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Helen Millson( M.Phil. Sports Physio. UCT; M.C.S.P)

Medico-Legal Ethical Issues

in Sports Medicine

SA Sports Physio Congress: Aug 2015

SEM: “Specialists or Snake oil Salesmen” Franklyn –Miller, Etherington and McCrory, BJSM 2011

Background

“Ethical Practice and Sports Physician Protection: A Proposal”

Holm, McNamee, Pigozzi; BJSM Dec 2011

Dunn et al., AJSM 2007; (Physicians – appropriate Indemnity); Sports Medicine and Ethics. Testoni et al.,

Am J Bioeth.2013; Marsan et al., Am J Bioeth 2013; Sailors et al., Am J Bioeth. 2013; Greenbaum Am J Bioethics 2013

Background

2. Medico-Legal Ethical Issues

3. Legal Implications

4. Case Studies

6. Overview

Contents

1. Background

“High Performance Sports Medicine : An Ancient but evolving field” Speed and Jaques, BJSM 2011

5. Important Issues

Edwards and McNamee, Health Care Annal, 2006; Anderson BJSM. 2009

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Premier League Football

Title Comment Author

“Specialists or Snake oil

Salesmen” plus:

IOC Consensus paper on the use of

PRP in Sports medicine

Synthetic membranes; Biological

scaffolds; PRP; Stem cells

Caution in the use of PRP.

Need more work on the basic science.

Banned 2010. Lifted 2011

Are they willing to use unproven, untested forms of Rx to

claim being on the “cutting edge or for financial gain?

Franklyn –Miller et al., BJSM

2011 PLUS:

Engebretsen et al., BJSM

2010

Wojtys, Sports Health,

AJSM. 2012

Ethical practice and sports physician

protection: A proposal

Holm et al., BJSM 2011

High Performance Sports Medicine : An

Ancient but evolving field”

Speed and Jaques, BJSM

2011

Suggestions for Ethical Conduct Sports Medicine Fellowship programmes should include

an ethics component dealing with the conflict-of-interest

Greenfield and West, Sports

Health 2012

Ethical Issues in Sports Medicine. A

Review and justification for Ethical

Decision making and Reasoning

The multiple stakeholders in sports teams challenge the

traditional notion of confidentiality and autonomy.

Greenfield et al., Sports

Health 2012

The dimensions of responsibility of the

Team Physician

Long term health? Murthy et al., Ethics in Sports

Med. 2013

Practical response to Confidentiality

Dilemmas in Elite Sports Medicine.

Revise CPD provision to enhance ethical standards of

Sports Medicine and Sports Physiotherapy

Malcolm and Scott. BJSM

2013

Organised Crime and Drugs in Sports: Did they teach us about that at Medical school? David Hughes, BJSM 2013

Would they dope? Revising the

Goldman dilemma.

Clinicians need to be aware that a group of elite athletes

prioritise winning over health and legality

Connor et al., BJSM 2013

Action in the Event: Medico-Legal

Issues facing the Volunteer Event

Physician / Clinician

- Only volunteer for activities within their field of expertise.

- Know and follow the laws in different provinces.

- Clinicians should take notes on all asses and Rx

Ross et al, Sports Health Aug

2013.

Can travelling team Physician practice

in your state?; Team physician

challenge in 2013

Dealing with media and travelling across borders Viola et al., BJSM 2012;

Olsen D. BJSM 2013

Many Studies on this topic

2. Medico-Legal Ethical Issues

a. Conflicts of Interest

b. Duty of Care

c. Informed Consent

d. Confidentiality

e. Medico Legal Records

f. Rehabilitation and Return to Play Criteria

Salomon Occupmed, 2002; Matthias. Clin Sports Med 2004; R Johnson Clin Sports Med 2004; Bernstein et al., Clin Orthp Relat

Res. 2004; Dunn et al., AJSM 2007; Devitt and McCarthy. BJSM 2010; Holm et al., BJSM Dec 2011; Murthy et al., Ethics in

Sports Med. New York J for Jt Diseases. 2012; Goldberg. J Paediat Orthop.2012; APTA 2013; APA 2013

2a. Conflict of Interest

Is the duty owed to the injured player?

Is the duty owed to the player’s employer i.e. the club?

Medical Legal Implications

Mitten and Mitten 1995; Polsky. J Contemp Health Law Policy. 1998; Waddington 2002; 2006; Anderson 2008;

Team Physician Consensus Statement: 2013 Update. Herring et al., Medicine & Science in Sp & Exc. 2013

Company’s

interest economic and shorter-term

Player’s

interest also economic plus

individual success and fulfilment

Player’s

interest ought to be long-term

and in the best interests of health

Medical team

Interest has to be “in best interests

of patient” which must mean health

(rather than financial) interests and

must mean long term

Club – Player – Medic differences

Ethical Issues concerning NZ sports Doctors. (Andersen and Gerrard, J Med Ethics, 2005)

Rugby injuries: liability of the club or college or school. (Samuels A, Med Leg J. 2003 )

Potential conflicts can arise when:

• Player does not want to return to play and the resultant

risk of exacerbating a pre-existing injury.

• Player wants to return to play too soon after being injured

• Medical Team do not want the player to return to play

Is it safe to use local anaesthetic painkilling injections in professional football? Orchard JW, Sports Med. 2004;

“Writing a new code of ethics” Anderson, BJSM 2009;

• Employer/ Coach wants a player to resume duty too soon

after being injured

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Sports Health 2012

“Adding insult to injury: workplace injury in English professional football.”

Roderick, Sociol Health Illn 2006; Ethics in Sports Medicine. Dun et al., ASM 2007

2b. Duty of Care

• Your contractual duties may include duties to protect

economic and business interests of employer.

• Be very aware of the ethical side.

Medical Legal Implications

Medicolegal issues affecting sports medicine practitioners. Pears et al, Clin Orthop Relat Res. 2005; Sexual harassment

and abuse in sports. Marks et al., BJSM 2011; Bullard et al., BMJ 2013

- What has the player agreed to in his contract?

Contracts with Clubs

Holm, McNamee and Pigozzi, BJSM Dec 2011

Amateur vs Professional?

Cricket - EP

Rugby

SA Surf-lifesaving

- What is written in your contract?

AA Games

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Clarity

Duty of Care

• The current duty of care owed by practitioners to player –

issues of consent in the business setting.

Mary O’Rourke, Barrister; Batt and Jaques, BJSM 2011

• Note: Player may years later deny fully understood

implications and no real consent

Therefore: NOTES

b) Test for capacity to consent e.g. Language

a) Consent to Examination and Rx

Note: Consent required EVERY time Rx.

2c. Informed Consent

“The origin of Informed Consent” Malliardi, Acta Otorhinolaryngol, 2005; Delany 2005 CSP Elsiever;

Younger than 16 yrs old...............Consent and clinical info

from the parent/guardian

16-17yrs old........................ Consent from parent / guardian,

clinical info from patient.

18ys old and older............Consent and Clinical info from patient.

Youth

All of the above - written consent required.

• If you speak to another professional make notes accordingly.

2d. Confidentiality

“Mx of Medical confidentiality in English professional football clubs: some ethical problems and issues.” Waddington and Roderick,

BJSM, 2002; Martinsen et al., BJSM 2009; McNamee and Phillips BJSM 2011; Malcolm and Scott, BJSM 2013; Autobiographical

research and non disclosure. Mellick and Fleming, ESSCO Electronic J Services Jan 2014.

• Consent required if adult, and disclosure of confidential

information to any third party.

• Information sharing between health professionals

Confidentiality

Who has a right to know of the advice given to a player?

BIOKINETICIAN

NUTRIONIST

MASSEUR

PODIATRIST

SPORTS VISIONPHYSIO

DOCTOR

SPECIALIST(orthopaedicsurgeon)

PSYCHOLOGIST

Sports Medical Team

Coach

Player

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Interaction….Ethics

Sports Health AJSM, 2012

Issues:

How much Information should be given?

Psychological problems, social , financial problems,

other health problems e.g. aids, malingering, drugs

Patricios and Collins Pre Participation Screening and Ethics 2010

X X XNote the patient at risk with STD / HIV+ / AIDS or similar, that

may result in the employer not renewing contract.

Medico-legal aspects of doping in football. Graf-Baumann T, BrJSM. 2006;Mary O’ Rourke,Barrister

Epidemiology of hepatitis B among professional male athletes in Qatar. Hamilton et al., Saudi Med 2010

Record that information has been provided.

Notes Notes Notes

Sufficient information to consider both the Benefits

and the Risks of Rx.

How much Information should be given?

“Confidentiality, Disclosure and Doping in Sports Medicine” McNamee and Phillips. BJSM 2009

Exceptions to the Rule against disclosure.

- Disclosure to police etc - prevent Harm / Crime.

Ribbans et al., Sports medicine- Confidentiality and the press. BJSM 2013

Athletes' education as to their rights as patients and to sports

medicine professionals as to their obligations are urgently

required.

The Press

Transparent exit criteria

************* 2e. Medico Legal Records:

Auditable record of notes which can be reviewed

in future (+ on confidential database)

An auditable record of injured patient’s rehabilitation

process (+ on confidential database)

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In civil proceedings / in the event of a claim these will be

the main plank of the defence

NOTES NOTES NOTES!!!!!

THE IMPORTANCE OF MEDICAL RECORDS

GOOD NOTES: GOOD DEFENCE

POOR NOTES: POOR DEFENCE

NO NOTES: NO DEFENCE

Barbara Anthony - Solicitor

Design and Implement Return to Fitness / Play strategies

2f. Rehabilitation and Return to Play Criteria

N.N.B. If patient decides to go against your advice….

Sign waiver of consent.

Employer / Manager / Medical team / Player:

Different time frames.

Soooooooooooo....................

Be Objective Make notes

Sudden Cardiac death: ethical considerations in return to play. Piantanida et al., Curr Sports Med Rep, 2004

All work together

TeamEthical Issues

Return to Play - Cardiac

Sudden Cardiac Death: Ethical Considerations in RTP -Piantanida et al Curr Sp Med Rep 2004;

RTP Decisions in athletes with Cardiac conditions. Piantan andLawless Physio Sportsmed 2009;

Making prudent recommendations for RTP in adult athletes with Cardiac conditions.Oliveira and Lawless 2011

Medical Legal Ethical Issues

BJSM 2012

BJSM 2012

BJSM 2014

BJSM 2014

Medical Legal Ethical Issues

Basavarajaiah et al., J of American College of Cardiology. (ETHNICITY) 2008; Madsen et al., BJSM 2012; Kahn BJSM 2012;

Johnson et al BJSM 2012; Drezner et al., BJSM 2012, 2013; Schmid et al., BJSM 2013; Dvorak et al., BJSM 2013

Oliveira and Lawless Mar-pr 2011;Piantan andLawless Physio Sportsmed 2009;Piantanida et al Curr Sp Med Rep 2004;

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Hamed, who was 17 suffered a cardiac arrest playing a match

just three days after signing with Tottenham Hotspurs FC in

2006.

Sustained catastrophic brain damage.

Tottenham = 70 per cent liable

Cardiologist = 30 per cent liable

Had an MRI: obvious features of hypertrophic cardiomyopathy (HCM) - the condition that ultimately led

to his collapse - but Dr Mills wrote to Spurs saying HCM could not be excluded on these findings alone.

Adequate facilities for treatment and procedures

Physician / Clinician should participate in planning the event

– proper facilities, equipment and supplies and accessibility

for ambulances

Physician must activate the emergency medical system when

indicated.

Cardiac

Ethics of pre-participation cardiovascular screening

for athletes Maron et al. Nat. Rev. Cardiol. February 2015

An ethical dilemma:

Raises the important public-health issue of whether young

individuals should be arbitrarily excluded from potentially

lifesaving clinical screening evaluations because they do not

engage in competitive sports programmes • Player not best placed to make own decision because of

condition so duty to advise management he must be

removed.

Head Injuries

Echemendia et al., BJSM. 2009; Mary O’ Rourke, Barrister. 2011; Putukian et al., Onfield assessment of concussion in the adult

athlete. BJSM 2013; Harmon et al., American Society for Sports Medicine Position statement: Concussion in Sport. BJSM 2013

• Medical decision whether to return player to field of play.

• Pressure of touchline decision.

• Courts and professional bodies will be unforgiving of any

interference from non-medical person (e.g. manager).

Medico-Legal Ethical Issues

RTP

Lloris Concussion - Nov 2013Tottenham vs Everton

Do the Premier League have a say?

Yes. Premier League Rule O.9 states: ‘Any player having sustained a head injury shall not be allowed to resume playing until he has been examined by a medical practitioner and

declared fit.’

If the player is substituted, he should not play for five days. Clubs also have to have a doctor on the bench who has completed a training course on dealing with head injuries.

And what do FIFA think?

FIFA rules state that anyone with concussion should leave the field immediately and be assessed urgently by a medic.

Can you be knocked unconscious but not have concussion?

Yes. Concussion is only when there is internal damage. Someone with concussion might be confused or have blurry vision. Some people return to consciousness without those

symptoms.

Strict laws in other sports

RUGBY UNION

There is huge controversy over the IRB’s Pitchside Suspected Concussion Assessment (PSCA), which can allow players to play five minutes after a test. Previously, a player

suspected of suffering from concussion had to leave the pitch and take a week off. A PSCA can be called by the referee after a head injury; a replacement is brought on. The test

consists of orientation questions and balance observation. If he passes, he plays. Critics say it is too easily passed.

RUGBY LEAGUE

Super League rules state that players with suspected concussion should leave play and not return until a cognitive test with a deck of cards is passed. This can be a day, or weeks.

BOXING

After any knockout blow, referees must halt fights and signal for the doctor. If airway/neck checks prove clear, a boxer may sit up, but if not, they are given a neck brace and taken to

hospital on a stretcher. Pre-bout, boxers are quizzed for latent effects from old concussions.

AMERICAN FOOTBALL

In August, the sport’s chiefs reached a $765million (£480m) settlement over brain injuries among its 18,000 retired players. Now, independent neuro-trauma NFL consultants are

pitchside to judge if a player should have the X2 Bio concussion test, which compares cognitive functioning against a baseline level.

Villas-Boas said:

“The medical department was giving me signs that the player couldn’t

carry on because he couldn’t remember where he was.

Hugo still doesn’t remember the impact but he was quite focused and

quite determined to continue. When you see this kind of assertiveness

from the player it means that he is able to carry on. It was my call to

delay the substitution. From my knowledge of football he seemed OK

to continue.”

USA: The National Football League has agreed to pay up to $914m to settle litigation brought by former players over HEAD INJURIES suffered during their time in the league

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Whose decision is it?

Legal responsibilities of physicians when making participation decisions in athletes with cardiac disorders:

Do guidelines provide a solid legal footing? Nicole M Panhuyzen-Goedkoop. BJSM 2013

Do not Rx ongoing if you are:

a) not sure of the diagnosis (a provisional diagnosis is good

to a point.)

b) the player is not improving after ? treatments.

Points to consider:

Always, always Refer if needed.

(especially if there is a Red Flag, unknown diagnosis etc)

“Limits of Competence”

“If treat beyond competence and cause injury can be liable

to player at common law (tort)”

Sports medicine in the Netherlands Bruijn et al., J of Sp Med 2013

• Need to be able to justify (in civil proceedings and

professionally) that responsible body of similar discipline

practitioners would have done the same (“peer judgment”)

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• Duty not to harm player

• Professional duty will condemn if proactive treatment which is

not in best (long-term) interests of patient regardless of consent

3. Legal implications:

“Limits of Competence”

6. Innovative technology

7. Club Transfer

8. Caster Semenya

9. Bloodgate scandal

1. Volunteers

3. Anti-doping

4. Medication

5) Medico Legal Ethics: Important Issues

2. Field side Care

5. Alternative medicine

Breaches can lead to charges of professional misconduct.

Medical-Legal Issues

Your ethical duty is ALWAYS to the patient.

ConclusionDo not abdicate your responsibility to the individual player!