Athletes and Medical Malpractice

[Guest guest]

There has been a substantial rise in the significance in the malpractice

lawsuit arena of athletes being the complaintants in the cases and given the

economic value of an athlete's career and their dependence on top flight

physical condition to perform in their work roles, the financial value of the

individual cases can be very large. Here are some recent articles and other

materials related to this growing segment of malpractice law. Issues range

from physician incompetence to that of physicians with many years of

experience being forced to quit sports medicine practice due to huge

malpractice insurance costs.

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THE SPORT OF DOCTORING

It's proving to be big business to let the public know you're treating

big-time athletes

Mark Fainaru-Wada & Ulysses Torassa,

Chronicle Staff Writers

<http://www.sfgate.com/cgi-bin/article.cgi?f=/chronicle/archive/2002/12/30/SP1

3817.DTL>

<http://www.plastic.com/article.html?sid=03/01/02/03012614>

" When you entered podiatrist Dr. Carver's San Francisco office, you

were hit right between the eyes with the evidence that this was one

successful and competent doctor. Right up on the wall were the autographed

pictures of Joe Montana and a slew of other San Francisco 49ers, Latrell

Sprewell (in his SF Warrior days), Andre Agassi, and a raft of other

professional athletes for whom having healthy feet mean the difference

between a sports career and something else, " MAYORBOB writes. " So, you say to

yourself: 'If all these pros can rely upon the good doctor, so can I.' And,

for a number of regular, non-sports hero, Joes that worked as Dr. Carver

managed to develop a thriving practice. But the the San Francisco Chronicle

offers a cautionary tale about appearances being deceptive and, when it comes

to picking your doctor, it's definitely a case of caveat emptor, baby........

And if some patients didn't know Carver's ties to the athletes were limited,

many also never learned he had amassed an inordinate string of medical

malpractice suits, was the subject of more than a dozen (now 22) complaints

to the state Medical Board and left at least two medical facilities because

of problems related to maintaining malpractice insurance or incomplete

reporting of his litigation history.

Carver also currently is under investigation by the Medical Board, which,

according to a state source familiar with the inquiry, is looking into a

quality-of-care case and allegations he falsified malpractice insurance

documents and lied about his record of lawsuits.

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Jets lineman to appeal court ruling

By ALLAN MAKI

Monday, Dec 30, 2002 Page S2

<http://www.globeandmail.com/servlet/ArticleNews/PEstory/TGAM/

20021230/SFOCA/sports/sports/sportsFootballHeadline_temp/3/3/18/>

Canadian Greg Lotysz may have lost one legal skirmish, but the battle to be

heard is not over for the former National Football League offensive lineman

who can barely walk after knee surgery gone bad.

Lotysz, from Thunder Bay, Ont., was informed late last week that his

malpractice suit against two team doctors with the New York Jets had been

dismissed by a New York State Supreme Court judge. The judge ruled the

doctors are team employees and cannot be sued under the state's workman's

compensation law.

Lotysz, 28, suffered torn ligaments in his left knee during a Jets' practice

on July 15, 2000. After the initial surgery, it was discovered the knee had

become infected. Lotysz, who was close to starting for the Jets as a

6-foot-6, 310-pound offensive tackle, underwent several operations but is now

permanently disabled.

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Monday October 21

Canadian doctors group drops pro sports physicians from malpractice coverage

By STEVE MACLEOD

<http://ca.news.yahoo.com/021021/6/pq5k.html>

HALIFAX (CP) - Doctors who treat Canada's top professional athletes are about

to lose malpractice protection over the spectre of multimillion-dollar

lawsuits caused by rising sports salaries.

The Canadian Medical Protective Association, which represents 62,000

physicians across the country, has told its members it will no longer provide

coverage for those who work for NHL, NBA, NFL and Major League Baseball

teams. " Even unknown athletes and retired athletes are receiving financial

awards and settlements of $3 million to $5 million US, " the association said

in a letter sent this month to doctors.

The association said a recent review of medical legal actions in pro sports

in the United States reveals " an alarming trend of increasingly expensive

actions against physicians providing care to professional athletes.

" As an increasing number of professional athletes are signing lucrative

financial contracts, potential legal actions arising from the care of

high-profile athletes could result in settlements or court awards easily

exceeding $50 million US. "

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PROFESSIONAL ISSUES

Philadelphia Flyers hockey player sues team, doctor over care of injury

Ex-NHL star, team will square off in a rare medical malpractice case against

the team physician.

By Albert, AMNews staff. May 20, 2002.

<http://www.ama-assn.org/sci-pubs/amnews/pick_02/prse0520.htm>

A professional hockey player is taking his former team physician and the

team's owners to court, accusing the doctor of medical malpractice and the

team and the doctor of fraud.

Dave Babych, who played with the Philadelphia Flyers in the late 1990s,

claims that the team physician in April 1998 told him his foot injury was

" more of a bone bruise than a broken bone, so it could heal on its own, "

according to court documents.

About 10 days later, he said, he got an injection in his foot, laced up his

skates and went out on the ice before the season's first playoff game. But he

still felt pain, so he went back to the locker room and removed his skate.

He told the coach he couldn't skate even with the injections. According to

the court documents, Babych said team physician Arthur Bartolozzi, MD, an

orthopedic surgeon, suggested another injection so he wouldn't be able to

feel his foot during the game.

<snip>

In his lawsuit, the former NHL player claims the decision to let him play

led to a career-ending injury.

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Commentary

L. Herbert, JD Preparticipation Cardiovascular Screening: Toward a

National Standard

THE PHYSICIAN AND SPORTSMEDICINE - Vol 25 - No. 3 - Mar 97

<http://www.physsportsmed.com/issues/1997/03mar/herbert.htm>

Although the panel's statement characterizes itself as " recommendations " and

not a " requirement, " it has clear medicolegal significance that may not have

been intended. The recommendations could be used in litigation as a benchmark

with which to compare and evaluate medical conduct. Through expert testimony

in medical malpractice cases, the statement could become rather strong

evidentiary support for a particular medical standard of care. Consequently,

the AHA document, along with related recommendations such as those of the

26th Bethesda Conference (4), is important for both patients and physicians.

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By Fisher Team doctors feel push to quit

THE WASHINGTON TIMES

<http://www.washtimes.com/national/20021111-6373612.htm>

Bishop almost quit his high-profile post as team physician for the

Atlanta Falcons this summer after a decade on the job. Dr. Bishop held a

position that thousands of doctors covet, but he wasn't happy, just

frustrated, angry and confused.

What nearly drove Dr. Bishop out of the game wasn't the modern-day player,

the working hours or his relationship with Falcons ownership. It was

insurance.

Malpractice insurance is soaring in cost for every segment of medicine,

particularly for physicians who treat professional and major college

athletes. A nasty combination of rising salaries for pro athletes, a sharp

rise in the number of successful malpractice lawsuits filed by current and

former players, and an overall tightening of the insurance industry have sent

premiums skyrocketing and some doctors out of the field.

Many physicians who treat pro athletes paid a relatively manageable $50,000

or less per year for malpractice insurance not long ago. They now find those

rates soaring to $200,000 per year and beyond.

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L. Herbert, JD Practice Guidelines take Center Court

THE PHYSICIAN & SPORTSMEDICINE - Vol 24 - No. 3 - Mar 96

<http://www.physsportsmed.com/issues/1996/03_96/herbert.htm>

To determine how practice guidelines are used in malpractice litigation,

researchers from three institutions recently surveyed nearly 1,000 attorneys

who prosecute medical malpractice claims. Researchers also reviewed 259

malpractice claim files from two insurance companies. In analyzing the

results of their survey and review, they determined that:

Attorneys and medical malpractice insurers currently make only moderate use

of practice guidelines in malpractice lawsuits.

Attorneys believe that the use of practice guidelines for litigation purposes

is increasing.

Practice guidelines are used both to attack (inclupate) physicians' conduct

and to protect (exculpate) physicians from malpractice claims.

Practice guidelines are more frequently used to attack physicians than to

defend them.

The use of practice guidelines to defend physicians' actions reduces the

propensity of malpractice attorneys to file suits or to pursue claims.

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And here are some published articles in this subject area:

Torts-- Negligent Misrepresentation--High School Guidance Counselors Can be

Held Liable When Their Erroneous Advice Prevents a Student-athlete from

Obtaining an Athletic Scholarship--Sain v. Cedar Rapids Community School

District, 626 N.W.2d 115 (Iowa 2001).

Author: , C.

Source: Seton Hall Journal of Sport Law v. 12 no2 2002 p. 311-31

Team physicians and competitive athletes: allocating legal responsibility

for athletic injuries.

Author: Mitten, J.

Source: University of Pittsburgh Law Review v. 55 Fall 1993 p. 129-69

Ex-Chicago Bear Blaylock awarded $3.85 million in claim that

surgery ended his career

Author: Anonymous Source: Jet v. 97 no. 5 January 10, 2000 p. 49-50

Ex-Chicago Bears receiver Ron gets $5.2 mil. in malpractice lawsuit

Author: Anonymous Source: Jet v. 87 no. 22 April 10, 1995 p. 49

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Sincerely,

Dillard

Temple University

jwne@...