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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
2
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
3
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
4
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
5
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)
6
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;
7
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
8
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”)
45
• 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!