SBJ/June 21 - 27, 2004/SBJ In Depth

Team doctors rattled by threat of malpractice suits

High-salaried players such as Atlanta’s Michael Vick make malpractice insurance providers nervous about offering coverage to team doctors.

As the calendar pages turned and Michael Vick remained on the sideline, recuperating from a broken leg that would keep him out of the Atlanta Falcons’ first 11 games last season, the orthopedist who treated him wondered whether he’d stayed in sports for one season too many.

Dr. Andrew Bishop had come close to giving up his gig as the Falcons’ team physician in the months leading up to the 2002 season. Unable to secure enough malpractice insurance to cover his liability if a highly paid player ever sued him and won, Bishop had decided that the kick he got treating elite athletes was outweighed by the financial ruin he faced if one ever convinced a jury he had made a life-altering mistake.

At training camp that summer, Bishop tendered his letter of resignation, only to be persuaded to stay when the Falcons offered to purchase insurance that increased his liability limits.

Now, barely one year later, here he was, treating a franchise quarterback who was less than halfway through a six-year, $62 million contract.

Though Vick said he trusted Bishop implicitly, going so far as to decline Bishop’s suggestion that he seek a second opinion, the doctor knew that a mistake — or something a jury might perceive as a mistake — in the care of a 23-year-old, $62 million body would blow through his coverage.

“I lost 10 years off my life with all the worrying I did [last season],” said Bishop, who practices in a state in which traditional malpractice insurance covers him for only $2 million. “Injuries happen and we treat them. It’s what we do. But if something had happened that threatened his career, if he had come back and played and hurt that ankle again, whether it had anything to do with what I did or didn’t do, it could have been disastrous.

“You can’t purchase enough coverage to protect yourself from that.”

It is a concern that has touched physicians across sports.

Canadian teams in the NHL, the NBA and Major League Baseball were sent scrambling for coverage when that country’s doctor-managed national malpractice fund dropped team physicians last year. Some doctors fear that was a precursor to similar, blanket actions by private providers in the United States.

As annual salaries have escalated across the major sports leagues — and juries delivered a few seven-figure judgments against team doctors — insurance carriers have become less willing to cover doctors who work with teams.

Though only a handful have given up their team roles as a result of the pressure, many doctors agree that if costs and risk continue to escalate, it’s only a matter of time before they are forced out.

“What I think is going to happen is if it becomes onerous to this large group of guys, they’re going to say, ‘You know what, I have a great practice; why am I going to torture myself?’” said Dr. Jim Bradley, the Pittsburgh Steelers’ team doctor and president of the NFL Team Physicians Society. “Why do I stay with this? When that happens, who is going to do it?

“You throw somebody new into this and it’s a daunting task.”

Not surprisingly, worries have taken deepest root in the NFL, where career-threatening injuries are more common and less than 60 percent of all salary is guaranteed.

NFL team physicians, league executives and players union representatives have been examining the problem for nearly two years. While reporting increased optimism about a solution, they haven’t found one. Their greatest progress has come in the gathering of data that they hope will convince insurers that their risk isn’t as daunting as it might seem because they are rarely sued.

Player injuries
League No. of player injuries Games missed
MLB (2003) 414 22,439
NBA (2002-03) 361 6,770
NHL (2002-03) NA 4,463
Note: Current information for NFL and MLS players was not available. According to NFL Injury Surveillance System data, the NFL averaged 756 player injuries each year from 1989 to 2001.
Sources: The leagues
“I think that as most things happen, it often takes a crisis for there to be resolution,” said Dr. Elliot Pellman, a New York Jets team doctor who serves as medical liaison to the NFL and Major League Baseball. “And, in some respects, there may be a crisis brewing here. If it continues in the direction it is going, the pool of physicians available to take care of sports teams will diminish. When you reduce that pool, the clubs are no longer getting the best quality of care that they can get.

“That’s not good for anybody. That’s my fear.”

While Pellman said he believes the league will find a solution, his faith was rattled recently when he learned that one NFL team, which he declined to identify, had been informed that the neurologists in its city no longer will treat players, citing fear of liability.

“That, to me, is a signal that things are going the wrong way,” Pellman said, “because these things tend to work their way into a storm.”

Pellman is not alone in his diagnosis.

“It has already reached crisis proportions,” said Jim Godes, a labor and health-care attorney who has counseled pro teams and the doctors who work with them. “The coverage that is available is becoming prohibitively expensive, and that’s a cost that’s generally borne by the physicians. They have to balance the benefits against these increasing burdens, and it doesn’t balance out any more.

“It’s gotten so bad that the problem is not the expense. It’s getting the coverage at all.”

Marketing medicine

Doctors and their advocates have argued for years that malpractice awards and the resulting rise in insurance costs have put their business in crisis. Some states have responded with tort reforms that cap the amount that juries can award for pain and suffering.

But those reforms do not address the greatest risk for doctors who deal with pro athletes — the possibility that a surgeon’s misstep or a physician’s mistaken diagnosis might cut short the career of a player who is paid millions of dollars a year. Awards based on lost earning potential are not capped.

“Unfortunately, when you take care of professional athletes, the economic loss they face is staggering; so staggering that you can’t get coverage for it,” Bradley said. “The physicians are caught in the middle. How can you protect your family and at the same time give cutting-edge, aggressive care to these guys who want to play at all costs?”

Clearly, there are those who believe you can.

Even as many doctors who operate solo or small private practices complain that they no longer can afford to treat pro athletes, hospitals and larger sports-focused medical centers are lining up to pay for the right to provide care for teams.

More than 85 percent of MLB, NFL, NBA, NHL and MLS teams have an “official health-care provider.” Of those teams, three-fourths have a relationship in which the hospital is a sponsor as well as an exclusive provider, and/or the team doctor is on the hospital staff or has offices at that hospital.

Turnkey Sports Poll
The following are results from the Turnkey Sports Poll taken in May. The survey covered about 400 senior-level sports industry executives spanning professional and college sports.
In your opinion, does a sports medicine facility’s sponsorship of a sports team or athletic department effectively drive consumers to the facility?
Yes
62.83%
No
30.89%
No response
6.28%
Source: Turnkey Sports in conjunction with SportsBusiness Journal. Turnkey specializes in instant fan feedback (FanTrak) and custom market research for sports and entertainment.
Visit www.turnkeysports.com.
Some hospitals offer free or discounted care in exchange for the sponsorship category. Others try to distance their sponsorship contract from their medical contract.

Though Bradley points out that the NFL physicians society, the league and the players association all have opposed joint medical and sponsorship agreements, citing an appearance of conflict, most teams continue to maintain them.

Dr. John Bergfeld, who is in his 26th season taking care of the Cleveland Browns, practices under the umbrella of Cleveland Clinic Sports Health, a nationally acclaimed facility that provides care for the Browns, Indians and Cavaliers, and has marketing agreements with all three.

“Marketing is a way of life now, unfortunately, in medicine,” said Bergfeld, who carries the title of senior director of Cleveland Clinic Sports Health. “It’s just the way it is. You have to be modern.

“The clinic likes the marketing and the publicity, so they’re willing to take that risk for me. But the guys in private practice have a real stress for malpractice. The private guy, unless he’s interested in the marketing, he can’t compete.”

Doctors say larger health-care facilities are less susceptible to the pressures of insurers because many of them self-insure. They tolerate the increased risk because they believe that advertising their association with sports teams is one of the most effective ways of bringing in business.

Private practice doctors who are teetering on the edge of an exit suggest that even the large shops might lose their tolerance if they were bitten by a $10 million verdict.

“If one gets sued and is found to be guilty, and that institution takes a severe hit, I would be shocked if the institution did not pull the plug,” Pellman said.

Bending the rules?

Some lawyers say the safest remedy for the medical system is for teams to bring their health-care system in-house, hiring team doctors as employees.

Most states prohibit employees from suing each other to recoup losses sustained as the result of an injury at work. Instead, claims are consigned to the workers’ compensation system. State workers’ comp statutes typically allow permanently disabled workers to receive no more than the state’s average weekly wage, rather than the wage they were making when they were hurt.

As the theory goes, if the athlete and the doctor are both employees, the athlete can’t sue the doctor for malpractice.

“You’re not going to find malpractice issues in a workers’ comp setting,” said Godes, the lawyer who counsels teams and their doctors. “If you can bring physicians in under that umbrella, you’ve won the game.”

That strategy has protected teams in several recent cases.

Partnering with sports
Some of the nation’s largest sports medical providers have significant portfolios among U.S.-based teams in MLB, NBA, NFL, NHL and MLS. Canadian teams do not have exclusive health-care providers or team sponsors.
Click here for chart
In October, a New York appellate court ruled that former New York Jets lineman Greg Lotysz could not proceed with a $10 million claim that accused team doctors of malpractice in connection with a post-surgical infection that ended his playing career. A panel of five judges found that the doctors could not be sued because they were team employees.

Minnesota courts dismissed all claims against the Minnesota Vikings in connection with the heat-stroke death of Pro Bowl lineman Korey Stringer, ruling that the team could be sued only in cases of gross negligence or intentional harm. The courts did allow Stringer’s widow, Kelci, to pursue a malpractice claim against the doctor who treated her husband at the Vikings’ training camp, ruling that he was not a team employee. The doctor and his clinic settled the suit for an undisclosed amount. Stringer had about $8 million remaining to be paid on a contract set to end in 2003. It was not guaranteed.

The cap on workers’ comp benefits in Minnesota is $750 a week. In contrast, juries have awarded players $1.3 million and $5.3 million in the pair of malpractice judgments that have gone against team physicians in recent years.

“If the doctor is a contract employee, you go after the contract employee on straight medical malpractice,” said Paul DeMarco, the attorney who represented Kelci Stringer. “The difference between being able to pursue a straight medical malpractice suit for a career-ending injury and being consigned to workers’ comp is like the difference between lightning and a lightning bug.”

Making a doctor an employee takes lightning out of the equation. But the remedy may not be as simple as it sounds. Players associations in football, baseball, basketball and hockey filed a joint brief in support of Lotysz in his case against the Jets, calling that employment agreement with doctors “a sham.”

“If you believe some folks, the trend is to try to make doctors employees to avoid [liability],” said Richard Berthelsen, general counsel for the NFLPA. “We don’t like that. We don’t think doctors should be allowed to get under that umbrella. Workers’ comp laws were never intended to have that application.”

Yet, in most states, they are routinely applied to sports.

The fact that sports injuries are deemed to be workers’ comp cases in every state except Maryland helps teams keep down their medical costs. Most state systems pay doctors a set fee for procedures performed under workers’ comp. That fee can be significantly lower than what a doctor would charge a patient who isn’t under the workers’ comp umbrella.

Teams can purchase varying levels of workers’ comp coverage, electing to pay high premiums that cover them regardless of the number of players who are injured or opting for lower premiums that also bring high deductibles.

In an effort to contain costs in a hard insurance market, MLB last year opted to pool workers’ comp coverage for most of its clubs. The league purchased outside insurance to cover catastrophic accidents, but opted to self-insure against day-to-day claims.

When a player is injured, MLB pays for treatment through workers’ comp. Teams end up paying $750,000 to $1 million a year in premiums and medical expenses, according to MLB executives, not including retainers paid to physicians and medical centers.

“Our teams were hurting when they were going out for insurance renewals, particularly with workers’ comp,” said Anthony Avitabile, director of risk management for MLB. “We found that, since we know historically what the losses are likely to be every year … we can take the insurance carrier out of the equation. We’re willing to take the day-to-day risk.”

Earlier this year, MLB attorneys advised teams to consider making their doctors employees to help them cope with rising insurance costs. Few have taken that route, MLB lawyer Frank Coonelly said, because, “right now, we haven’t had a problem with clubs finding the highest quality doctors.” But MLB has told clubs it believes team doctors qualify as employees in many states, giving them the right to protection under workers’ comp laws.

Cleveland Clinic Sports Health provides health care for the Browns, Indians and Cavaliers.
Berthelsen suggests that few, if any, team doctors should be considered employees, since they spend most of their time handling cases outside the team, are not handled like other team employees on payroll issues, and are not supervised by the team. He says calling them employees is a “circumvention” of the system.

“The fact of the matter is the team physician either is or isn’t an employee,” said Rob Manfred, executive vice president of labor relations for MLB. “If he is, then it isn’t a circumvention of anything. The law is applied to the facts as they exist.”

The NFLPA has advised players to consider the relationship between teams and their doctors when making choices about their care, particularly when it involves surgery. The NFL collective-bargaining agreement gives players the right to a second opinion and the right to choose their own surgeon.

“Unless you’re sure the team doctor is an independent contractor, you’re best off choosing your own doctor to do the surgery,” Berthelsen said. “We urge players to exercise that right.”

But what if outside specialists, who almost certainly will not fit under the workers’ comp umbrella, lose the stomach for the risk?

“The worst of all worlds is players not getting good care because they can’t find anyone who will treat them,” Godes said. “What everybody should be working to achieve is a system where players get the best possible treatment. You’re not going to get that in the future unless you find a way to protect [doctors’] down side on the liability.”

Russian roulette

As head of the NFL physicians society, Bradley frequently is a sounding board for doctors across the league. In the last two years, he has heard many say that they are close to turning in their team stethoscopes. He asks them for patience, telling them that the league and the union are aware of their aches and are working to heal them. He fears that two or three have run out of patience.

Pellman, too, hears the complaints. He tries to retain his optimism.

“I’m not aware of anything being imminent, but that can blow one way or the other,” Pellman said. “From my vantage point, as someone responsible for watching the herd, if we get a few more lawsuits the herd could stampede.”

Heading to a golf outing recently as the Falcons concluded minicamp, Bishop said that, having sweated through Vick’s injury and watched him return to the field, back at warp speed, he was looking forward to his 11th season as an NFL doctor.

He enjoys it too much to leave, he said, at least for now.

“It’s a constant fear that hangs over you when you treat athletes who make this kind of money in a dangerous game where injuries are common,” Bishop said. “It’s a little bit like playing Russian roulette. It just takes one bullet in the chamber to kill you. It just takes one guy to sue.”

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