Practice Guidelines take Center Court

David L. Herbert, JD

THE PHYSICIAN AND SPORTSMEDICINE - VOL 24 - NO. 3 - MARCH 96

In Brief: An unintended result of practice guidelines, meant to codify and streamline high-quality patient care, is their role in the courtroom: to attack or to defend the delivery of medical care to athletes. Researchers predict that patients' attorneys will make greater use of practice guidelines in malpractice claims. The best tactic sports medicine physicians can use to prevent claims is to become familiar with and adopt applicable practice guidelines. Also, physicians need to know when they're deviating from the guidelines and how to defend such decisions.

In 1990, Loyola Marymount University basketball player Hank Gathers collapsed and died during a nationally televised college basketball game from complications of hypertrophic cardiomyopathy (1). Gathers' death cut short an athletic career that might have led to the National Basketball Association. It also led to a $32.5 million lawsuit that was filed against his sports medicine physicians, his university, the school's athletic director, the team's coach, and one of the school's athletic trainers (1).

The suit was based on allegations of negligence, interference with Gathers' medical care, and a host of other claims detailed in 52 pages of the plaintiff's court papers. One of the complaints was that the defendants breached the 16th Bethesda Conference guidelines (2) in their care of Gathers (1).

This filing by Gathers' estate may well have represented the first time that practice guidelines (practice parameters or practice standards) were used in the sports medicine setting to attack the care given an athlete. Recent research findings (3) strongly suggest that it won't be the last case to rely on such statements.

Litigation Trends

To determine how practice guidelines are used in malpractice litigation, researchers from three institutions recently surveyed nearly 1,000 attorneys who prosecute medical malpractice claims. Researchers also reviewed 259 malpractice claim files from two insurance companies. In analyzing the results of their survey and review, they determined that:

Attorneys and medical malpractice insurers currently make only moderate use of practice guidelines in malpractice lawsuits.
Attorneys believe that the use of practice guidelines for litigation purposes is increasing.
Practice guidelines are used both to attack (inclupate) physicians' conduct and to protect (exculpate) physicians from malpractice claims.
Practice guidelines are more frequently used to attack physicians than to defend them.
The use of practice guidelines to defend physicians' actions reduces the propensity of malpractice attorneys to file suits or to pursue claims.

The researchers also predicted that the perceived increasing use of practice guidelines may increase litigants' use of expert witnesses. Though the researchers felt that the use of practice guidelines in malpractice litigation may lead to greater compliance with such statements, they also believed that the frequent use of such standards against physicians might have a chilling effect on physicians' interest in developing more specific and prescriptive guidelines.

What Are the Risks?

Sports medicine providers should heed these findings and predictions, especially since at least one major sports medicine related lawsuit already has featured the use of a practice standard to attack medical care (1). Though the litigation was settled without trial, it should serve to warn sports medicine providers about what may be at stake.

There appear to be about 100 standards that apply specifically to sports medicine (4). These statements pertain to such matters as the preparticipation physical examination (5), return-to-play decisions (6), and the handling of human blood on the playing field during treatment (7).

To be sure, some sports medicine practices may not conform to these standards (8). As the investigators determined, care provided to athletes that departs from such practice guidelines will most likely result in malpractice litigation if the departure is seen as having harmed the patient.

To illustrate what could happen in this regard, consider the care provided to diver Greg Louganis during the 1988 Olympic Summer Games. Louganis' head laceration (sustained when his head struck a diving board) was sutured by a sports medicine physician who was not wearing gloves (9). At the time, Louganis' positive human immunodeficiency virus status was not known, and the bloodborne pathogen standard and universal precaution statements were still under development. But what would have happened if the standards had been in place and the virus had been transmitted to another athlete?

A demonstrated failure to adhere to published standards for sports medicine practices could lead to nearly automatic negligence findings when an athlete is injured or infected as a result of the noncompliance (10,11). The Louganis incident in this regard is not an isolated occurrence (8); a similar situation could have arisen during the courtside care of Magic Johnson during his last basketball game of the 1991 season when he was treated for a cut by a provider who was not wearing gloves (8). (He recently returned to professional basketball.) Such a deviation from the standard care may suggest a pattern that could lead to successful claims and suits.

The intent behind the development of practice guidelines is to create clear written standards that can be used to analyze patient care and determine if it was properly provided (4). The goal of the practice guidelines, as the researchers found, can be met only if practitioners understand and follow the guidelines. The problem sometimes, as the investigators also found, is related not only to the existence of such statements, but also to physicians' knowledge and utilization of them.

Obviously, when physicians are unfamiliar with practice guidelines, they run greater risks of claims and suits stemming from untoward events that might occur when they do not follow those guidelines. However, if providers are familiar with such statements but choose not to follow them, they also face a greater likelihood of claims and litigation if a patient is injured or dies as a result of the care provided. This may be true even if providers demonstrate the acceptability and necessity of deviation in a specific situation or use other practice standards.

Though most practice guidelines permit deviation when necessary for specific patients, few providers are prepared to justify and adequately document the reasons for such decisions. Given the results of the aforementioned research, one must also ask if deviation without clear and demonstrable need should even be considered.

Protect Your Practice

Many providers, including some sports medicine physicians, have expressed contempt for any "cookbook" approach to care. Nonetheless, the recipe for avoiding malpractice claims and litigation may well depend on a physician's ability to demonstrate adherence to accepted practice statements or to clearly and adequately document the reason for any decision not to follow such statements. Even then, greater risks of claims and suits appear to be related to such noncompliance.

To shield themselves from the practice guideline sword in malpractice claims and litigation, sports medicine providers should consider taking the following steps to establish a sound risk management plan for their practices:

Become familiar and stay current with relevant and authoritative practice guidelines that apply to the treatment of athlete-patients.
Adopt acceptable practice guidelines, and render care in accordance with such statements.
Document and be prepared to defend any decision to deviate from a practice guideline because of the unique condition, presentation, or needs of a particular athlete-patient.
In conjunction with your malpractice insurance carrier and/or attorney, provide authoritative guidelines to athlete-patient representatives who question the care specified by the practice guidelines.

Know Your Risks

Though there may be no foolproof way to avoid claims and suits related to the treatment of athletes, comparing recent research findings with actual case filings clearly demonstrates what is at stake. To reduce the chances of claims and suits, all healthcare practitioners should make plans to adopt and implement guidelines in their individual practices or be prepared to defend their decisions not to do so.

References

Herbert DL: The death of Hank Gathers: an examination of the legal issues. Sports Medicine Standards and Malpractice Reporter 1990;2(3):45, 46-47
Mitchell JH, Maron BJ, Epstein SE: 16th Bethesda Conference: cardiovascular abnormalities in the athlete: recommendations regarding eligibility for competition. J Am Coll Cardiol 1986;6(6):1186-1232
Hyams AL, Brandenburg JA, Lipsitz SR, et al: Practice guidelines and malpractice litigation: a two-way street. Ann Intern Med 1995;122(6):450-455
Herbert DL: The Sports Medicine Standards Book. Canton, OH, Professional Reports Corp, 1992, suppl 1993
Bergfeld J, Lombardo J, Nelson M, et al: Preparticipation Physical Evaluation, ed 1. Kansas City, MO, American Academy of Family Physicians, American Academy of Pediatrics, American Medical Society for Sports Medicine, American Orthopedic Society for Sports Medicine, American Osteopathic Academy of Sports Medicine, 1992
Colorado Medical Society: Guidelines for the Management of Concussion in Sports. Denver, CO, Sports Medicine Committee, Colorado Medical Society, 1991
American Academy of Pediatrics: Policy statement: human immunodeficiency virus [acquired immunodeficiency syndrome (AIDS) virus] in the athletic setting. AAP News 1991;6:18
Herbert DL: HIV/AIDS and athletic participation: the year in review. Sports Medicine Standards and Malpractice Reporter 1993;5(1):1,4
Olympic gold medalist-diver Greg Louganis-reports he has AIDS. Sports Medicine Standards and Malpractice Reporter 1995;7(2):27
Herbert DL: Developing policies and procedures for sports medicine programs. Sports
Herbert DL: Legal Aspects of Sports Medicine, ed 2. Canton, OH, PRC Publishing, Inc, 1995

Mr Herbert is senior partner at Herbert, Benson, & Scott and coeditor of The Sports Medicine Standards and Malpractice Reporter, a publication of PRC Publishing, Inc, in Canton, Ohio. He is an editorial board member of The Physician and Sportsmedicine. Address correspondence to David L. Herbert, JD, Herbert, Benson & Scott, 4571 Stephen Cir NW, Canton, OH 44718.

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