON 862 October 1994:x45-99 LEGAL CONSIDERATIONS during athletic competition (14,15),but the legal enforceability of court probably would consider whether there is a relatively such waivers is judiciahy unresolved at present. equal split of medical opinion regarding an athletic clearance recommendation in a bordenline case, or whether a single physician’s opinion deviates from either accepted or customary Legal medical practice. Indeed, consensus recommendations in this Disagreements with regard to the propriety of competitive Bethesda Conference report may potentially courts and athletic participation with a cardiovascular abnormality may be lay athletic officials in evaluating the merits of conflicting resolved on an in&idual basis under the Americans with participation recommendations. Disabilities Act of 1990 (ADA), the Rehabilitation Act of 1973 There arc few reported cases discussing the appropriate or similar state statutes prohibiting unjustilied discrimination legal standard of care for evaluating and diagnosing an ath- against physically impaired athletes (13,18,19). These statutes lete’s physical condition and making medical clearance recom- provide that an athlete with the physical capabilities and skills mendations. The law enables the medical professiom to estabb- necessrtryto play a sport despite a cardiovascular abnormality lish the bounds of appropriate physician maflageme~t of is entitled to have his or her condition individually evaluated in athletes; indeed, it is the ~?e~~ica~standard that is ultimately light of medical evidence, Exclusion from an athletic team translated into the legal standard for malpractice purposes must be based on reasonable medical judgments, given the (O,!(l). Traditionally, in nlalpracticc claims the applicable legal state of scientihc knowledge. Thcsc statutes also reyuirc standard of medical care within the physician’s specialty (i.c., careful balancing of an impaired athlete’s right to participate in “good medical practice”) is defined judicially as cithcr the athletic activities within his or her physical ahilities, physician customary or acccptcd cart under the circumstances (9,10). In evaluation of the medical risks of athletic participation and the treating athletes with cardiovascu!ar conditions, physicians are team’s interests in conducting a safe athletic program (13). liable for malpractice only if they deviate from p*ofcssionally In attempting to resolve disputes regarding whether an determined standards; that is, by failing to conduct appropriate athlete with a cardiovascular ahnormality should be permitted diagnostic tests, incomplete disclosure of the medical risks of to play a competitive sport, courts rely heavily on medical competitive athletic participation, improperly clearing an ath- testimony documenting the risks of athletic participation under letc to play with a cardiovascular a~n[~rmali~ or failing to such circumstances. In Larkin v Amhdiocese of Cincinrrari (5). follow guidelines accepted by the medical profession as the the trial court held that a high school could exclude one of its standard of cart. students, Stephen Larkin, from its football team because he Perhaps the most publisizcd malpractice lawsutt thus far had structural heart disease. The court based its decision on involving the medical care of a competitive athlete concerned the unanimous rccommcndations of examining cardiologists Hank Gathers (I), a nationally recognized player at against Larkin’s continued participation in competitive, intcr- Loyola-Marymount University in Los Angeles who collapsed scholastic sports and held that such exclusion did not violatc and died on the basketball court during an intercollegiate the Rehabilitation Act of 1973.The family (on behalf of their game in March 1990.In Gcrtltcrs I’ Loyola-Matymounr Univerdy son, a Icgal minor) was informed of the medical risks of his (6). the Gathers heirs alleged that Gathers was not fully athletic participation and were willing to waive any future informed of the seriousness of his heart condition, should not claims against the school if he were permitted to play foothall. have been medically cleared to continue playing college bas- The court concluded that Stephen Larkin did not satisfy a ketball, and was given a nontherapeutic dosage of heart justitiable Ohio High School Athletic Association bylaw re- medication to enable him to perform. The Gathers case raised, quiring a physician’s certification of his fitness and that his but did not resolve, a number of important medical and legal parents did not have the legal capacity to waive their minor issues concerning the appropriate care of an athlete with a son’s righ!s. known cardiovascular abnormality and a competitive athlete’s In the well publicized case of former Celtics’ responsibility to protect his or her health. basketball player Reggie Lewis (3) (which has not involved A pending lawsuit broug,,: by the mother of former Oregon litigation), medical experts were sharply divergent with regard State University basketball player Earnest Killum, Lillard v to their diagnosis and evaluation of the risks associated with Sme of Oregorl (7) alleges that he was improperly cleared to Lewis’ continued athletic participation. Lewis died during a resume playing basketball, which led to his death. This case is medically unsupervised workout. and an autopsy showed his similar to the Gathers suit in that both alleged malpractice by heart to be abnormal. with ventriculur cavity enlargement and the treating physicians and interference with an athlete’s extensive scarring, findings consistent with healed myocarditis. medical cart by athletic officials, Killum had a history of two As yet, no court has considered the question of whether an strokes and then experienced numbness and slurred speech athIete with a cardiovascular abnormality may be involuntarily during a basketball game; tests determined that he had periph- excluded from a sport if medical experts disagree in their eral vascular disease. Physicians prescribed anticoagulant participation recommendations. An athlete who has been agents, and he was initially advised to withdraw from compet- denied medical clearance to play a sport may seek opinions itive basketball. Thereafter, medications were reduced, and from other physicians to convince team olficials or a court that Killum was cleared to resume college basketball despite rec- he or she is medica@ fit to play. In resolving such a dispute, a ommendations to the contrary by a consultant. He died 1 JACC Vol. 24, No. 4 MlTTEN AND MARON 863 October 1994~84.5-99 LEGAL CONSIDERATIONS month later, appareut~y of a massive cereb edical practice establishes a benchmark for legal standards, so, too, may me a useful resource gibilitydisputes when ~estjmouywith respect to the proprietyof athletic ~a~~c~pat~on with a cardiovascularabnormality. Should litigation arise ani; these recommendationsultimately relied on as the legal stan- dard of care, physicia would be prospectivelyinformed as to tinued participation in college basketball.Two other cardiolo- the expectations of e law, self-regulation would be sup- gists concurred with this opinion, and Central Connecticut ported, and eligibilitydecisions made by individualphysicians State University refused to allow nny to engage in its consistentwith the recommendationsshould be insulatedfrom tball program for two seasons.Penny ultimatelyobtained malpracticeliability. In these respects,it would clearlybe in the al clearance for competitive sports from two other best interests of physicians charged with responsibilityfor makingeligibility decisions concerning athletes to have existing and systematicrecommendations on which to rely. intercollegiatebasketball. Penny

death, and therefore the court did not consider the claim, it I. Mtrron BJ. Sounding Board. Sudden death in young athletes: lessons from [he Hank Gathers Alfair.N EI@J Med 1993;329:55-7. appears unlikely that pliysic~aurec~n~~~le us a~~~~~s~en- 2. Hudson MA. A legacy on court, in court. 1992 Ott 6; gaging in a competitive sport with a rly diagnosed Sect. Al. cardiovascularabnormality would be recognizedjudicially. 3. Fainaru S, Foreman J, Golden D, MacMuJJan J, Manly H, Kurkjian S. The death of Reggie Lewis. A search for answers. Boston Globe 1993 Sept 12; pp. 70-6. 4. Mitchell JH, Maron BJ. Epstein SE. 16th Bethesda Conference: cardiovas- cular abnormalities in the athlete: recommendations regarding eligibility for competition. J Am Cob Cardiol 1985;6:1186-232. 5. No. C-l-90-619 (SD. Ohio. Aug. 31, 1990) (oral findings of fact and This Bethesda Conference report provides guidance to conclusions of law supporting denial of injunctive relief and dismissal of physicians,athletes, team officialsand athletic governingbod- complaint) (Partial Transcript of Proceedings). ies, as well as to the courts, regarding the acceptablemedical 6. No. ‘c 759027 (Los Angeles; CA, Super. Ct, tiled Apr. 20, 1990). risks of athletic participation with known cardiovascularab- 7. No. BC 2941 (Los Angeles, CA, Super. Ct., tiled JaA. 19, 1993). 8. No. H89-280 (D. Conn, tiled May 3. 1989). normalities.This report is an unbiased and prospective con- 9. Mitten MJ. Team physicians and competitive athletes: allocating legal sensus of recommendationsby cardiovascularspecialists, hav- responsibility for athletic injuries. Univ Pitt L Rev 1993;55:129-60. ing the benefit of pooling the available scientific medical IO. King JH. The duty and standard of care for team physicians. Hous L Rev knowledge in conjunction with substantial, personal clinical lY81;18:657-705. II. Murray TH.Divided loyalties for physicians: social context and moral experienre. This document will assist interested physiciansin problems. Sot Sci Med 1986;U:827-32. making recommendations for participation in competitive 12. Murrav TH. Divided loyalties in sports medicine. Physician Sportsmed sports on the basis of information that extends beyond their 1984;1i:134-40. . - 13. Mitten MJ. Amateur athletes with handicaps or physical abnormalities: who own intuition, background and experience. The Conference makes the participation decision? Neb L Rev 1992;71:987-1032. recommendations also serve as a source of objective and 14. Taylor P iluck of the Irish. Sports Illustrated 1993 Jan. 18; p 52. informed guidance to physiciansencountering pressure from 15. UT says Larkin Can Play. Houston Chronicle 1992 Jan. 25; Sect. C4. competitive athletes or third parties to provide medical clear- 16. Rhoden WC. Stop, Look and Listen to the Heart. New York Times 1993 ance for participation in sports. Furthermore, these recom- Aug. 23; Sect. B8. 17. Eskenazi G. Athlete and health: many at risk. 1990 mendations should not be regarded as absolutely restrictive March 11: Sect. 8/l. but, alternatively, as a vehicle offering physicians a better 18. Derian SK. Of Hank Gathers and Mark Seay: who decides which risks an understanding of when they may wish to justify selective athlete is allowed to undertake? UCLA J Ed 1991;5:1-35. 19, Jones Cl. College athletes: illness or injury and the decision to return to play. deviationsfrom the Bethesda Conference guidelines.In some Buff L Rev 1992;40:113-215, instances,deviations consistent with good medicalpractice and 20. Altman LK. The Doctor’s World; An Athlete’s Health and a Doctor’s p,otection of an athlete’s health may be appropriate (9). Warning, The New York Times ,990 March 13; Sect. C3.