Decision Not to Clear Kendall Marshall Driven By Liability Concerns?

By Chris McAndrew, a Junior Journalism/Pre-Law major at Temple University

Hank Gathers tragically died during a 1990 game due to a heart condition. Loyola Marymount University settled for $1.4M. The treating cardiologist paid $1M.

Injuries happen in sports all the time.  Whether it’s a minor sprain or a broken bone, athletes of every sport have to worry whether their bodies are truly healthy enough to handle the physicality of their sport.  Lucky for them, leagues often provide expert trainers, coaches and physicians to ensure their health.  But can their health always be assured?

Many recent serious sports injuries have come from the world of professional soccer.  Fabrice Muamba, a midfielder for Bolton, suffered a cardiac arrest while playing a match and collapsed on the field.  He was rushed to the hospital where doctors had said Muamba had died for 78 minutes then came back.  Luckily, the trainers and physicians on hand were prepared for this severe case; others are not always as lucky.

D. Venkatesh, a midfielder for A-division club Bangalore Mars, also suffered a cardiac arrest on the field while playing, but there was no ambulance on site.  He was taken to the hospital in a three-wheel auto-rickshaw where he later died.

So, what happens when an athlete gets injured on the field?  Is the trainer liable for not keeping up with the athlete’s health?  What if the stadium does not have proper transportation for injured athletes, are they too liable?

To find out, we spoke with Raymond Yasser, Professor of Law at the University of Tulsa College of Law.  Professor Yasser is lead co-author of Sports Law: Cases and Materials, a sports law casebook widely used in law schools around the country.  He has served as plaintiff’s counsel in more than 70 Title IX (gender equality) sports cases, and he has also represented numerous athletes in eligibility disputes.  Yasser teaches torts, sports law, and antitrust law at Tulsa, where he has won numerous teaching awards.

Can sport venues, which are often owned by the city itself, be liable in the death of an athlete for not providing adequate medical equipment or transportation? If so, what laws would be enforced: city, state, or federal?

Sports venues could be potentially liable to injured athletes on a tort theory. Tort law is a creature of state law so there would be local variations but stadium owners are exposed to liability if they fail to take adequate care to provide a reasonably safe environment for athletes (and spectators too for that matter). It strikes me that athletes and spectators are legally speaking “invitees” to whom something akin to a duty of reasonable care is owed. The breach of this duty could arise in a number of different ways; it could come about as a result of a dangerous condition at the playing site. For example, a wall or barrier may be dangerously too close to the playing area. In a separate context, the owner might be negligent for failure to provide adequate emergency services to handle foreseeable injuries. The careless transportation of an injured person raises the specter of liability. If the owner is a governmental entity, immunity issues arise which might place additional obstacles in the way of the injured person. The complex immunity rules vary from state to state and make about as much sense as the rules governing the conjugation of irregular verbs in French, and in the professional team sports setting, these liability issues might be further complicated by collective bargaining agreements and union rules.

All players must receive a physical exam before playing any sport. Are sport physicians liable for not catching any serious condition before the athlete begins playing and gets seriously injured?

Professor Raymond Yasser

Physicians could be exposed to malpractice liability for a negligent diagnosis or for a negligent failure to discern a dangerous preexisting condition. By way of illustration, Bill Walton claimed in a law suit that his career was prematurely ended by the negligent failure of the Portland team physician to diagnose his stress fracture. (My recollection is that the case was confidentially settled.) In a case of more recent vintage, the parents of a Rice University football player who died from over-exertion exacerbated by undiagnosed sickle cell anemia succeeded in making sickle cell testing part of the standard physical exam for at risk athletes.

What are the legal implications of a trainer or sport physician who gives consent for a return-to-play and the athlete gets severely injured?

Athletes typically want to play and in their competitive zeal, they often deny being injured or are not entirely truthful about the nature and scope of the injury. The decision to “clear” an athlete to play is wrought with risk. In recent days, we have seen this issue most clearly in the context of returning to play post-concussion. But the issue is an age-old one. It strikes me that the times they are a changin’ and that there is an increased awareness about this problem. While I was disappointed that UNC was not at full strength against Kansas, the decision not to clear Kendall Marshall after he broke his wrist struck me as one that was properly driven at least in part by liability concerns.

Would liability issues differ if the examining doctor is a team employee, a league employee, or a private physician?  If the examining doctor is a team or league employee, would respondeat superior take any affect on the liability issue?

The principal of respondeat superior makes the employer liable for torts of employees committed within the scope of employment. A question arises in the medical context as to whether a team doctor is an employee of the club or school (in which case the club or school would be liable along with the physician for torts committed) or whether the doctor is an “independent contractor” (in which case imposing liability upon the club or school is a bit more difficult). This problem actually arose in Walton’s suit. In the professional sports setting, this already difficult issue is further complicated by collective bargaining agreements and union rules which in modern times increasingly attempt to address liability issues? Let it be said that clear answers here are hard to come by.

Can an athletic trainer or sport physician always claim “assumption of risk” in a player’s injury that they have cleared?

For assumption of risk to operate as a bar to recovery, it must be both voluntary and knowing. This can be very tricky. If Kendall Marshall played and suffered a career ending injury to his already broken wrist, could it be said that his decision to play was voluntary and knowing? I’m not sure. This too is a recurring problem posing difficult issues. But I think it is fair to say that while trainers and physicians will often claim assumption of risk to defend against claims of injured athletes who have been “cleared”, the viability of the assumption of risk claim will ultimately turn upon the determination of whether in fact the athlete acted in a truly knowing and voluntary way.

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