Injured NFL players are treated by doctors employed by teams, but a Harvard study claims there is an inherent conflict of interest in that arrangement, which might mean putting players on the field before they’re recovered. One of the study’s co-authors discusses.
- Glenn Cohen, Professor of Law, Harvard University
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NFL Team Doctors: In Whose Best Interest?
Nancy Benson: No team gets through an entire NFL season without injuries. So when the super bowl kicks off, neither lineup will be completely the way it’s coaches would like. But will there be players on the field who shouldn’t be? Will some be playing even though they’re hurt, risking additional pain and perhaps disability in pursuit of a win? It’s not the player who decides that, it’s the team’s medical staff.
Glenn Cohen: The collective bargaining agreement in the NFL and various side letters require each club or team a board certified orthopedic surgeon, at least one physician board certified internal medicine, family medicine and emergency medicine. And they have to have certificates for the added qualification of sports medicine. In addition, clubs are required to retain consultants in the neurological, cardiovascular, nutritional and neuropsychological field and typically there’s a Head Club Doctor.
Benson: That’s Glenn Cohen, Professor of Law at Harvard University and co-author of a nearly 500 page Hastings Center and Harvard study of how the NFL maintains the health of it’s players. The report is highly critical of how healthcare for players is managed because of what it calls and inherent conflict of interest for team doctors.
Cohen: These club doctors, they’re chosen by and they report to the clubs executive. They’re affiliated with a variety of private practice groups hospitals, academic institutions to other professional sports leagues, but the important thing to know is that they’re selected by the clubs, paid by the clubs, they’re fired and evaluated by the clubs. So the current structure basically forces club doctors to have obligations to two parts – the club and the player, and to make difficult judgments about when one party’s interest must yield to another’s. The conflict itself is pretty unavoidable, as long as the club doctors expected to wear both hats – now some doctors may be better able to negotiate the conflict than others will – but in general a system that’s gonna require heroic, moral, and professional judgment in the space of a systemic structural conflict of interest is one that’s gonna fail.
Benson: Under this structure for example, doctors could feel enormous pressure to clear an injured player for an important game even if his injury could use another week or two of rest.
Cohen: None of what we say in the report or associated publications are a slight against these club doctors. Many of them are extremely good doctors, sometimes the best in their areas where the team plays, what we’re really focusing on is the system – the structure by which this care is provided. Our view is that, no matter the quality of the physician, if you’re putting them in a bad structure that’s gonna result in problems.
Benson: Cohen says most people wouldn’t want to be put in the same situation themselves.
Cohen: When you think about your own physician and medical care you receive from your doctor – when you go to the doctor, you know that doctors not being paid for by someone else, not reporting your health to someone else, not having a reporting relationship or duty to someone else. You have faith in the independence of the medical information you receive. Again, I just ask people to reflect and say – how will they feel if tomorrow they’re employer were to say to them, “guess what guys, as of now all your medical care will be provided by a doctor I chose for you and will report to me and who will answer and will be fired and hired by me”? The problem we feel is clear on it’s face.
Benson: A number of medical fields recognize the inherent conflict of interest when physicians are beholden to two sides, for example in organ transplants.
Cohen: Both law and ethics require two separate care teams in the case when a kidney or another organ is being donated. One to care for the patient doing the donation and pronounce them dead in the case of dying patients and one to conduct the transplant and care for the recipient. If single medical teams served both roles it will face the same structural problem as dual loyalty – to the dying patient and to the patient in need of the transplant. So for example, an individual doctor would swear that he or she is not influenced in declaring a donors death by the desire to get his or her patient and organ. And even though it’d be impossible in any particular case to know whether that was true or not, we don’t take the chance. We split it up, we bifurcate and we want a similar bifurcation in the case of healthcare being provided to NFL players. We want the people who are treating these players, giving them advice, to give them unbiased advice – advice that players can trust – and have a separate set of doctors be the ones who are evaluating them for the sake of the club and advising the club, on whether they should be cut or they should be put back on the field and the like.
Benson: The NFL didn’t return calls requesting an interview and a spokesman for the National Football League Physicians Society turned down our request. However, in a response to researchers the NFL has denied that a conflict of interest exists. Cohen says many players seem to disagree.
Cohen: Lemme just go into the report for a second and tell you some quotes from some of the players we interviewed. This is from a current player that we spoke to – “I do not trust team doctors. I’ve had multiple occasions where I’ve had a team doctor tell me one thing and then I go to have a second opinion and I get a completely different answer. The club doctors have the same mentality as the club itself, more than anything they want a player on the field. I feel like the team doctor has only the best interest of the team in mind and not necessarily the player.” And here’s another quote, “they’re doing and saying what’s best to get you back on the field as soon as possible,” that’s another current player. Now again, to be clear, many of the players we spoke to did not have these concerns – this was not every player we spoke to suggesting that this is a problem – but we do know this is a significantly corrosive aspect of the trust you have in your doctor. And indeed the Associated Press’ survey of a hundred current players in 2016 and when asked whether NFL teams coaches and team doctors had players best interests in mind when it comes to injuries and player health – 47 players out of a hundred said ‘Yes,’ 39 said ‘No,’ and 14 players are either ‘unsure’ or refuse to respond.
Benson: The NFL says the report also identifies no incidence where team doctors acted in contrary to the health of players. But Cohen says examples of conflict exist.
Cohen: One recently reported one involves Ben Utecht, a tight end who retired from the NFL. He recently wrote a book that looks at contentious moments he encounters as he dealt with head traumas. During the 2009 pre-season, he sustained his fifth major concussion, “One serious enough..” he rights, “for a Bengals team doctor to advise him to retire.” Each time, he said that he tried to return the field; he would experience blackouts, headaches and other symptoms associated with post-concussion syndrome. Though unfit to play, he wrote that the doctor declared him eligible to return which allowed the Bengals to release him. He went to court and eventually won a $1 million judgment in lost salary.
Benson: Cohen says the way the league now handles concussions now proves the reports point. The structure of the new system ensures that there’s no pressure to get a player back on the field when he shouldn’t be.
Cohen: As a solution to that problem they decided to have an unaffiliated neuro-trauma consultant, who is not reporting to either team, is not a doctor for either team, either one to make the evaluation. What we want to do is import that same kind of independence to our sphere, and we see actually the kind of system we envision to have continuity with this change that’s been made for concussions.
Benson: The report recommends that doctors who treat players be separated from team control so they have only the players’ interest in mind.
Cohen: Clubs would still receive information about player health needed for their business decisions through a player health report completed by the player’s medical staff in consultation with club evaluation doctors. So we create a new role, called the club evaluation doctor, this person would liaison with the club, they work for the club, and they basically report to the club about the status of players. We have a second set of doctors that we call; player’s medical staff and they would be the ones responsible for treating the patient. Players are to be treated ONLY by the player’s medical staff. Which would have the player’s interest as their sole consideration.
Benson: Injuries in professional football are getting closer scrutiny today largely as a result of the controversy of head injury. Cohen says the structure of physician involvement in concussion treatment is a step forward but he says truly protecting the health of the players will take a lot more. You can find out more about all our guests on our website, RadioHealthJournal.net. Our production director is Sean Waldron. I’m Nancy Benson.