Transcript
Today.
So pleasure to have this last session for the symposium.
It's been a fantastic week.
I've got David Fleishman.
Who is an attorney attorney here in Baton Rouge, and David, welcome to the presentation today.
Thank you, Rick.
Excited to be here.
Oh, great.
This is gonna be a fantastic talk.
I think this had some there have been a number of questions about the symposium that deal with the legal issues with sports medicine.
And this was definitely we wanted to make sure I have a topic on this as well.
So I'm gonna give a quick introduction.
Obviously, David's Bio is on the website, and David is currently he's a partner with Brazil Station Wilson here in Baton Rouge.
He's also a former basketball player, so he's worked with athlete trainers over the years, even as an athlete.
And otherwise, he's a graduate of Ella Shoes, Paul William Abert Law Center.
In his early career, he served as a clerk with the governor's executive council during the and as part of the governor's office homeland security here in Louisiana with a deep water horizon oil spill.
He has been his area is a number of different areas, but he also he is he's represented for professional amateur athletes coaches, agents, venue owners, and businesses related to sport law.
He's also been lead council on some landmark cases related to a name image and likeness here in Louisiana that has had a best impact on the country related to that topic.
He's worked on enforcement for NCAA in LA in the state hospital association rules.
Among other things.
And on that, I've had the opportunity to know David for a number of years, and David, I'm just excited to have you on board here today.
I think you bring a very different perspective, or we'll have that today, and I'm a turn it over to you, and let's just get started with this conversation because I'm excited to I'm gonna probably ask some questions myself related to the what it means to be establishing a scope of practice for coaches and health care providers specifically when we talk about emergency care.
So I'll give it over to you.
No.
Thanks, Ray, and I'm I'm honored to be a part of such an awesome event looking at the the line of speakers, though.
I'm I'm woefully, you know, not not qualified to speak in terms of the medical and getting into the details of of all the many topics it looks like you've had.
But excited to talk on, you know, on something that's that's certainly important for a lot of different reasons.
But, you know, really when we talk about sports medicine, I think a lot of people don't really quite know and and really look at in-depth the the relationships there.
What what really is sports medicine?
You know, there there's a lot of moving pieces here.
The first thing too, I I I really wanna say though, is that, obviously, this is not a situation we're providing providing legal advice, and there there is no attorney client relationship formed based on this, which I think everybody who's watching this fully understands.
But the other important thing to talk about and make sure that everybody understands is Really legal fault depends on where you are.
There's there's really no national standard by which coaches and administrators and trainers can be measured, you know, for a particular act or event constitutes legal fault.
So, you know, there's certainly situations where, you know, the same set of facts can have the opposite results in courts in different states.
So it's something to to remember.
So depending on where you are and where you're watching this this presentation.
And and also when, you know, we're currently talking about some issues that that are that are current, but if you're watching this 3 years from now, it may may be different.
So it is always in your best interest to to contact a a practitioner, an attorney in your state.
So that's that's the first thing I want to say.
But really kind of talking more generally about what is sports medicine You know, sports medicine is really the focus on the nature and obligation owed by team physicians and trainers to athletes.
And encompasses the application, the confluence of medical jurisprudence, and sports to those who conduct sports activities.
You know, there's a lot of players here when you talk about a university, and and that's sometimes the context that's easiest because you think of a lot of resources and you think of, you know, some some some of the most highly trained professionals and and and leading professionals in terms of of scope and education that are really cutting edge.
I think of that when I think of think of sports medicine, I think of Ray.
Honestly, I think of the things that he's been able to do with Elashu.
The the the many trainers that that have come up through the program and have gone on to do some pretty awesome things in in the industry.
So, you know, there's really it's really 4 key individuals that I would say are at at play here that we're talking about.
And the point of defining these is is before you could talk about the scope, You need to kind of we we need to be sure that we're all talking about the same thing and and who we're talking about.
1, obviously, is the athlete.
That's the easy part.
That is that's just gonna be the individual who's participating in an app athletic activity sponsored by an organization.
The other maybe a little bit easier definition is the organization, which is, you know, a a person or group of people intentionally organized to facilitate athletics.
And responsible for the provision of appropriate medical care for athletes.
So this is, for instance, a school, an athletic department, maybe a high school, maybe AAU, maybe even a team, a professional team.
Those would all kind of fall in in the definition of organization.
Where you start to get, you know, you start to kind of focus in on on the care that's provided to athletes.
We talk about athletic trainer that really refers to a healthcare professional who's rendering services or treatments under the direction for in collaboration with a physician.
That's what they've licensed medical provider.
And that's also governed.
They're governed by various state statutes.
I think maybe all but one state governs the practice of of athletic trainers.
And as part of, you know, a larger kind of healthcare team, which we'll talk about, I think it's an important part is that I, you know, I don't think we're we're moving away from it seems to me, and I'd be interested to know kind of raise position list.
But it seems the trend is moving away from really silo approach where the trainer only does this, correct it in the in the the team the team position does this does this scope.
I think as technology advances, as more specialties advance.
I think there's there there tends to be a little bit more of a blend there where you're working in teams.
So The athletic trainer is certainly part of a an organization's healthcare team that would provide injury and illness prevention, wellness promotion, and education, emergency care, examination, clinical diagnosis, therapeutic intervention, rehabilitation of injuries and medical conditions.
And then you have that, really, that 4th component, the team physician, which is a difficult It's a difficult thing to define.
I mean, we know that it's a person that is licensed to practice medicine who is rendering professional medical services to athletes.
But what's tricky is the the the potentially limitless arrangements that you see with the team physicians, whether they're volunteer, you know, whether they are actually employed by the organization internally, or whether there's some other financial arrangement or contractual agreement, it can look a lot a lot different.
And that that depends whether you're in a professional league, whether you're at a division 1 school and in college or division 3, and then it goes even to high school.
You know, a
a
bovae school in in Texas.
They they very well may have a a licensed, you know, physician that is working for the school.
And then you may have a real small school in in Baton Rouge who has one of their student athletes, you know, parents are are our licensed physician who just happens to volunteer.
And so the scope and and and that's where it gets tricky to to talk about this in terms of, you know, from a legal standard.
And and that's something important to to remember when we're we're talking about different questions.
And and in what context, you know, that this is the starting place.
We need to understand the dynamics and and to look to look at each role of each of these individuals.
As I've mentioned, the the athletic healthcare team is kind of a larger group, and and really you can break that down into kind of more of a primary team which would would be composed of the athletic trainer in the team position.
You know, that's who you you think.
Remember an athletic trainer has to be under the supervision of a physician.
So typically, that primary team deals with athletic trainers and the team position, but then you have a much larger secondary team, which includes a larger network of qualified medical professionals.
Those can include school nurse, the the athletes, PCP position, more specialists, physical therapists, counselors, EMS personnel, dentists, strength and conditioning coaches, and other coaches and administrators.
The athletics healthcare administrator is a very, I would say, a very important component.
This is the individual who really is responsible for overseeing an organization's athletic healthcare administration and how they deliver their services.
You know, it can a good communicator in that position is is key.
And it's also important to make sure that that athletics healthcare administrator is not a coach or someone that's directly influenced by a coach.
You will want to ensure that you have an individual who will retain unchallenged autonomous authority to determine medical management and return to play decisions and serves as the primary point of contact to assure organizations remain compliant.
So, you know, and again, this may look very different in the setting of an elementary school.
You may not have that key individual, but ideally, having a health care administer, having one point person that is making those decisions is crucial.
Then when we say the other the other the other definition that you might hear is we talk about coaches, we talk about administrators, and and parents and and supports that.
That's generally just kind of referred to as a, you know, as a stakeholder.
When we talk about the the practice of athletic training, you know, what do we mean by that?
I think it's important to define that, but we it's generally described to encompass prevention, examination, diagnosis, treatment, rehabilitation of emergent, cute, subacute, chronic, neuromuscular skeletal, some some big words here, conditions in certain medical conditions in order to minimize subsequent impairments, functional limitations, disability, and societal limitations.
K?
That's that's a lot.
And and you'll see, you know, states regulate the the practice of of athletic training, and they will often define it using some of those those same same areas, but but each state may define that slightly different.
In contrast to what the practice of athletic training involves, If we look at the practitioner scope of practice, that's going to be determined based on several several factors.
K?
That's it really depends on the entry level practice.
You know, the the advanced qualified in qualifications and skills.
Of the of an athletic trainer, state regulation and public protection.
K?
So there's little bit of a difference there between what practice is and then kind of you know, what the scope of practice may be.
Just as an example, you know, each each state will have their own have their own laws on this.
We here in Louisiana, we have the Louisiana athletics trainer trainer role.
And you can see here that Our law defines athletic trainer to be an individual licensed by the board as an athletic trainer with a specific qualification set forth in that statue who under the general supervision of a physician carries out the practice of prevention, emergency management, physical rehabilitation of injuries and sports related conditions incurred by athletes.
In carrying out these functions, the athletic trainers shall use whatever physical modalities are prescribed by a team position or consulting position or both.
K?
So that is what the practice and the scope of the practice of of of athletic trainers are here in Louisiana, and likely your state will have a similar similar definition.
But there's 3 main components.
Practice of prevention, emergency management, and physical rehabilitation of injuries.
Our statute also goes through and defines each one of those.
This is practice of prevention.
They also have a definition for emergency management.
And then physical rehabilitation.
So statutorily, this is the the scope of what it what it means to practice.
So that takes so that's it's important to to to check your your state regulations and your and your laws there, but but there's not a whole lot.
You know, an organization cannot ask a trainer or require a trainer to, you know, perform this type of physical rehabilitation without being under the under the control or supervision of a practicing attorney.
So, you know, the the scope is is limited there.
The scope is limited as to what a licensed athletic trainer can do.
And organizations have to still work within the state law.
So, you know, that that's a that's a key point to make is is that and and and I know those are general principles here, but when you start to look at, well, you know, an institution that maybe is saying look, athletic trainer, we we believe you're the best.
You're actually better than our team position.
So, you know, you make the decision.
You know?
You you don't you don't need to consult with with you don't need to consult with the position at all.
Or, you know, just do what you think is right regardless of what the what the position says.
That is a, obviously, a major problem.
So that is one that is one limitation and and change there.
Another key component is this idea of general supervision.
In Louisiana, that means services furnished under a physician's overall direction and control, but the physician's presence shall not be required during the provision So most of the time you see this, they have to be readily available while the athletic trainer is performing their scope.
So, obviously, you know, a a concern from an organization standpoint is where there is one team physician who is not present and also not available.
And the athletic trainer has has no one to to contact in the event of of an emergency.
You know, that that could present liability concerns for the organization.
As well.
And then a physician obviously under Louisiana law is a person license of practice medicine by the board and the state who's qualified by training experience, supervised an athletic trainer?
There's there's several cases in in and I'm happy to answer, you know, kind of pause and to talk about little bit of that, you know, in more detail or or more fax specific questions.
But really, again, it just pins on on what we're talking about.
But as a group, the organization has an obligation to ensure that coaches understand what their role is, and trainers understand where they fit and team positions.
Understand their roles and responsibilities.
And typically, you see that through well developed written plans.
That's what certainly we would we would hope that that would be there.
And, you know, the the the tricky thing about about policies and procedures is that, you know, it's great to have them.
But the the next thing is you you you sure better follow them if you're gonna have them.
Because when there is a death or a major injury in the lawsuits filed, any good attorney is going to beat you over the head with your own policy if you didn't follow it.
K?
So it's important not only to have one, it's important to follow it, but it's also important to review it systematically, you know, a good way to do that is on an annual basis before school starts again.
Or whatever whatever time period makes sense to you.
But it's important that you review them to make sure that they're still up to date.
They're still best practice and that they're also being followed.
And that's something in practice.
We don't you know, we're it happens all the time in litigation.
We find, you know, yes, it's important.
The the the athletic department found it important to issue this policy that says you do this, but No one was trained on it.
Coaches weren't trained.
There was no communication about it between the trainer or the physician.
And and it really hadn't even been updated in the last 5 years.
You know, would good good attorneys can can take that fact and and turn it into a major liability problem there.
This is there was a a case in 2017, which is probably one of the most ex extensive opinions outlining the duty of an organization of an institution to care for its patients and athletes.
This is in Pennsylvania, and it was The case arose due to a high school, you know, athletes suffered long term severe concussion symptoms.
And and the court hammered away at the athletic association and required an over overarching duty of care with regard to the long term health is highlighted.
So the PI this is from the the court.
This is a quote from the court.
The PIPA was in a superior position to know of student athletes concussion injury rates and the long term medical consequences.
The PIAA and its members breached the duty to provide a safe environment and by failing to provide long term and or complete medical or financial aid for student athletes who suffered concussions while playing high school sports.
PIA's conduct is particularly egregious.
A lot of the fact that its policies and procedures are like thereof, lead students student athletes like planets, inadequately protected from sustaining, monitoring, recovering from brain injuries at a particularly early and vulnerable point in their lives.
Unlike professional athletes who at least have resources to pay for medical care necessitated by head injuries caused during the professional careers, Youth athletes range in age from 12 to 18.
For these student athletes, including plaintiffs, these injuries may have long term implementing effects ranging from an inability to finish their education to loss of memory, physical impairments, and hearing and sight depression, and early onset dementia.
The court goes on to say that despite its knowledge and controlling role in governing member schools, coaches, trainers, and student player conduct, the PIAA failed to timely and adequately impose safety regulations and post concussion protocols governing this health and safety problem.
The court goes on to to kind of announce this duty that the association had a legal duty to exercise reasonable care towards the student athletes under its authority and that that duty encompasses the duty to exercise reasonable care for the health and safety of student athletes.
And they bullet help each one of the the duties that the the athletic association reached.
They failed to require an enforce proper screening, you know, on the front end.
They failed to fully educate the athletic departments and athletic trainers regarding the concussion diagnosis protocols, providing ongoing education with parents to certain athletes.
They also failed to provide adequate medical personnel trained in concussions or adequate medical equipment for use by team physicians and or athletic trainers or concussion diagnosis.
They failed to provide proper plating for athletic injuries and emergency situations that may arise in the context of practices or athletic events.
Prioritize the safety culture educating student athletes on the importance of warning signs and the severity of concussion conditions.
They fail to provide consistent non going warnings of these long term risks.
Provide they fail to provide a safe plain environment.
And they fail to create, implement, enforce immediate diagnosis protocols through the use of trained medical personnel.
Media access based on testing, a comprehensive sideline testing for head trauma, director indirect for continuation of practice play.
They also failed to create, implement, and enforce proper return to activity protocols after concussion diagnosis through medically supported stethylized conclusion protocols implemented by medical professionals training concussion.
And they even went as far to say that the the association failed to provide adequate medical financial resources or otherwise, inform or educate student athletes and their parents regarding financial resources.
And finally, the association failed to provide resources and recommendations for follow-up medical care and assessments.
This is a laundry list of duties that this association was found by Gorton, Pennsylvania to to violate.
So in terms of defining your standard, you know, the the the proper standard of practice, this is a good list to work from.
This this list, you know, proper screening, you know, if your organization, who is going to be responsible for making sure that every athlete before they even try out has been properly screened.
Who is that individual?
You know, is that the athletic trainer?
You know, who is going to govern, who is going to ensure that these strength and conditioning programs are adequate.
Who is going to be responsible for monitoring those activities while they're in the care and custody of of our institutions and our schools.
This goes through a laundry list of of of items that serves as a pretty a pretty good list to to start from when you're when you're putting together a plan.
I mean, emergency action plans.
I mean, there's You know, Ray I would say is probably 40 years ago, may not have really existed, but, you know, they are absolutely mandated.
And so who is responsible for preparing that?
You know, who is who is responsible?
I mean, you've gotta train the stakeholders on that as well.
Having a policy is is, again, great.
But if the coach who doesn't know how to use it, doesn't even know where any of anything is or what the plan is, then it and it's gonna be ineffective.
So good communication and really trying to identify where the different areas are, where there's potential potential responsibility.
Another important case that I think is is from a legal standpoint, you you know, you may not find it as as interesting as I do.
But, you know, in terms of of med mal, which there's certain medical providers that are identified by each state that are covered.
For a mid mouth a mid mouth claim.
Athletic trainers here in Louisiana do not do not, in and of itself, by their certification, necessarily qualify as as a a license provider.
What the and then what that means is that the they are not given the multiple protections that that providers are given by the medical malpractice act.
So this case was 2004 case, 2 lane student, athlete, a tennis player, filed suit against Tulane, and also the athletic trainer, for improperly diagnosing and treatment of her foot injury while she was playing.
Her career allegedly was permanently ended.
And Tulane argued that the case falls under the medical malpractice act, but the court, an extensive analysis of athletic trainers, found that in the case at hand, the trainers did not qualify as healthcare providers.
Reference was made to the list of providers in our in our malls and different statutes that were governing athletic trainers.
So while physical therapists would be covered, athletic trainers are not.
And obviously, if an athletic trainer is also a physical therapist than they would be covered there.
So that's an interesting when you talk in terms of liability of a team physician versus a trainer, you know, one may have certain protections that the other does not.
And so that's something to to keep in mind and and to make sure it's being considered by the organization.
Bryce, is there any any any other questions or anything that has has come up here.
Not yet.
But if anybody has a question, feel free to raise your hand.
I have a couple of questions.
It just kind of come to mind that was like, one is on the case you're seeing right now.
I know that it's fairly obscure and and and at least for an athlete trainer in Louisiana, I'm I'm there is a process where the athlete trainer can apply under the medical deck under that provision of medical malpractice to be in that capitation.
So that means I think it is now it's half a1000000.
Is that correct?
What the capitation is for for medical malpractice versus unlimited amount of money that falls within that.
Is that is that correct?
Yeah.
The the other yes.
It it is.
And and that number I I know each year there seems to be legislation proposed to adjust that number.
But one of the key protections that the physicians licensed physicians have under the medical malpractice act is that they've gotta go through a medical, you know, review panel first.
So, you know, that's typically where the majority of suits issues are resolved there, and it's really more kind of a a judged by another physician, and there's an attorney on the panel.
And so there's certain procedural protections that are afforded in unless that panel concludes that standard of care was likely not met, then there is no basis to file a lawsuit.
And so there's that that is a pretty significant protection in addition to the monetary cap.
That's placed there.
So would it be I guess, in journaling speaking, it would be safe to assume that if the organization, whether it's a high school or where you may have, you know, you have supervision.
But if it's not in writing, whether it's an MOU, that the organization has.
It says, hey.
This is specifically the person.
It needs to be if there if the if I'm working at a high or junior high, And as an athletic trainer, then I the physician needs to have some type of MOU Is that correct in order to avoid being in effect?
So it could potentially be under here other otherwise, not being cavalier, not just saying, oh, I have something in writing.
It has to go through it has to be a part of
the organization.
Absolutely.
Absolutely.
The organization is going to want to have that in the event.
If something happens.
And, again, you know, you know, I I would love to work on a potential audit with you or something like this to go around every high school, even just picking oh, just Baton Rouge.
You know, and just to try to get a survey of the arrangements, how many how many schools in Baton Rouge, public, and private have a a written agreement with a licensed physician and also a written agreement with an an athletic trainer.
You know?
Yep.
You know, I would love to to to look into that, but I think it's very important to have that.
I mean, or else, you know, if you're the the athletic trainer, you're potentially not really working under the supervision of a of a physician.
And, you know, and when you talk about a physician and an athlete, you're talking about the the patient you know, physician patient relationship there.
I mean, that that's what you're that has to form somehow.
And if that the the the physician can't just be out of the state or in Shreveport and you're here and, you know, there may not be protection there.
You know, and and actual duties that are owed by that physician to that patient yet, because that relationship maybe hasn't established.
And so you know, setting making sure that there really is oversight.
Again, when you think of a context of LSU, you know, there's There's a lot of licensed positions, and they might have a whole orthopedic practice that is con that has a contractual arrangement to provide us for all the balance sheet team.
Then they also have employees that service as as trainers.
And then they have student trainers that have, you know, certain restrictions and and what they can and can't do because they've gotta be under the supervision of a practicing a practicing athletic trainer, as I understand it, and and not just any athletic trainer, someone within the program that they're studying from.
And so there's layer on layer.
But to your point, I would strongly recommend that schools and organizations have a very have a formal arrangement, not just to say you have it, but mainly to outline what the expectations are.
You know, are you are you win win or what is your responsibility versus your responsibility you know, are you going to be at games?
This is what's expected.
And and I would imagine farther away from from a power 5 school, the professional level, you know, payment is probably not being provided.
It's for for the for the physicians.
It's probably the main source is is potential referral.
You know?
And so that that could be tricky as well.
And then the other the other complexity of that that I think everyone would certainly understand is this is an outside physician who might be volunteering, who doesn't know the the student athletes very well.
We've not seen them probably on a regular basis.
It probably has a better relationship with the coach.
But if there is an agreement, it's important that it's outlined there that the the provider has full autonomy to make medical decisions and that there is no, you know, kind of, you know, team physician, even the name alone suggests maybe that there might be duties owed to the team or the institution or the coach instead of the typical, you know, patient relationship there.
And so that document I would expect to lay out what what this means and what it doesn't mean.
You know, this this doesn't I'm not going to base my, you know, medical judgment on what the head football coach at this high school wants.
I'm not gonna do that, and the schools should say absolutely.
We're not expecting you to.
In practice, as you can imagine, that's probably oftentimes difficult.
So so even in norms, even if having and I I can't think of the the legal term for this, but almost like hey, you see, like, a societal norm in an or a regional norm just by the fact of saying, hey, this person is the team they're saying their team position.
Everyone calls them a team position unless that they have to have something in writing whether it's a one sentence MOU say, I'm agreeing to do the b of service of you know, is that you wouldn't do that.
But if it's in writing, then there is a formal association.
Otherwise, that puts the the other providers who work under physician direction at a significant liability risk.
Sure.
Yeah.
I I I fall fully agree.
I mean, I I think that agreement should also say that that you're taking no responsibility to oversee our professionals who are who are gonna serve as our athletic trainers.
Now you're agreeing to do that and to provide that to make sure that that link is there for the trainers as well.
And again, personality comes I mean, that may and they say, look, my kid goes to the school, and so I'm I'm gonna come to the games.
I'm there.
If something happens, I'm I'm happy to do it.
But, you know, and a lot of times, I think they might say I'll do the physicals on the front end.
I'll be happy to do all of that if you refer them all here, but the problem is is that when that physical is done, the information that they're receiving from the student athletes, I mean, that there is a duty to act there when you have the the patient relationship.
Once that's formed, if they tell you that their family has, you know, a pretty detailed history of of hard issues, You know?
What do you do with that?
You know?
How do you communicate that to the trainer?
You know?
How does that how does your health care team the idea of a health care team communicating that?
When someone says I'm just feeling like my heart hurts.
What do you what do you mean your girlfriend broke up with you?
Are you having significant significant heart issues?
Oh, well, I see the chart now here and I see this.
It says, this is a major concern.
I need to contact the the team physician immediately.
You need to stop practicing right now because of this this this unsafe conditioning exist.
You know, there's there's I think of the written agreement forces everyone to come to the table to say, well, I didn't understand that I was overseeing these trainers at this high school.
I barely even see these I don't know these people.
So real on all those lines, I'm gonna ask one quick question, and I'm gonna get to Eric because, you know, he's from Kentucky as question.
And anybody else, like, from pencil if you're from Pennsylvania, definitely wanna hear from me because I related to this law, Arizona, what some nuances are is what if you what if the athletic trainer goes to school and say and says, I need to have a written articulation, some type of form and and they would send the email, say, to the administrators, and they refused to do that.
Is there a recourse?
What what what as a protection because now the school isn't allowing that to happen, is what does that look like or potentially the ramifications of that.
Yeah.
I mean, I I would I think the ramifications are for everything, you know, everything that we're talking about is that you don't have a clear delineation of responsibilities.
And, you know, I think that's a that's a that's a that's a major concern.
I I think from a if you're working with the orthopedic clinic here, I mean, I would imagine that the orthopedic clinic of their providers that are within that practice have a strong interest in ensuring that there's written documentation that for for coverage and insurance coverage and malpractice claims.
That it's not just, you know, you going out there and rendering, you know, medical services, you know, under their name, it could potentially subject the entire practice to to be liable later.
So, you know, I would strongly I'd probably say, look, I'm not gonna be able to serve in this capacity if if we can make sure that we we we really setting all of these out in a written you know, it would it would seem strange to me why they would not maybe want to enter into some kind of formal designation of that instead of just leaving it to well, I guess we'll see.
We'll kinda see how this goes.
So if it's a full time athletic trainer where they've been hired by the school, they don't have anything, and they approach this, this would not be grounds for and and and, again, this is generally speaking.
This would not be ground to the thought that they would be dismissed or fired for not refusing to perform duties because they don't have a lice they don't have a a formal supervision.
Is that
Yeah.
Yeah.
It's a good regional big that you I mean, I I don't I don't think the schools I I think typically that in practice, what's happening is the athletic trainers know way more than the principal who's been there for 30 years.
And they've taken your class in classes and and institutions, and they say, we absolutely need an emergency action point.
Well, if there is a running there's no one there's nothing that's saying that in your position as a full time athletic trainer.
You're the one responsible for for, you know, overseeing this or putting this together.
You know, I think that that's probably how it's happening in practices that they're telling the school.
We need to do these things.
The worst thing from the trainer standpoint is that something happens, and the school says, why do I why do we hire this guy?
You know, we thought he was gonna do all of this.
We thought he was responsible for this.
We thought he was gonna report to the team position all of these things.
And then the the trainer saying, well, I didn't you know, You never told me that.
I didn't have anything outlining my responsibilities and duties.
I I think I think the the team wide approach of you you have an administrator, an organizational representative that is responsible from the school that also is communicating with a trainer, and and also the position is by far the best way to go.
And I don't think that any it's ever You know, I'm I'm gonna be terminated if I don't have this necessarily, but I I think I I think you definitely want that.
And all parties should want that.
Great.
Thank you.
That was a really gotten a whole deeper level there.
Eric, you you've got the mic.
Go ahead.
So
I am in Kentucky, and I I know we're state practicing very well as I help write some of the new language.
But a consistent question that's come up in some of these earlier presentations that I think should be asked, and and I think some asked in the heat and stuff is, does an organization have the ability Like, if I'm working for a high school and we've got our agreements in place and we've got the physician, do they get to limit my scope and ability and rendering care with best practices.
And what I mean by that, which commonly comes up is doing rectal thermometry, which for an exertional heat is the gold standard.
It should be done.
Needs to be done, but some of these school administrators get squeamish when a healthcare provider who's trained, and we know it's the best standard, they're gonna do that on a minor.
And they sometimes will I've had athletic trainers say, well, my school board says, I can't do that.
They've sent me a memo.
They don't want me to do that.
But my practice act says I can.
It's within my scope.
How do you respond to that?
Yeah.
That's a that's a tricky.
I mean, that that that's certainly a a delicate situation.
But, you know, I I think from a school standpoint, I would be very concerned about limiting any sort of best practices of a provider and tell them what they can or can't do.
You know, I can understand that that practice may be you know, it may seem a little little strange.
But, you know, from a from a organization standpoint, if you don't do that.
If you don't do what's best practice in the standard of care, you are doing something below the standard of care at the organization's direct instruction.
That's that's a plan to an attorney's dream situation if there was an issue that resulted from that.
You know, let's just say that the school said, you should not do any of this this concussion protocol.
You know?
You you should not do this.
We don't like that.
We don't really believe in the science behind that.
It's uncomfortable makes someone sit out for a half or whatever it is.
You know, I think the athletic trainer in the position would have an obligation to to to push back into to say, look, this is weird.
We we we have an obligation to move forward with this and to do this.
This is the standard of care.
In fact, to not do it.
May subject us and the school to to liability.
We would love for, you know, to talk with your attorneys about this school.
I mean, there may be one way to approach it.
To say, look, I I can understand where there's some some concerns there.
But, no, I don't you know, I I think I think the practice of of of athletic trainers and of physicians is best governed by the physicians.
And athletic trainers.
And, you know, and it's also if the state has this, this is the standard, and it says that this is okay, you know, I I think I think that's typically the last, the lagging part.
If the state says the standard of care, that's included.
Or the regulations say that this is this is an an allowed.
I mean, I would be hard pressed to to try to restrict the athletic trainer or or physician to to perform anything like that.
Eric, is that kind of answer you?
I mean,
No.
It's
a fantastic question that I'm not sure any court has has necessarily know, none none that I'm aware of.
But Yeah.
None of that is a fantastic question.
And when I'm I would imagine if it had already been litigated, it will it will soon.
I just know that that comes up, and Ray has heard it many times in conversations.
And I know in our most recent revised statute, we stated that under invasive procedures, which that rectal thermometry is included, states that in the event of potential death, life threat, significant more morbidity or mortality that, you know, these can be performed on a minor without parental consent.
So that's outlined in our statute, like you said, state state, but I know that's a constant thing that comes up, and I have heard and seen that public trainers constantly say, well, my school board says I I can't do that.
So I'm not gonna do it.
I'm like, okay.
Yeah.
That's I mean, I think that's that's It is a it is a tricky situation.
Yeah.
Because I I guess I looked at it as because I'm also in EMS.
You know?
They're not as soon as EMS shows up and does a rectal thermometry, they're not restricting that.
It's a healthcare provider.
You don't have the ability.
But for the athletic trainer that's an employee in the school district, they're like, when I'm their employee, can they set that policy?
Right.
Yeah.
I mean, look, I I think state law is gonna govern.
I mean, I I think, you know, that State law would be the the biggest concern there.
And if you're comfortable that that's provided for it and it falls within the scope of practice, of state law that, you know, I think and and again, I think back to the team approach, I would immediately raise this with a physician who is who is who is who's control and supervision you're under to say, look, I have big concerns about us not doing this.
We, you know, I think we need to do this.
And, you know, I I think we need to go meet with the the athletic director or the the principal and or the school board.
And bring maybe bring EMS with you and bring, you know, other other people who say, this is pretty standard of care.
We understand that it's a little bit a little bit strange.
It seems strange to you, but this is this is the industry.
You know, one thing about our our statute and define an athletic trainer You know, it says in carrying out these functions, the athletic trainers shall use whatever physical modalities as prescribed by a team physician or consulting physician.
Or both.
So it seems to me that, you know, it's really the the physician or the consulting physician that is kind of setting which modalities to that that are to be used You know, it's it's not necessarily saying whatever the the school board thinks.
I mean, just imagine the different.
If the school board was allowed to set that standard, you know, I mean, we we would have a 100 different standards being used, you know, in in in Louisiana alone.
You know?
And so but it sounds like that's what's happening is that's they're just kind of making their they don't feel comfortable with it, and they don't obviously know the science behind it.
So to me, that's more of a a It is a legal concern, but I think once the once the an educational push is there to make sure that they understand why this is done and that EMS does it in the emergency context, I think that would be it should help.
Great question, Eric.
Great.
Thank you, Eric.
I got that was a yeah.
Excellent question.
That's that's a burning question.
I know that David, and we we discussed that some as well just so you all know, and it's a very hot topic.
Next is up Sean Bolen, who's from Georgia.
Sean, you've got the mic.
Thanks, Drew.
Allow me to ask a question.
My question refers to I have a team physician in place.
He's an internal medicine physician here in town.
He does not see pediatric patients at the high school that I'm at.
If a parent disagrees with my evaluation and seeks their own pediatrician or own physician, for a clearance letter or or could we be held liable if there's a disagreement between the team physician, athletic trainer, and the parents' pediatrician were were orthopedic.
Thank you, Ted.
That's a great that's a Sean, that's another great question.
In in this situation, I I I know comes up.
Often.
And it's typically in the context you're mentioning, really, the parent calls the pediatrician who that probably haven't even seen in years and says, we just need a note.
The school says, we need a note.
You know, I think anytime anybody feels like there's an unsafe circumstances situation or an athlete is not quite ready to return.
If you, in your professional opinion, believe that's the case, I think you have an obligation to you know, report that, notify.
From your standpoint, I would, you know, I would not just defer to an outside pediatrician you know, who has not been retained, is not, you know, is not working with the school, and and it may be signed.
You know, it just I would I would stand strong on that, if I were you.
I think, you know, I think to allow otherwise when you in good faith have very serious concerns.
I think, you know, again, from a liability standpoint, I would eat that up on a case if I could get you on the stand and say, I disagreed.
But you know what?
I didn't I didn't say anything.
Mhmm.
You know, I think you go back your obligations, I think you immediately get with the the the physician who may not you know, I think you say he was an internist, maybe.
Yes, sir.
You know, I I think I think between the two of you, you know, I I I would I would work as a team there to say, look, as a policy.
And and and so the other side of this is, you know, you think he's fine.
You think that the athlete's fine to go play but maybe the primary care provider of that athlete, their own provider or a specialist thinks otherwise, I think you would have the same, I think you may be able to defer to that in terms of protecting the student athlete.
So if you're focused on their health and well-being, Then even if you think that the student athlete may be able to go in, if you consider, okay, what happens if they end up breaking their neck because of this?
Or if they drop dead because of this.
I mean, I think we should probably pump the brakes a little bit and be a little bit more more cautious, especially as it come when we're talking about return to play decisions.
I don't think anyone's going to the school or any any of the providers are going to be sued just because a mister Natalie missed a game.
It wasn't in admittedly open a big game for the team and all of this.
I think the self the safety and well-being.
I think that's the trend of where we're going.
I mean, you you you see it on the on on and probably your everyday way more than than I do.
But I just think in the old time, you know, a 1950 football game, you know, spin you know, just that'll buff right out and get back in there.
You know?
I know you're bleeding from your nose and get back in there.
We have slowly started to recognize the importance of of recognizing signs of problems, and then communicating those in a in a in a in a proper way and making sure that we are not putting athletes in some unsafe conditions.
And so I I would my my my recommendation would be to go with, you know, to go with your your feeling.
If you have serious concerns, then stand strong on that.
And if the school wants to say, wow, he's fine.
You know, again, that'd be a field day for a for a good plaintiff's attorney.
If they wanna not take the advice of their athletic trainer?
That's another excellent question.
I think two cases come to mind.
Everybody on the on the here today.
And also for David, one is very, very different perspectives.
And one is, I believe, it's Nat versus Northwestern.
Which the athlete had a, I believe, had a ventricular defibrillator had to be in place and basketball player if I'm if I under if I'm remembering that case correctly.
Anyway, they initially would not allow the athlete to participate.
However, case law came back.
They were doing their due diligence, but they didn't I think because it was not it was a ventricular defibrillator, there was no cases in which there was any risk of injury.
So it goes back to, you know, perceived risk of injury, other cases with that.
So they actually got the the plaintiff won that.
They ended up transferring to a school here in Louisiana.
Didn't qualify one other case, but it was really That's that one case, and then there's in I know Arizona a couple years ago, and I see doctor McCloud on the call on here.
So if you or somebody from Arizona because I don't wanna say it was a football high school football player who had a concussion that was during the playoffs, and The the parents filed suit because they wanted their child to play, and the courts allowed them to play to he could he could play I don't think he played at all, but or it may have been Nick Mexico even.
I would be okay.
Great.
I've seen had that.
I'm not sure what one of the states out there if anybody has any knowledge of that.
But, apparently, what it came up out of it was that they could they the school was doing due diligence for concussion, but some some somehow loophole, they won the lawsuit to actually play.
Now the athlete did not play as a state championship game.
That was really the argument.
Hey.
I have a concussion, but it's his last get the last game that the young man's gonna ever play.
Therefore, by all means, we have to have that you know, it has to happen.
So if anybody has anything on that number that was that went through a couple of years ago, which is 2 different cases, but nonetheless, is going back to what I think the questions that came up, David, and what you said is you have to do due diligence.
You have to follow your protocol.
And do it and go through that whole process.
And it's and it involves having that articulation written in articulation with a physician as physician direction.
Yeah.
No.
That's a that's a that's a that's a great a great a great point.
And I was I was just looking through some notes that I had on a case.
I thought that was very similar, you know, similar to that.
But, you know, he but, look, if if you force the parents to file suit and they go file suit and this kid is allowed by the course, to play, and he drops dead on the field.
Now on behold, you've done your duty and your your professional obligation to stand and make it right.
Now I know in practice that's very difficult to do where you're forcing somebody to file suit, and it seems like you're just trying to ruin the kid's life, and that's how it's presented with all this stuff.
But, you know, I think that's where you stand on your training and your and your feelings of of this.
But you're protecting the school in a in a in a large sense.
You play you are actually, you know, the frontline defense there.
And and the school doesn't even know about, you know, probably about this situation that comes up.
You do, and it's important that you communicate that, you document.
I mean, One of the the tips that, you know, I I would say that and again, I I know attorneys say this all the time.
Document, document, document, But in terms of establishing it, I received a call from the pediatrician for this high school athlete who's indicated and provided a note.
I have, you know, concerns.
I've spoken with the the physician our team position on this.
He concurs and agrees that it's it's concerning to to allow him to come back at this stage.
And so our recommendation and and we we would we're not planning to give him to go ahead.
If that causes an uproar, So be it.
But then you can always establish.
And if the school wants to make that determination, if they call their attorney, they're not gonna they're not gonna go away from your your recommendation.
They're gonna say, don't play them.
You have a recommendation from your god what?
If you don't trust them, you don't believe believe in their assessment.
You're believing, you know, then why do you have a one staff, you know, following the procedures that that you've put in place?
I think you it would go to what you said, like, for high school and school and other organizations is, you know, you wanna if they wanna do that, and it's a very different setting than college or professional, You can allow go ahead and do see that other provider.
It's very different.
But just the entry point back in, as long as you've articulated that and have in writing and consistent policy, okay, we're gonna get a note, but they still have to be evaluated.
They have to still go through a concussion protocol or whatever the return to play pro criteria is and established by the school.
And you put that in play, then there's not a there's not a they don't have a case, a gift set.
As long as you're doing due diligence, The other side of it is is making sure that from a due diligence standpoint that you're not overstepping your boundaries or or or if the physician says, it's one thing to say you're that that, like, the pediatrician, external to your team.
Actually and correct me if I'm wrong, David, It's one thing if he says, hey.
They can play, but don't play versus saying the physician says, don't play.
Absolutely.
Them to play.
That's a very different Very different.
Level Yeah.
Look.
Look.
Look.
Look.
Look.
Right.
You change the facts of that to say, you know, use you know, and, again, when I think about the primary health care team, I'm thinking the trainer I'm thinking the physician.
I think when I say secondary, I'm thinking then, it might be there the primary care specialist.
Let's say a kid goes and sees a a cardiologist.
And the cardiologist says, I have major concerns about him playing with the the heart's heart condition.
You know, you better not, as the as the trainer and the and the team physician recommend that, well, I disagree with him, and I I think Hitesh doesn't know the kid.
You know, he's looking at the big picture.
I mean and I think everyone on this call understands the difference between that.
But I would you know, the the best suggestion, I would I would I'd recommend is to try to include this outside the secondary level as part of the team.
I mean, you want to bring in more providers who are looking that might help make a better decision, but you are not deferring to them in every situation And if they just give you the go ahead, well, it's now their response.
It won't be their responsibility.
It'll be your responsibility, and you'll be the one that's deposed.
And you know, it it's it's gonna be very uncomfortable if you just do the easy thing to say, well, if someone else said that, no.
You know, you are qualified.
But if again, if you try to include everybody in that, but also focus on protecting the student athlete, you know, protecting you know, their best interest.
Will will something happen?
Will they probably be okay?
Probably.
But if if it isn't, which, you know, it it it it can happen to anybody at any time with without any warning.
But if there's any warning, you better you better take reasonable caution there.
Especially for schools where whether it's a if I'm correct, it's private or public school.
The participation in athletics is not a right.
It's a it's it's a it's a privilege.
So that and and the courts are still doing that very well in terms of right versus privilege.
So the right of that of the the athlete is that we as a provider or regard any provider They're right is you're going to do due diligence as a provider.
And it might not be the most level of care, but you're doing things consistently based on what your abilities and needs are.
But you still need to practice within the law and providing that.
It may not be what everybody you know, you may not have a trailer or whatever else it may be, but your deal is doing bay the care you need to and doing due diligence versus the other way around.
That's right.
But one last quick question.
This has been a fantastic discussion, David.
So What would you say?
And you alluded this earlier in the presentation.
The last question is, if I'm if you're on one side of the of the lawsuit, and you're representing the plaintiff, and I'm the defense.
What's the 1 or 2?
What's the you see as the top 2 questions or one two areas you're gonna ask to show evidence of.
Like, the first thing that may come out the gate is proving that the that the that my eye as a as a provider would be negligent.
I wanna see.
The first thing I wanna see is every single policy in place.
I wanna see the policies and procedures.
I wanna see the certifications.
I wanna see all records and logs of every time that you check the equipment.
Every time you ran a driver on, every time what education sessions did you have?
Oh, but but the policies.
Because if I can in today's world, if if the institution and the organization doesn't think it's even serious enough to put a policy in place, then it's it's you know, that talks about the time and reviews and all that.
I I we're going to wear them out with all of the example policies that are out there.
We're gonna go to the the, you know, the the trainers associations and pull the great literature there and say, did, you know, this is this is becoming the standard of care mean, and now it's becoming against the law to not have an emergency action plan.
You know, I mean, that's I would imagine most states have adopted similar so much that you.
But if you're off school in Louisiana, I'd like to see that when you I'm I'm sorry.
You know, attorney Castle, are you telling me that your client has no emergency action plan, and my client died, but you're I've I've just asked you for maybe you misunderstood.
I'm just looking for an emergency action plan.
And you're telling me your client doesn't have any.
Well, let's you know, I feel pretty good about our chances of of hammering of hammering.
Now when you send it to me and it's robust, you know, the next question would be, okay.
I see that you the policy says this.
Who is responsible for this?
And and and look, their good attorneys will make, you know, a mountain out of nothing when someone maybe a a step was missed.
But having a policy showing that you you know, that you that you reasonably followed that and you've you've updated that.
Now their challenge is because we're a middle school, And, you know, RayCastle happens to run our program, and he's the best around.
But because his, you know, kid goes to those school, don't have the resources to have what LSU has, so we're not gonna be measured up to to the standard of LSU.
But the basics are you can still save a life.
You didn't require the most equipment.
I think it's one that we caught during this whole this whole description here, and it goes down to 3 things you just hid this.
It is training and documented your training, you have your product would go back to your protocol, your policy procedures, and are you documenting it in with a couple presentations already that showed that that in cardiac arrest, hestroke.
You didn't follow your protocol.
You didn't show your adequate training.
You didn't do you just didn't follow that.
You you had a good plan in place, but you didn't deliver on the plan.
And or there was no check marks for that.
So
Yeah.
Ray, there there was a case in Louisiana that was it's very disturbing.
It's I'll I'll I'll I'll I'll share it with but it's essentially, the description of it was you know, really what happens when you have no when you have no plans in place, and, of course, now that I'm I'm mentioning it to you.
So it's Williamsburg, the board of supervisors.
And this is a good one to end on, though.
But this is a 2014 case here in Louisiana.
Where the the court of appeal upheld the jury verdict of nearly 2,000,000 to the minor child of a grambling basketball player who collapsed while on an outdoor team run and later died as a result of a heat stroke complications.
Yep.
No athletic trainers were present during the run.
When Mister White collapsed, it took 15 to 20 minutes for a trainer to respond.
The trainer who finally arrived had failed her boards and was uncertified.
Expert testimony provided established that Mister White would have survived, had the trainer been on-site, recognized the signs of a heat stroke, and immersed white in an ice ice bath within 10 to 15 minutes.
The jury found scrambling and its staff 100% negligent and the Louisiana 2nd Circuit Court of Appeal upheld the verdict.
So you wanna see what it looks like when you don't have anything in place, and you don't follow those.
If you do have those, I'm not saying Gremlin didn't.
But to me, that is, you know, to to have nobody available for 15 to you know, 10 to 15 minutes.
And then when when someone shows up, they're they haven't they haven't even been you know, they're not even qualified to do it.
Coaches training.
They didn't have they probably didn't have documents.
I mean, the coaches weren't trained in the absence of that.
That was not existed I'm I'm pretty if I recall that case Yeah.
They didn't they didn't activate it.
They didn't activate it well within that middle of the day.
They were running on asphalt.
A little familiar with that case.
But, yeah, that's a that's a good one to end off on.
So
Not a positive note, but not not a positive note, but You gotta you gotta take some action.
I mean, you gotta be prepared.
It's going to happen.
You know?
And if you're in a smaller school in middle middle school, you know, being that leader of change, being that person that says, look, you know, I attended this conference and and and I saw this, and I've shared some resources.
I've got some resources from a buddy in Georgia or Kentucky.
You know, you can effectuate that change, which which could save a life instead of you know, being a headline or, you know, losing an athlete on your watch.
Yep.
Being exclamation versus an explanation.
Okay, man.
With that.
David, this has been fantastic.
I think this was a I mean, what a way to end the symposium and wraps everything around Everyone, thank you for attending today.
It has been this was very enlightening.
Number of different levels regardless of setting.
Very applicable.
And thanks again, David, for your time and your expertise, and this is a very impactful presentation for all those attending across across the country.
Of course.
And if there's any you know, anybody has any questions that my email contact information is there, it should be Ray on the website and everything as well.
But I'm happy to happy to discuss anything further.
And and Ray, as always, let me know if you need anything, and it's always a pleasure talking through these subjects with you.
Alright.
Great.
Thank you again.
Everyone, appreciate your time being here.
Don't forget to fill out the evaluation forms.
It's been a fantastic symposium, and this was the in the draw for an excellent note.
Thank you again.
You all have a great one.
Have a good one.
What Is An Organization's Responsibility For Establishing Scope of Practice for Coaches and Healthcare Providers?
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