CONFIDENTIALITY
Confidentiality is especially important in sports medicine. When a high-profile athlete requires medical treatment, oftentimes the occur-rence will be kept strictly confidential. Any leak of information to the media could render the treatment facility, as well as the staff, susceptible to libel lawsuits — not to mention that it would be a major HIPAA viola-tion. Furthermore, reported injuries can influence the marketability of the athlete. Injured athletes may have a harder time obtaining compensation equivalent to their peers.
Insurance companies have their say, too. The club is obliged to insure its athletes against personal injuries. Insurance companies may refuse to cover cases where a negligent medical treatment was applied.
They can even sue the physician for reimbursement. Thus, it is extremely important to keep medical confidentiality, both to agencies and to the media.
Sports culture plays an additional role in athlete confidentiality. Cir-cumstances often place sports physicians in a position where they are
If an athlete has insurance and forgoes submitting a claim for injury, does the insurance company have a right to know about the injury?
called to release information to other team physicians, including those from the same team or other neutral sports physicians, regarding an injured player. There must be a legal balance between consulting with a specialist about a player’s injuries and respecting and upholding the ath-lete’s privacy rights. Furthermore, when a team physician is financially compensated by the team or the school, he is bound to communication with the team manager, coaches, and owners. The athlete must be made aware of this relationship from the start. Sports physicians deal with shar-ing information about an athlete at all levels, includshar-ing when the athlete moves from high school to college or is traded at the professional level.
Unauthorized disclosure of information about an athlete’s medical con-dition to third parties violates a physician’s ethical obligation to maintain patient confidence. Such unauthorized disclosure may expose the physician to legal liability for invasion of privacy. A physician could face charges of independent tort for unprivileged revelation of medical information to third parties — or for defamation or intentional infliction of emotional dis-tress if the information is false. Even accurate disclosure, however, may subject the team physician to liability for breach of the common-law duty of confidentiality that is owed to the athlete.
HIPAA
The Health Insurance Portability and Accountability Act (HIPAA) regu-lates how team physicians and members of the healthcare team communi-cate and handle patient medical information. In general, sports medicine shares the same concerns with general medicine concerning the HIPAA regulations. However, the biggest concerns revolve around directives that cover oral and written communication.
Primary-care sports medicine requires the physician to be involved in frequent consultations with orthopedic surgeons, athletic trainers, physical therapists, and coaches. Team physicians may be prohibited from consulting with specialists and athletic trainers about a player’s injuries without the written consent of the athlete. The act raises further questions about the com-munication between physicians and teams or schools: is it legal? The infor-mation about an athlete needs to be shared or transferred when the athlete moves from high school to college or is traded at the professional level. The HIPAA can affect how this information is passed.
The enforcement of HIPAA is increasing births of hybrid entities, such as the sports-medicine department at Stanford University, where treatment is crossing academic, athletic, clinic, and hospital lines. The HIPPA has also ushered in a new classification scheme for athletic trainers. In some
states, athletic trainers are not licensed by the state and, therefore, are not considered healthcare professionals in the eyes of the law. However, many major universities and colleges are opting to include athletic trainers as covered entities in their definition of healthcare. See Section Three, Anno-tated Primary Source Documents for an example of a HIPAA form.
DEFAMATION
Sports medicine is especially susceptible to defamation and breaches of confidentiality. Any leak to the media concerning an athlete’s injury can ren-der the athlete less marketable. The publicized injury can lead to less money for the next contract. The media often complicates the problem. Many tabloids offer lucrative sums to individuals for the exchange of information.
An athlete treated at a public hospital has to deal with the possibility of the X-ray technician, phlebotomist, security guard, or some other medical or security personnel selling out. While the reporting agency may pay lots of money for the information, the athlete may suffer the biggest cost.
Many court cases illustrate the insidious creep of defamation into sports medicine. In Chuy v. the Philadelphia Eagles Football Club, a foot-ball player alleged that the team physician defamed him by falsely informing the media that he had a potentially fatal blood disease. He also claimed that it caused him to suffer severe emotional distress. The Third Circuit held that the physician’s knowing misrepresentation of the plain-tiffs medical condition was “intolerable professional conduct” that estab-lished liability for intentional infliction of emotional distress. Ultimately, though, the court upheld the jury’s dismissal of the case, because there was no evidence that the plaintiff’s reputation had been harmed by the physician’s statement.
Defamation in sports hits the media too. Former boxer Randall “Tex”
Cobb sued Sports Illustrated and Time, Inc., over a 1993 article that said he had used cocaine and knowingly participated in a fixed match in which he defeated Paul “Sonny” Barch (Cobb v. Time, Inc.). A United States federal appeals court threw out a 10.7-million-dollar libel verdict, unanimously rejecting the verdict, because there was no evidence that the magazine pub-lished the story with “actual malice.”
PREMATURE RELEASE OF DOPING RESULTS
Bernard Lagat, an athlete who tested positive for the blood-booster ery-thropoietin in an out-of-competition test in August 2003, was suspended by the IAAF (International Association of Athletics Federations). However, the
B-sample taken later that year came back negative, and his suspension was lifted. Lagat had sued the IAAF for falsely accusing him of doping, and sought $604,000 in damages from the IAAF and WADA (World Anti-Doping Agency). The IAAF agreed to exonerate the Olympic silver medal-ist of any doping offense if he dropped the lawsuit, and the world-governing body of athletics accepted the compromise proposal, because it had always considered Lagat innocent of any doping offense.
The news of the positive A-sample was leaked prematurely by the Kenyan federation. IAAF spokesman Nick Davies told the Associated Press in a telephone interview: “We regretted the leak then and we regret
it now, because if it weren’t for the leak, the athlete wouldn’t have been in such a situation.”1
Perhaps the most well-known doping-related defamation scandal involves Marion Jones, winner of five medals at the 2000 Summer Olympics in Sydney, Australia. On a 20/20 episode in December 2004, Victor Conte, the mastermind of BALCO, alleged that Jones was using banned substances when she won five medals. Conte declared that he sup-plied Jones with an array of banned performance-enhancing drugs in 2000 and 2001. Jones filed a 25-million-dollar lawsuit later that month.
Victor Conte quietly agreed to settle the defamation lawsuit brought by the Olympic champion. Terms of the settlement were not disclosed.
Marion Jones’s comeback came in a laboratory, where her B-sample turned up clean. This stunning twist cleared her to compete and validated a long list of triumphs sullied by years of doping allegations.
Howard Jacobs, one of Jones’s attorneys, stated, “I believe there are issues with that test . . . . It’s a difficult test. From what I saw on the A-sample, it was questionable as to whether it should’ve been called a positive. I can’t say
I was shocked that the B [sample] came back negative based on what the A [sample] looked like.”2
Should doping allegations be released when the A-sample fails?
Should the officials wait until the A-sample is confirmed? How about until the B-sample is confirmed?
Should an athlete have to wait several years to have her name cleared with a clean B-sample?
Jacobs ridiculed the leaking of positive tests, declaring that doping cases should not be made public until they are resolved; yet, most are reported once a positive A-sample is confirmed. “This is [a] perfect illustration of why this new trend of leaking A-positives is a horrible thing,” Jacobs said.
“This whole thing should have happened anonymously. Marion should’ve been able to keep competing, and no one should have known about it.”3
Several other public officials express strong sentiment concerning confidentiality and doping. The following is from a testimony by Terry Madden, CEO of the USADA before the Senate Committee on Commerce, Science, and Transportation on May 24, 2005:
Significantly, while USADA believes the privacy rights of individuals accused of doping must be respected, no individual’s privacy right should outweigh the rights of all athletes to compete in clean sport and to be assured that those who break the rules are appropriately sanctioned. For these reasons, in the USADA system, once an athlete has been found to have committed a violation there is complete public disclosure of the athlete’s name and the nature of the offense.
On August 1, 2005, Rafael Palmeiro, an MLB player, was suspended for ten days after testing positive for steroids. The baseball players’ union expressed concerned that baseball, as part of its anti-steroids push, might have violated Palmeiro’s privacy rights by leaking information to the media about when Palmeiro failed his drug test and which steroid was uncovered.
NOTES
1. http://www.nytimes.com/aponline/sports/AP-OLY-Lagat-Doping.html.
2. By Eddie Pells, Associated Press, September 6, 2006.
3. By Eddie Pells, Associated Press, September 6, 2006.