A Goldwater Rule for Sports Medicine

]. 22 ] does 21 ] and gamblers 10 gures, and therefore a lesson fi Published online: 26 April 2018 state explicitly that they have never met the athlete in question. A Goldwater Rule for sports medi- With that in mind, I propose the 1. Physician-commentators should dic surgeons. The informationby shared physicians isnot only scrutinized by sentimental fans rapidly with their hearts on their sleeves, but byleague fantasy- participants [ who have fortunesAnd on while almost the all of line theI statements [ have read overreasonable, the years armchair have been mentary medical can com- be harmful,professional and standards explicit may therefore be helpful. cine must start fromcommentary the about premise that professionalletes can ath- educaterespond the to public. storiesfacts People and much morewoven than around themous person experiences is a more likely fa- to stick. In and elite collegeare athletes peppered frequently withorthopaedic surgeons who quotations have never from examined theTwitter athlete feeds inprompted are comments question. loaded from with orthopae- un- schedule than anybiology of speech healing. about the following framework: my practice,fortunate episode of recounting Jerry Ricepatellar and his the fracture inweeks un- after a ACL gamemore surgery to just support [ 14 my unhurried rehab s s ” ” ’ ’ ], the 23 delusions “ without the t to serve as — fi ] with ” irrationally cruel “ ]. Copyright © 2018 by the Association of Bone and Joint Surgeons 8 12, 13 , [ ” ” paranoiac “ warn against the president “ The Dangerous Case of Don- cally regarding sports injuries of t of a face-to-face evaluation. it is unethical for a psychiatrist to fi fi “ ,to ], and generally un I wonder if there is a role for Newspaper and online articles de- By publishing this book, Dr. Lee ]. The Goldwater Rule is named after 20 2 a magazine that printed these opinions; the judgment was upheldSupreme by Court the [ U. S. a Goldwaterspeci Rule inprofessional athletes. orthopaedics, scribing the injuries of professional of persecution [ president. Goldwater successfully sued Barry Goldwater, the 1964 Republican Presidential nominee who was labeled by psychiatrists who neverhim as examined a offer a professional opinionor unless she he has conducted an[ examination Principles of Medical Ethicsso-called [ Goldwater Rule, which states that bene allegedly violatedAmerican Section 7 Psychiatric of Association the psychological instability and thegers dan- it poses Lee, a psychiatrist atof the Yale School Medicine,a book, hasald recently Trump: edited Mental Health Experts 27 Assess adent Presi- Psychiatrists and Philadelphia, PA, USA J. Bernstein, Department of Orthopaedic Surgery, University of Pennsylvania, the next ® ), University of ✉ . The goal of this section is ect the opinion or policy of es that neither he, nor any ict of Interest Forms for fl editors and board members . fi s amateur psychologists fl ’ ® ® . Clinical Orthopaedics and Re- s not just the amateurs who or The Association of Bone and s Uncle Stanley, all have de- ’

’ ® s state of mind. le with the publication and can be ’ busy. Self-appointed mental- resident Trump sure has kept the nation ﬁ ict of interest in connection with the 2018 by the Association of Bone and Joint Surgeons. Unauthorized reproduction of this article is prohibited. ﬂ

But it note from the Editor-in-Chief: We are Not the Last Word Ó Trump are taking this approach. Dr. Bandy tailed opinions to share about President columnists, late-night comedians, and my wife health experts, including newspaper viewed on request. The opinions expressed are thoseers, of and the do not writ- re Clinical Orthopaedics and Related Research cies, stock ownership, equity interest,licensing patent/ arrangements, etc.) that mighta pose con submitted article. members of his immediate family,commercial have associations any (such as consultan- lated Research authors and are on Orthopaedics and Related Research A pleased to present to readers of Clinical P Sports Medicine Joseph Bernstein MD Not the Last Word: A Goldwater Rule for Clin Orthop Relat Res (2018)DOI 476:1149-1153 10.1097/01.blo.0000533612.13677.63 Joint Surgeons clinorthop.org The author certi learned, and practiced. We welcomefeedback reader on all of ourplease columns send and your articles; comments to eic@ Not the Last Word to explore timely and controversial issuesaffect that how orthopaedic surgery is taught, [email protected] All ICMJE Con Joseph Bernstein MD ( Pennsylvania, 424 Stemmler Hall, Philadelphia, PA 19104, USA, Email: Copyright

Downloaded from https://mail.uphs.upenn.edu/owa by KgFmXNLSMJ4u1p6ztYvHWfuNA76izQU/ztryAc8YUPUg15KyDgTVvpTaQzTGoIKNgAyziy6WtTNezqpqQwMgDi0uNFYqr1Rat5qdQOaDE3PeQvfkcBm6BbAt1x3hFPPcHF+EQ2lqcFd6rCUZYN2T9sf7yKZ7Uc7piPWjJQ+Mz8y/ndNrWqjoBQ== on 06/24/2018 Downloaded from https://mail.uphs.upenn.edu/owa by KgFmXNLSMJ4u1p6ztYvHWfuNA76izQU/ztryAc8YUPUg15KyDgTVvpTaQzTGoIKNgAyziy6WtTNezqpqQwMgDi0uNFYqr1Rat5qdQOaDE3PeQvfkcBm6BbAt1x3hFPPcHF+EQ2lqcFd6rCUZYN2T9sf7yKZ7Uc7piPWjJQ+Mz8y/ndNrWqjoBQ== on 06/24/2018 1150 Bernstein Clinical Orthopaedics and Related Research® Not the Last Word

2. Physician-commentators should “squander the profession’sauthority before the league’s opening game not disparage the famous patient and goodwill” [19]. That rationale closed with the powerful message: with speculation, even with state- might apply to all fields of medicine. “The best entertainment in the world is ments that are generally true. For But the need for guidelines goes beyond back. Let the show begin” [15]. instance, fifth metacarpal neck that. The Goldwater Rule was enshrined This marketing strategy capitalized fractures may be associated with following a successful lawsuit, in which on the fact that, today, professional poor impulse control and wall Mr. Goldwater convinced the court athletics are grounded not just in com- punching. Osteonecrosis of the spurious psychiatric opinions met the petition or teamwork, but in entertain- femoral head may be associated legal standard for libel. Along those ment. More than just participants, with alcoholism. Wondering with- lines, inappropriate comments about athletes have become commodities that out evidence whether those gen- a professional athlete’s injury or its fans consume through attending games, eralities apply to a particular treatment may be similarly damaging to viewing televised competitions on their athlete, however, is unfair. the reputation of the athlete or physi- televisions and smartphones, supporting 3. Physician-commentators should cian. All of us—doctors, patients, and media coverage of elite athletes, en- take care to not disparage the society at large—will be better served gaging in fantasy leagues, or simply treating providers, either. A team by eliminating inappropriate comments purchasing team merchandise. physician’s treatment strategy may in the first place. Dr. Bernstein’s column presents on the surface seem strange, but it The rules above merely codify a thoughtful response to the potential may be driven by facts the public common decency, so some may say dangers of armchair medical com- does not know. These facts may that they are not needed. Orthopaedic mentary, including damage to the include elements of the past med- surgeons have certainly been more reputation of the athlete or the physi- ical history or the preferences of the circumspect than their colleagues in cians themselves. I agree that to enact patient-athletes or their agents. psychiatry regarding political com- afull-scaleGoldwaterRuleforsports Plausible justifications for non- ments. After all, when candidate medicine would be to dismiss the very standard approaches should be Trump could not remember which foot nature of this multibillion-dollar en- offered. had the bone spurs [7] that exempted tertainment industry, one which 4. Nonstandard approaches to di- him from the Vietnam war, no ortho- derives nearly as much from the agnosis and treatment should be paedic surgeon wrote a book entitled observers—the fans and reporters and placed in context. Immediate sur- The Curious Feet of Donald Trump: 26 commentators and physicians—as gery for a fifth metatarsal fracture Bones That Might Be Affected. from the athletes themselves. may make sense for a football Well-formed rules promoting a fair Further, full-scale extension of the player hoping to salvage the sec- and accurate discussion about pro- Goldwater Rule might improperly con- ond half of the season, but not for fessional athletes’ injuries can educate flate expressing a negative opinion with many other people. That distinction the public and improve musculoskele- having deliberate malice. Senator Gold- should be stressed. tal health. water’s lawsuit was successful because 5. Ignorance should be confessed. If Benjamin G. Domb MD the publication’sinflammatory com- you don’t know, say “I don’t know”. Medical Director, American Hip ments met the high standard required of Much of sports medicine concerns Institute libel cases involving public figures [5, orthopaedics, but not all of it: Nu- Past Head Team Physician, Chi- 11, 17, 20], but only in extreme scenar- trition, cardiology, and psychology, cago Sky, WNBA ios might the same be said of a sports to name just a few examples, may At the start of the 2017-2018 sea- medicine physician’s evidence-based be the topic of the day. If the sub- son, the National Football League and professional diagnostic opinion. ject is outside of one’s expertise, no (NFL) launched a new ad campaign, Most importantly, this piece identi- commentary should be offered. one which touted the NFL as the fies some of the benefits of physician “longest-running entertainment show commentary on athletes’ injuries, per- Are these rules needed? Sally Satel, on TV” [4]. Movie-style posters and haps the most compelling of which a colleague of Dr. Lee’s at Yale, stated trailer clips warned viewers to “brace relates to health education. As Dr. that the main reason for the Goldwater themselves for shock and awe” in the Bernstein aptly points out, professional Rule is that psychiatry must not coming season, and the ad released athletes provide a powerful opportunity

Copyright Ó 2018 by the Association of Bone and Joint Surgeons. Unauthorized reproduction of this article is prohibited. Volume 476, Number 6 Not the Last Word: A Goldwater Rule 1151 Not the Last Word

to convey lessons about injury treatment into the injury and explanation of those made to recreational athletes. and prevention. This opportunity is ramifications with regards to loss of There is often an “artificial deadline” epitomized by today’sshiftingconver- playing time for the athlete, and for the involved in the decision-making be- sation surrounding concussions in con- physician, it offers exposure and per- tween a sports-medicine physician and tact sports. Following increased haps some “tasteful marketing” of their the athlete based on the next important attention to head injuries in the NFL, expertise. By contrast, misstatements date on which the athlete needs to National Hockey League, and other can be harmful to everyone involved compete. Postoperative rehabilitation professional leagues [3, 16, 18], legis- including the athlete. As Dr. Bernstein must be complete before the next sea- lators have imposed contact restrictions points out in his article on the Gold- son begins in order not to affect two in practice and training; leagues have water Rule, this opportunity comes seasons. The commenting physician adopted rule and equipment mod- with responsibilities. The rules he rec- and public may not take this into ac- ifications prioritizing player safety; and ommends represent safe guidelines for count and need to understand that the athletes, parents, and families have been all those sports medicine physicians rationale for all decisions cannot be provided the knowledge to make more who wish to enter this realm and serve understood outside the organization. informed choices on their participation as experts to the public. I also agree with Dr. Bernstein that in these sports [6]. Just as we must not While I agree with these recom- examples from injuries to pro- squander our profession’s authority and mendations, I would note that most of fessional athletes for patient educa- goodwill, we also must not squander these guidelines are already in place in tion are invaluable. Players sitting out this opportunity to educate the public. the American Academy of Orthopae- of important games including the In order to protect the reputation dic Surgeons (AAOS) Expert Witness playoffs serve as a good example for and authority of our profession, there Affirmation Statement [1]. This type of the young athlete whose eagerness to should be some guidelines surrounding activity does not differ much from return must be tempered to allow the physician-commentator’s con- serving as an expert witness in a judi- adequate healing to occur. Every or- tributions to this discussion. Must cial proceeding and the same guide- thopaedic surgeon should keep rele- these guidelines be formal regulations? lines are applicable for both. Although vant stories like these in mind to help Perhaps not, and perhaps to impose sworn testimony seemingly carries with patient and family education. formal regulations would detract from a much greater burden of truth, and It is always good advice to avoid opportunities for healthcare education. false testimony under oath can result in disparagement, be judicious with one’s Instead, these rules can be a standard of much greater penalties, an expert comments, and to give thoughtful etiquette incorporated into the pro- opinion given either in the courtroom insights while admitting one’s igno- fessional conduct curriculum of sports or in the press should be taken equally rance. The Goldwater Rules are a rea- medicine fellowship training, and seriously by the physician. The AAOS sonable codification of this philosophy professional guidelines for the AAOS guidelines begin with the statement: “I in sports medicine. and sports medicine societies. The will always be truthful,” which seems Duncan C. MacCourt JD, MD guidelines presented by Dr. Bernstein to serve well as a first commandment in McLean Hospital in this column offer us exactly that these situations. It is always important Department of Psychiatry, standard, in the form of a framework to emphasize that opinions are given Harvard Medical School for professionalism that we can adopt without complete understanding of the When first reading Dr. Bernstein’s for ourselves and teach to the next specifics of the case in question. The eloquent piece on establishing a “Gold- generation of sports medicine physician should focus on the reported water Rule” forsportsmedicine,Igen- physicians. lesion and statistics regarding progno- erally agreed with it. But as I thought Xavier A. Duralde MD sis and return to play and emphasize further about the rule, I concluded that it Physician and Team Surgeon for that he/she cannot give more specific is too problematic. the Atlanta Braves (1998-2016) opinions based on the exact facts of the When examining any such pro- Peachtree Orthopaedic Clinic case which are not usually available. posed rule from my perch as an aca- Physician commentary on injuries Dr. Bernstein makes several other demic physician and one trained in the to athletes is a desirable activity for good points in this article, one of which law, at least three questions come up: both the physician involved and the is that recommendations made in the (1) Is it legal? (2) Is it practical? And, public. It offers the public an insight sports setting are often different than (3) is it wise? It seems to me that this

Copyright Ó 2018 by the Association of Bone and Joint Surgeons. Unauthorized reproduction of this article is prohibited. 1152 Bernstein Clinical Orthopaedics and Related Research® Not the Last Word

rule—which I will call the “Bernstein apparent in the Bernstein Rule. While I return to play issues and sports-related Rule”—falls short on at least two of can see that there is some wisdom here concussion. Ann Biomed Eng. 2012;40: 106–113. these three criteria. motivating the rule (such as the Hip- ’ fi “ ” 7. Eder S, Philipps D. Donald Trump s draft First, is it legal? On rst glance, one pocratic injunction to do no harm deferments: Four for college, one for bad would agree that a private organization and the corresponding goal of the feet. The Available at: https://www. can regulate the responsibilities of its Bernstein Rule to prevent harm by nytimes.com/2016/08/02/us/politics/donald- members. However, on second glance, unwise comments), do we really want trump-draft-record.html. Accessed March 1, this is not so clear. If violating the to get involved in regulating speech? 2018. 8. Findlaw. United States Supreme Court. Bernstein Rule means an ethics viola- While not all speech is protected, the Ginzburg v Goldwater, 1970. Available tion, one could argue that this is an courts have had a tough time trying to at: http://caselaw.findlaw.com/us-supreme- unconstitutional impingement on free discern wisely the contours of pro- court/396/1049.html. Accessed March 1, speech. The reasoning is that state li- tected and unprotected speech. Why do 2018. censing boards can use ethics viola- we think that it will be any easier for 9. Gersen JS. Will Trump be the death of the tions to deny or revoke medical doctors? Aren’t there enough other Goldwater rule? Available at: https:// www.newyorker.com/news/news-desk/ licenses. Therefore, under the Bern- pressing problems to tackle ethically? will-trump-be-the-death-of-the-goldwater- stein Rule, the state arguably could act (See: The practice of concurrent sur- rule. Accessed March 27, 2018. to restrict or punish the free expression geries in different operating rooms 10. Goff B. The $70 billion fantasy football of opinion. At least one eminent legal supervised by the same surgeon) [14]. market. Available at: https://www.forbes. scholar, Jeannie Suk Gersen DPhil, JD While I do see that there is some wis- com/sites/briangoff/2013/08/20/the-70- billion-fantasy-football-market/#7a6659f of Harvard Law School, has written dom here in Dr. Bernstein’s idea, even 8755c. Accessed March 1, 2018. that she has considered mounting such the Owl of Minerva sometimes 11. Goldwater v Ginzburg, 414 F.2d 324 (2d a First Amendment challenge to the nods off. Cir. 1969). Goldwater Rule [9]. 12. Lee BX. Psychiatrists warn about Second, is it practical? Here, the References Trump’s mental state. Available at: https://www.nytimes.com/2017/11/30/ experience of the American Psychi- 1. American Academy of Orthopaedic Surgeons. Expert witness affirmation opinion/psychiatrists-trump.html. Accessed atric Association (APA) may prove March 1, 2018. instructive. While there have been statement. Available at: https://www. aaos.org/uploadedFiles/PreProduction/ 13. BXLee BX, ed. The Dangerous Case of a few disciplinary actions for violation About/Professional_Compliance/Expert_ Donald Trump: 27 Psychiatrists and of the Goldwater rule over the years, Witness_Program/Expert%20Witness% Mental Health Experts Assess a Presi- the APA eventually abandoned its 20Affirmation%20Statement.1115.pdf. dent. New York, NY: Thomas Dunne Accessed March 19, 2018. Books; 2017. efforts to enforce, given concerns 14. Levin PE, Moon D, Payne DE. Over- about due process [9]. The existence 2. American Psychiatric Association. The principles of medical ethics. Available at: lapping and concurrent surgery: A pro- of the rule did not, in any case, prevent https://www.psychiatry.org/File%20Library/ fessional and ethical analysis. J Bone – the publication of the Dangerous Psychiatrists/Practice/Ethics/principles- Joint Surg Am. 2017;99:2045 2050. Case of Donald Trump.AndasfarasI medical-ethics.pdf. Accessed March 1, 15. National Football League. Hope. https:// know, the distinguished authors of 2018. www.youtube.com/watch?v=AZQO0v ’ PJOIM. Accessed March 17, 2018. that book have suffered no significant 3. Block J. We shouldn t be surprised when NFL players retire early anymore. Avail- 16. National Football League. NFL adopts harm to their careers or professional able at: https://www.huffingtonpost.com/ stricter statement on return-to-play. standing. entry/dbrickashaw-ferguson-nfl-early- Available at: http://nflconcussionlitigation. Finally, is it wise? It is instructive retirement-no-surprise_us_5707c4d5e4b0 com/wp-content/uploads/2012/01/2009- to remember that the original Gold- c4e26a2273fa. Accessed March 19, 2018. NFL-Return-to-Play-copy.pdf.Accessed March 28, 2018. water Rule was in part influenced 4. Bruell A. NFL touts entertainment value of game in new ad campaign. Available 17. New York Times Co. v Sullivan, 376 U.S. by guild pressure from the more- at: https://www.wsj.com/articles/nfl-touts- 254 (1964). conservative AMA after the more-liberal entertainment-value-of-game-in-new-ad- 18. Rosen D. New concussion protocol goes psychiatric community opined on campaign-1504782000. Accessed March into effect tonight. Available at: https:// Senator Goldwater’s mental health. 17, 2018. www.nhl.com/news/new-concussion- Indeed, there are political pressures 5. Curtis Pub. Co. v Butts, 388 U.S. 130 protocol-goes-into-effect-tonight/c-556289. (1967). Accessed March 19, 2018. and policy considerations behind the 6. Doolan AW, Day DD, Maerlender AC, 19. Satel S. Does it take a shrink to evaluate original rule that are not readily Goforth M, Brolinson PG. A review of Trump? Available at: https://www.wsj.

com/articles/does-it-take-a-shrink-to- 21. Smith MD. Jerry Rice: Adrian Peterson is topics/1740/sports-betting/. Accessed evaluate-trump-1516145469. Accessed rushing back too fast, like I did. Available March 1, 2018. March 1, 2018. at: http://profootballtalk.nbcsports.com/ 23. Vatz RE. Questions about Trump’s 20. Scribd. Fact Magazine, Goldwater 1964. 2012/08/13/jerry-rice-adrian-peterson-is- mental health violate ’Goldwater Rule’. Available at: https://www.scribd.com/ rushing-back-too-fast-like-i-did/. Accessed Available at: http://www.baltimoresun. document/322479204/Fact-Magazine- March 1, 2018. com/news/opinion/oped/bs-ed-op-0117- Goldwater-1964. Accessed March 1, 22. Statista. Sports betting – statistics & facts. goldwater-rule-20180116-story.html. 2018. Available at: https://www.statista.com/ Accessed March 1, 2018.