Legal Issues in Sports Medicine
Aaron Rubin
INTRODUCTION
The advice of an attorney should be considered before making any legal decisions.
Sports is a microcosm of society.
There are rules of sports and society that must be created, interpreted, and, at times, debated.
Medical practice in sports holds no exemption from any other medical practice.
Legal issues present in the area include, but are not limited to, malpractice, contracts, licensure, insurance, “Good Samaritan” laws, and confidentiality issues (Health Insurance Portability and Accountability Act [HIPAA] and Family Educational Rights and Privacy Act [FERPA]).
These issues may be complicated by the practice of sports medicine in the public arena and the traditions of team and game coverage.
This chapter is by no means meant to substitute for the advice of an attorney, but is presented to draw attention to potential legal issues that may arise in the practice of sports medicine.
DEFINITIONS
Law: A body of rules or standards of conduct promulgated or established by some authority.
That which is laid down, ordained, or established. A body of rules of action or conduct prescribed by controlling authority and having binding legal force. The law of a state is found in statutory and constitutional enactments as interpreted by its courts. The word “law” contemplates both statutory and case law (7).
Lawful: That which is permitted or authorized by the law.
Legal, warranted, or authorized by the law. Not contrary to nor forbidden by the law; not illegal (7).
Contract: An agreement between two or more parties that creates legally binding obligations. A valid contract must involve competent parties, proper subject matter, consideration, and mutuality of agreement and of obligation. Contracts are classified in many ways.
An agreement between two or more persons that creates an obligation to do or not to do a particular thing. A legal relationship consisting of the rights and duties of the contracting parties; a promise or set of promises constituting an agreement between the parties that gives each a legal duty to the other and also the right to seek a remedy for the breach of those duties. Its essentials are competent parties, subject matter, and mutuality of agreement (7).
Expressed: An Expressed contract is an actual agreement in terms that are openly declared at the time of making it, being stated in distinct and explicit language either orally or in writing (7).
Implied: An implied contract is one inferred by law to exist because the parties’ conduct or surrounding circumstances indicate a contractual relationship exists.
Bilateral: A bilateral contract is one involving mutual promises between parties.
□ Bilateral or reciprocal contracts are those by which the parties expressly enter into mutual engagements such as sale or hire (7).
Unilateral: A unilateral contract is a one-sided promise where one party undertakes an obligation without a reciprocal promise or obligation being made or undertaken.
Civil law: Body of law that a nation or state has established for itself as distinguished from natural law. Law determining private rights and liabilities as distinguished from criminal law.
That body of law that every particular nation, commonwealth, or city has established peculiarly for itself; more properly called “municipal” law to distinguish it from the “law of nature,” and from international law. Laws concerned with civil or private rights and remedies as contrasted with criminal laws (7).
Criminal law: The branch of law that defines what public wrongs are considered crimes and assigns punishment for those wrongs.
The substantive criminal law is that law which, for the purpose of preventing harm to society, (a) declares what conduct is criminal, and (b) prescribes the punishment to be imposed for such conduct (7).
Natural law: The moral or ethical law, formulated in accordance with reason, natural justice, and the original state of nature (7).
Case law: Law based on judicial precedent rather than legislative enactment. The body of law founded in adjudicated cases as distinguished from statute, common law.
The aggregate of reported cases as forming a body of jurisprudence, or the law of a particular subject as evidenced or formed by the adjudged cases, in distinction to statutes and other sources of law. It includes the aggregate of reported cases that interpret statutes, regulations, and constitutional provisions (7).
Tort: A wrongful injury; a private or civil wrong. A tort is some action or conduct by the defendant that results from a breach of a legal duty owed by the defendant to the plaintiff, which proximately causes injury or damage to the plaintiff. Torts may be “intentional” (when the defendant intends to violate a legal duty) or “negligent” (when the defendant fails to exercise the proper degree of care established by law).
A private or civil wrong or injury, including action for bad faith breach of contract, for which the court will provide a remedy in the form of an action for damages (7).
A legal wrong committed upon the person or property independent of contract. It may be (a) a direct invasion of some legal right of the individual; (b) the infraction of some public duty by which special damage accrues to the individual; or (c) the violation of some private obligation by which like damage accrues to the individual (7).
Negligence: The inadvertent or unintentional failure to exercise that care that a reasonable, prudent, and careful person would exercise; conduct that violates certain legal standards of due care. Negligence constitutes grounds for recovery in a tort action if it is the proximate cause of injury to the plaintiff.
The omission to do something that a reasonable man, guided by those ordinary considerations that ordinarily regulate human affair, would do, or the doing of something that a reasonable and prudent man would not do (9).
Liability: Any type of obligation or debt, fixed or contingent; an indebtedness owed to another party; a duty to pay money on funds owed. An obligation or mandate to do or refrain from doing something.
Broad legal term. It has been referred to as of the most comprehensive significance, including almost every character of hazard or responsibility, absolute, contingent, or likely. An obligation one is bound in law or justice to perform (7).
Plaintiff: Person who brings a lawsuit; the complainant; the prosecution in a criminal case.Related posts:
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