Medical groups complain about potential liability for top athletes
No one likes to be sued. Doctors particularly hate it.
They risk potential liability with every surgical procedure performed. A bad outcome, regardless of cause, can result in a trip by the injured party to a lawyer, for an assessment of whether medical malpractice occurred.
Roughly 20 years ago, widespread efforts occurred to limit potential liability for non-economic damages (pain and suffering primarily) for those who were proven to be victims of negligence by a doctor. But the caps that were placed in some jurisdictions on “general damages” don’t limit the liability for the specific lost income due to malpractice.
That factor becomes particularly relevant to professional athletes, whose careers can be easily derailed by surgical negligence — and who often make a lot of money, especially in comparison to the average citizen.
And so a group of “prominent medical organizations” has made if clear that they are becoming concerned about the issue of the potential litigation risks arising from providing medical care to high-level athletes.
Via Stephania Bell of ESPN.com, the American Orthopaedic Society for Sports Medicine (AOSSM), along with 27 co-signers, has published an open letter contending that “recent and ongoing litigation may have an enormous negative impact on the medical care of competitive and elite athletes.”
“If not now, when?” AOSSM president Dr. Mark Miller told Bell. “We want to raise public awareness that this issue affects the care of all people we take care of. Our ability to serve all of our patients from the playground to the professional level is at risk.”
It’s unclear how the possibility of a major award of damages when, for example, a highly-paid professional athlete gets butchered is relevant to “the care of all people we take care of.” But it sounds pretty good when trying to make it harder for a highly-paid professional athlete to get proper compensation following said butchering.
The lead float in this fresh parade of horribles is the recent $43.5 million verdict secured by former NFL player Chris Maragos. Bell points out, without further explanation, that Maragos “contended in court that the case cost him at least $8.7 million in future NFL earnings, but was awarded five times that in damages.” (There was surely a good reason for this outcome; if there wasn’t one, the defendants’ lawyers will be able to attack the verdict on appeal.)
The New York Giants’ team physician, Dr. Scott Rodeo, complained that liability concerns could make it harder for athletes to get proper care.
“Recent cases may be the tip of the iceberg, and some physicians may decide the visibility associated with caring for athletes may not be worth the liability risk anymore,” Dr. Rodeo told Bell.
In other words, doctors want to be able to use relationships with pro sports teams to attract more business without shouldering the full responsibility of providing the best possible care to the players on those teams. Sorry, Dr. Rodeo, but you can’t have it both ways. If you want to get more patients because your affiliation with the Giants makes the average person think you’re better than the average doctor, you’d better be better than the average doctor.
The lead team physician for the Washington Nationals, Dr. Robin West, said that some younger doctors might consider specializing in other areas of medicine due to the risks associated with treating high-level athletes.
It’s a not-uncommon page from a not-uncommonly used playbook. In the early 2000s, the issue of “tort reform” the medical malpractice focused nationally on OB-GYN physicians who were threatening to leave the specialty over the potential liability costs arising from complications during childbirth.
It all traces to the costs of liability insurance. As the potential financial downside of a malpractice verdict or settlement increases, insurance providers either jack up the premiums to sky-high levels or stop offering the coverage altogether. The potential increases in those insurance expenses will result in some doctors thinking about other areas of practice, in theory.
Some of it is just huffing and puffing, in the hopes of overhyping a problem — and securing some sort of legislative solution that makes it easier to avoid worst-case scenarios. The AOSSM seems to want, perhaps among other things, a higher standard for expert testimony in malpractice cases involving athletes.
“It’s a level of expertise that requires additional training, additional skills and it takes a tremendous commitment,” Dr. Miller told Bell. “In cases that do go to trial, there should be expert testimony that’s on an equal level. That didn’t happen in some of these cases.”
And that speaks directly to another very real dynamic embedded within efforts to achieve malpractice reform. The lawyers who represent the doctors will never admit that a bad verdict was their own fault.
Here’s what happens, in nearly every medical liability case. The lawyer for the injured party finds a doctor who will testify as an “expert witness” that the doctor who has been sued violated the so-called standard of care. The lawyer for the doctor who has been sued will find a doctor who will testify as an expert witness that there was no violation of the standard of care, that a bad outcome happened not because the doctor screwed up in any way.
It then becomes what the lawyers call a battle of the experts. But it’s actually a battle of the lawyers, because it’s for the lawyers through their questioning of the expert witnesses and their closing arguments to persuade the jury that one expert’s testimony should be accepted over the other’s.
Thus, these cases often come down to the skill of the lawyers. But since the lawyers who represent doctors like those who treated Chris Maragos will never admit, for example, that they possibly didn’t do their jobs very well, it’s always someone else’s fault when a verdict goes sideways.
They’ll claim the judge was biased, for example. They’ll say the jury ignored the law. Or, in this specific context, they’ll argue that the expert witness for the plaintiff did not have the appropriate additional training, additional skills, and tremendous commitment to understand what the doctor was dealing with. Rarely, if ever, does the lawyer responsible for losing a massive verdict say, “It probably was my fault.”
Bottom line? The insurance companies that provide coverage to doctors who treat high-end athletes don’t like paying out money for significant settlements and verdicts, regardless of how they happen. So they want to rig things in their favor, by increasing the premiums to the point at which the doctors start threatening to not provide care, in the hopes of forcing Congress or the legislatures in various specific states to make it harder for those who have suffered true harm due to medical negligence to realize true justice.
Players and their agents should be paying attention to this issue. And they should be keeping a list of the doctors who would like to have some artificial external protections for their own professional shortcomings.
If a doctor isn’t willing to stand behind his or her work and accept potential responsibility for his or her mistakes, why should a highly-paid athletes whose livelihood hinges on receiving proper care every trust that doctor to provide it?
Medical groups complain about potential liability for top athletes originally appeared on Pro Football Talk
