Saturday, January 28, 2012

Doctors v Lawyers (Sports Blogging)

I seriously hadn't planned on this being how I spent my sunny afternoon but I figured I had to clarify something that I tweeted and was retweeted by someone with almost 10k followers.

In case you weren't aware, and I don't always blog this fact, I spend an inordinate amount of time wondering about sports issues from CBAs to intellectual property rights to contract structure to the exploitation of the college athlete. On and on and on. The business side of sports, or even just the away from the playing of sports, fascinates me endlessly. (I'm looking for work, everyone! I'll do jusssst about anything.) 

To that end, between sports law in both undergrad and law school, entertainment law, into even business law and intellectual property which all tie in, I've had some actual schooling on these topics. 

When it came out this afternoon that Sidney Crosby, star player for the Pittsburgh Penguins who has missed over an entire season of hockey due to concussions, apparently also had fractured vertebrae that was somehow "missed" by team doctors, my first thought was, "Well, there's that complicated conflict of interest I've often (quietly and to myself) questioned before." In fairness to those doctors, my second thought was, "None of the people that I follow on Twitter are MDs so maybe there is more to how this got 'missed' than we know?" 

Chris Jones, who I realize has a complicated internet relationship with people I count as friends, said, "Given Sidney Crosby, Colt McCoy, the Mets, the Red Sox... There is an important story to be done on athletes and their medical care." 

Again, as this is something I take a personal interest in, the way some people take up knitting or video game playing, I tweeted in response to his comment, "Always wondered about the divided concern of drs to players when team pays directly for their services. Seems...complicated." 

The fact that a team pays a doctor creates a relationship wherein the doctor is beholden to the team.  For obvious reasons I can imagine the doctor wanting to keep that job. That is a high profile, money making gig that probably helps him in his private practice/popularity. Even people who act as gods in operating rooms probably had some fascination with sports growing up, why wouldn't you want to work for a team? However, because of the nature of being employed by the team, the doctor's loyalty may at times run in direct opposition to what is best for his patient. The team's goal (win the most games possible to bring in revenue to be a successful corporation) may run in direct conflict of interest with the player's needs (get healthy, have a long and successful career, not die young of brain problems). How does a doctor rectify that situation? (Honest question. I truly don't know.) 

To expand on my point I said in a tweet directed at Chris Jones, "As lawyers we'd never be able to rep a team AND the player in a matter of overlapping concern. Drs shouldn't."

Chris Jones said that was a good parallel and proceeded to retweet my comment. Not even gonna pretend that for me and my myriad of insecurity issues, despite his aforementioned complicated relationship with my friends, to be retweeted by a writer for a magazine I used to fantasize about writing at didn't feel really good. 

Still, my immediate thought after tweeting that was, "I shouldn't have said never." Obviously it's not never. There are some situations in which it would be okay. If a player was suspended and a team lawyer represented him at a hearing, that's probably all fine. But there the team and the player's interests are concurrent: be suspended as short a time as possible. 

If a player was arrested for a criminal act, the team could ask the team lawyer to help out, but it would have to, under our ethic rules in California, be made very clear to the player who the lawyer represented and that if it was in the best interest of the team to have the player plea out and keep it quiet than to fight the charge, that is what the lawyer might direct the player to do as his responsibility is to the team, not the player. The player has to consent, in writing, to such an arrangement. It'd often be advisable for the player to get his own lawyer, even with informed consent. Which he likely has. I'll say that again: A player likely has his own lawyer. So shouldn't he also have his own doctor who is putting his interests before that of the team? Because even with informed consent for team representation on a civil or criminal matter, there are far too many ways for things to go wrong that complicate our ethics and inhibit our ability to provide the best advocacy that an attorney would likely avoid doing it.

I'm guessing implicit in this all is that a doctor's edict is "first do no harm". We expect them to follow that. But doctor's are lawyers with medical degrees, meaning fallible and human and thus prone to put concerns like job security and winning now over winning later and shoot him full of cortisone and get him back on the field attitudes before the overall health and well being of a player. They are human. And if memory serves (I'll look for a citation later), in the NFL (I'm unsure about other sports), a player is required to use the team doctor for treatment during the season. That's a scary thought: the guy whose advice you HAVE to take on medical issues is being paid to do what's in the best interest of your employer, not necessarily you. 

Continuing on the legal analogy, if the teams needs were in direct conflict with a player's needs, like contract negotiations, there is no way in god's green earth a lawyer could rep the player and the team. It flies in the face of our code of ethics where we are to offer zealous representation to our clients. If you don't know who the client is, or the clients have completely opposing interests (team to pay as little as necessary, player to make as much as possible), how is that supposed to work? It doesn't. It's unfair to one side or the other. We're simply not allowed to do it, even with all the informed consent in the world. (This conflict arises often with player's agents. How do you rep multiple clients playing the same position in a sport who are up for free agency at the same time and ensure that they both get fair deals? How are you not hanging one out to dry to the advantage of the other? Sticky. A discussion for another time...)

Our job is to be an advocate, and the law won't simply let a client sign that right away against his interest. You have to have someone represent you and only you, whether it's in criminal or civil matters. We allow that person to be yourself but no player could simply say to the team, "Eh, whatever your guy comes up with is fine." He could immediately contest that contract in court as unfair on its face. So why do we let doctors do essentially this? 

If a player needs ample time to heal, or a surgery that is going to take him out of the game for some time, or to even be told that his career is over, but the team has invested a great deal of time, money, and resources into such a player, or even if they haven't, which is probably worse because they have even less concern about how he heals, and there is a solution that patches him up quickly and gets him back out there, what should the doctor do? Even assuming a doctor went to the team, which he likely has to do as they are his employer, and said, "This time consuming course of action is best, but there is a quick fix available alternative that might not last as long and require more surgery later," after which the team takes door number 2, isn't that at the very least problematic? I imagine that even if the doctor knows option one is in the best interest of his patient, the player, he has to do what the team says or risk firing, knowing that to help the team some other doctor will do what he is hesitant to. That sort of hanging job insecurity creates an ugly dynamic between team, player, and doctor. Ugh. I worry about these kids, I really really do. I know they have agents and managers and people paid to look out for their best interests but do they have zealous advocates? Crosby is only 24. I don't think at 24 I would have been able to advocate successfully in my best interests. Or even known that I needed to be advocating for my best interests. 

I'm not saying that doctor negligence or putting a team first over individual interests is what happened to Crosby. Or even what happens generally. In fact, the Penguins organization seems to have been as diligent as they possibly can in this case, at least from my reading of the situation (though upon further reading, Crosby's "unhappiness" with staff in Pittsburgh may say otherwise). Still...the doctor/patient/team relationship is one, as Chris Jones pointed out, in which an in depth look is needed by someone with far more journalistic skill than I possess for the conflict and problems it can create in the health of pro athletes.

(You can read more about Crosby here via PuckDaddy.) 

No comments:

Post a Comment