Ethical Question: Who Is Responsible for Athlete at Risk?

To many, the news of the death of basketball player Earnest Killum Monday afternoon evoked images and memories of the sudden death of Loyola Marymount basketball player Hank Gathers in 1990.

The stories appear so similar: young, strong athletes who are seemingly impervious to illness and pain collapsing and dying.

There is more. Both had medical conditions which, doctors said, should have prevented them from playing basketball. Both athletes were at times persistent in asking the doctors that they be given permission to play.

Both resumed playing after a battery of medical tests.

One physician describes these situations as “athletes at risk,” and says the medical aspects are fraught with questions. Who can play and who assumes responsibility for those who do? Once it is established that an athlete has a medical condition that places his health at risk, what is an acceptable risk that would allow him to play. Who decides?

These are questions that sports physicians wrestle with daily. Dr. Milton J. Sands, director of cardiology at New Britain (Conn.) General Hospital, has firsthand experience. In 1990, Sands examined Tony Penny, a basketball player at Central Connecticut State. Sands diagnosed Penny’s condition as cardiomyopathy, the same heart disorder that killed Gathers.

Sands advised the school that Penny should not be allowed to play basketball. Penny wanted to play, sought other medical opinions and brought a $1-million suit against Sands for disrupting his career. The suit was dropped.

Penny was allowed to play and four years later, at age 23, collapsed on a court while playing professional basketball in England. He died.

Sands, when told of Killum’s death, said: “Oh no, not another one.

“I know what it’s like to be in the physician’s position. Right now, he must feel awful. There’s nothing he could have done. The athlete wants to play. In fact, it’s his entire life.

“On the one hand you try your darndest to protect them. On the other hand, (when) you try hard to protect them, you are hurting them because you are taking away the one thing that they care about the most. It’s a terrible situation.

“You are depriving them of something they think is central to their existence. It’s that critical to these folks. They don’t understand. There’s no way you can make them understand. I’m sure that they are very intelligent. It’s just that they have a mindset against physical illness. They feel good.

“We don’t have all the answers. With a 70-year-old person, if we don’t have all the answers, that’s awful. At the age of 20, it’s more than awful, it’s catastrophic. It places the physician in a terrible situation. It goes right to the heart of a doctor/patient relationship, that is: ‘Do no harm.’ ”

Doctors don’t struggle with these issues in a vacuum. There is pressure from the athlete, who wants to play, and there is pressure from coaches and athletic department staff who want their player on the court.

Arthur Caplan, a medical ethicist at the University of Minnesota who advises doctors, says the question of who decides is paramount. And difficult. Ultimately, the responsibility rests with the physician, Caplan said.

“Adolescents are not competent to make decisions for themselves,” Caplan said. “I think that you want to approach the wishes of the athlete with some caution because they are still young adults. You have to think of the emerging competence of the person you’re dealing with. You can’t be guided solely by the wishes of the athlete.”

Caplan suggests that sports physicians speak to athletes alone, away from outside pressures, when determining if the player is ready to return to the team.

A crucial factor in making the decision on who plays, according to Caplan, is to consider the mindset of athletes: young people who feel bulletproof.

“I think (this attitude) is almost unique to the sports culture,” Caplan said. “The invulnerability of the body. You get used to being able to do things with your body.”

Caplan said that diagnostic methods will improve and athletes at risk will be easier to identify. Thus, the determination of what constitutes acceptable risk will come more frequently.

But, no matter how carefully doctors have evaluated the risks, little can be done to prevent a lawsuit. What those in the medical profession hope to achieve is to minimize legal exposure.

This is often accomplished through the use of waivers.

Although Killum did not sign a waiver releasing Oregon State of liability, according to the school’s athletic director, Dutch Baughman, he was given a “letter of understanding.” It listed statements by the doctors who had examined him. Though the letter was prepared for Killum to sign, it is unknown whether or not he actually did.

“We didn’t see the need for a waiver,” Baughman said. “We don’t think a waiver is legally satisfying. We had a sound relationship (with Killum).”

Regardless, such a document could prove helpful to the school in litigation, according to Bruce Fagel, the Beverly Hills attorney who brought a multimillion dollar wrongful death suit against Loyola Marymount and several others on behalf of the Gathers family.

Gathers, a Loyola Marymount basketball star, collapsed and died March 4, 1990, from cardiomyopathy, a heart disorder, while playing in a postseason game.

“The letter is evidence. It could be used in a potential future wrongful death claim by the school to say that Killum explicitly understood whatever risks were listed in the document or would be implied by that kind of statement,” Fagel said. “It simply could help protect Oregon State against any kind of future action by the family on behalf of the kid if something were to happen, because the school could say, ‘Hey, he was told all the risks.’ ”

Fagel said such a document would be of help to Loyola in its defense: “If Loyola had a document from Hank Gathers saying that he understand all the risks that had been explained to him and that, knowing those risks, he choose voluntarily to play basketball, then it would be difficult for me to prove that they should have prevented him from playing,” Fagel said. “But in the absence of such a document, one of our charges has been that Hank didn’t know anything. That it was OK for him to play and he was never told of any problem.”