Concussions: When Athletes, Doctors, and Ethics Collide

What should a physician do when privacy laws conflict with patients’ interests? What if an athlete is willing to jeopardize his or her health to play, even when a physician has advised against it? What if an athlete asks the physician not to disclose a health risk or a denial of clearance to play? Is there anything a physician can do to protect a stubborn athlete?

Doctor’s Dilemma

Physicians who care for concussed athletes carry a complex array of ethical and practical burdens. In some cases, the privacy interests of an athlete can come into competition with a physician’s duty to safeguard the current and future mental health of the athlete. An article published in Neurology, the official journal of the American Academy of Neurology, seeks to help physicians navigate the legal and ethical framework that constrains the treatment of athletes with sports-related concussions.

Concussion Law

The Neurology article examines the parameters physicians are required to work within by detailing school policies, state concussion legislation, and federal privacy laws. According to the National Conference of State Legislatures, each of the 50 states and the District of Columbia has passed legislation addressing traumatic brain injury. Many of those laws are specifically targeted at sports-related concussions and contain components addressing education about concussions, protocol for removing injured players from games, and  procedure for clearing a player to return. Although no federal legislation has passed, some bills have been proposed to address sports-related concussions. For example, a house bill, Protecting Student Athletes from Concussions Act of 2011 (H.R. 469), sought to create a federal regulatory protocol for student athlete concussions.

Privacy Laws

The federal Health Insurance Portability and Accountability Act (HIPAA) (P.L. 104-191) complicates a physician’s job because it generally restricts a provider from disclosing personal health information without a patient’s consent. Thus, when a patient requests that the physician’s denial of clearance to play remains confidential, there is little a physician can do to protect the athlete. Although the HIPAA protections are crucial bastions of privacy, they can put physicians in an uncomfortable place. The Neurology article discusses a solution adopted by some schools which require athletes to sign waivers to participate in sports programs. The waivers typically allow a physician to share information with school staff and coaches regarding a decision not to clear an athlete for play. The problem with the waivers is that they usually only apply to doctors that are affiliated with the school. Outside of the waiver context, in extreme circumstances, physicians may fall within a narrow HIPAA exception which allows disclosure of confidential patient information to lessen the risk of a serious threat to patient safety. However, the general rule, absent patient consent, leaves the physician at risk.

Ethics

The journal article places great emphasis on the balance a physician must strike between protecting, educating, and respecting the autonomy of a patient. Many forces can be at play in an athlete’s decision to play despite injury. For example, an athlete may be motivated by potential scholarships, coercion, or the influence of coaches, parents, teachers, and teammates.  Whatever underlies an athlete’s decision to play or not,  the article cautions that while a physician’s duty to respect patient autonomy is highly important, it is not the only ethical imperative.  Some circumstances may require physicians to take action to supersede athlete decisions to protect patient health. In the absence of a clear solution, the article recognizes the dilemma is a balance that leaves physicians on tenuous ground.

Concussions in the NFL

The Neurology article comes at a time when sports related concussions are making headlines. A federal judge recently granted preliminary approval to a settlement between the National Football League (NFL) and thousands of former players that claim the league inappropriately handled concussions they suffered while playing. The settlement, according to the Associated Press, addresses claims from former players who suffer from a variety of concussion related neurological symptoms. The neurological problems addressed in the settlement include dementia, Lou Gehrig’s disease, and Alzheimer’s. The current settlement is an expansion of an earlier settlement, which the judge rejected, that had the NFL paying out $870 million to players and their lawyers.

FIFA

In the wake of the FIFA World Cup, FIFA, the preeminent authority on organized international soccer, has taken considerable heat over its lack of a concussion protocol for injured players. One ESPN analyst told the Washington Post that the ESPN attitude towards concussions was “barbaric” and “1950’s-ish.” With the lack of FIFA oversight, every team handles concussions uniquely and critics are saying it’s not enough. If the player backlash against the NFL is any indication, FIFA will soon find itself on the wrong side of a player challenge if it doesn’t establish a concussion procedure soon. Even in the world of professional sports, a balance is being struck. Whether the balance is a good one is a different question. Like the dilemma faced by physicians, sports organizations like FIFA and the NFL are being asked to decide between action and safety.

The question remains the same for sports organizations and players of every caliber: what is more important, a brain or a game?

Comments

  1. Michelle Oxman says:

    Student athletes, especially those in high school, have parents who should be making the decisions about when they should return to play. And some schools have more proactive programs to prevent and detect injury. At my son’s high school, every player has a baseline exam, and if he is hit, the school medical personnel have something to compare it to. Simple tests are done to check for symptoms of concussion. The player saying “I’m OK” is not sufficient (at least in theory) for him to return to play.

    Perhaps college and professional sports associations can learn something from the schools that take better care of their athletes.

    At least in the NFL the players are adults who might be making informed choices now that the dangers of concussions are more well known.

    • Sadly, there are lots of parents who push their kids back into the game too early. Having treated kids with concussion in a PT setting, the parents are almost always the first ones asking “when can he/she go back to sports”. And in all settings, the pressure to “get back in the game” is pretty high, especially when there is money on the line. So happy that your son’s school is being proactive about concussions!