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Med Law (2011) 30:1-22 Medicine and Law

©PROBOOK 2011

Health Law

HEALTH AND SPORTS LAW COLLIDE: DO PROFESSIONAL ATHLETES HAVE AN UNFETTERED CHOICE TO ACCEPT RISK OF HARM?

Ken J. Berger*

Abstract: Is there a positive duty at law to prevent an athlete with a serious medical disability from performance, despite the player accepting the risk? Is high risk of serious injury or death in the athletic context equivalent to euthanasia? Euthanized death is a predictable consequence of deliberate action. Accepting high risk in the athletic context is distinguishable.

Athletes are often more likely able to make voluntary decisions without the burdens of incurable pain and clouding medications. Should policy reasons, nonetheless, preclude athletes from accepting high or uncertain risks of serious injury or death? What standard of medical certainty or legal certainty is appropriate regarding the "right to risk"?

The higher the risk of serious injury or death and the less the medical uncertainty the more tort law might trump contract principles. In contrast, medically certain outcomes are easier to knowingly and voluntarily assume by way of contract. Waivers are contracts and present a conflict between a person's rights to have freedom to contract and negligence. Contracts shift the risk.

An athlete can be disqualified to avoid a significant risk of injury that cannot be eliminated through reasonable medical accommodations. The problem is that physicians tend to be conservative and without any input from informed athletes, many otherwise disabled players would be refused participation, albeit with a high risk.

If an athlete is able to seek medical treatment that reduces the risk and does so, an athlete's will to return should not be ignored. The team

Faculty of Medicine, University of Toronto, Canada, 360A Bloor Street West POB 19024, Walmer RPO, Toronto, Canada, [email protected], medicallegaladvocacy.com

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must substantiate the restriction by justifying a relatively certain and substantial risk. An athlete may agree to accept high risk of serious injury or death through a contractual waiver to insulate others from liability in negligence. Independent legal advice and advice from medical experts ensure that such waivers are legally enforceable.

As medical law has broad application, dealing with improving the rights, rules and policies of health care as it relates to the use of advanced medical technologies in potentially vulnerable persons and consequently the right to accept risk, is as important both evaluative and meritorious exercise for all health and legal systems throughout the world.

Keywords: Health Law; Sports Law; Waivers; Torts, Assumption of Risk

1.1 APPLICATION OF PRINCIPLES IN FORM OF HYPOTHETICAL EXAMPLE

The main issue is whether the Detroit Red Wings Hockey Club or their physicians ("Red Wings") had a positive duty at law to prevent a player with a serious medical disability from returning to play despite the player agreeing to accept the risk.

1.2 THE FACTS OF HYPOTHETICAL CASE

1. The respondent, the Detroit Red Wings Hockey Club ("Red Wings") are a professional hockey team in the National Hockey League ("NHL"). IF was at all material times a six-foot-five, twenty-five year old, defenseman on the Detroit Red Wings.

2. JF died from a cardiac arrest during a National Hockey League game. This was not his first cardiac arrest. He survived the first cardiac arrest, after immediate CPR and defibrillation from an Automatic External Defibrillator device (AED) applied to his chest by his team physicians.

3. JF was found to have a pre-existing (congenital) heart abnormality during a pre-season physical in September 2002. After its discovery JF told the media, "I wasn't scared about the abnormality. But I was scared about not playing

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hockey again." Further testing, back in 2002, revealed that he was fit to play, but he was asked to sign a waiver.

1.3 THE ISSUES

4. The broad issue in this appeal is when the risk of serious injury or even death is too high despite the signing of a waiver to be considered unacceptable. Further, can a professional athlete accept a high risk such as serious injury or death? Waivers are contracts and present a conflict between a person's rights to have freedom to contract as they so desire and negligence, that one should be responsible for negligent acts which cause injury to another.

5. Soldiers go to war and the family is barred from suing because death is an accepted risk. Evil Knievel did his dangerous stunts despite high risk of serious injury or death. Why should professional athletes not make their own choices? Why should disabled athletes like JF not have an equal opportunity to practice their profession and have a "right to risk"? Why should he be prevented from playing with a congenital heart disability especially if there are methods of treatment to reduce risk? How does advanced medical technology or treatment affect a player's rights to accept risk?

6. For policy reasons, at the far end of the spectrum, society may not want to go as far with the exercise of individual autonomy as euthanasia in the Netherlands. Euthanasia is the deliberate putting to death of a person after voluntary consent. The goal is to terminate the suffering of a person from an incurable disease. How far can individuals go in the athletic context before society will intervene? Is high risk of serious injury or death in the athletic context equivalent to voluntary euthanasia or are there differences? Euthanized death is a predictable consequence of deliberate action. Therefore, it is easily distinguishable from the sports context where athletes accept high or uncertain risk of serious injury or death but it is not deliberate action with certain death. Athletes are often more likely able to make voluntary decisions without the burdens of incurable pain and clouding medications that can affect the voluntariness of a terminally ill patient's consent. Should policy reasons, nonetheless, preclude professional athletes from accepting high or uncertain risks of serious injury or death?

7. Advanced medical technologies are allowing athletes back more quickly from injury or illness, in a greater number of circumstances. From NBA

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basketball players like Alonzo Mourning's return to the National Basketball League after a kidney transplant to JF return to the NHL. What standard of medical certainty or legal certainty is appropriate regarding the "right to risk" and what principles of law should win: contract principles or tort law?

8. The higher the risk of serious injury or death and the greater the medical uncertainty the more tort law might trump contract principles. In contrast, less risky and medically certain outcomes would be easier to knowingly and voluntarily assume by way of a contract that waives liability for negligence. That does not mean that tort law should trump contract principles whenever there is either a high risk of harm or death or when it is not medically clear that there is no high risk of harm or death. The absence of any foreseeable harm is complete safety. But all of us would be in strait jackets. Cigarettes are harmful, but they remain on the shelves. Athletes knowingly engage in sports that may have a reduced life expectancy and quality of their lives on a daily basis; weightlifting, boxing, and race car driving are typical examples.

9. Society wants individual autonomy and less paternalism, but it also wants individual protection from foreseeable harm using adequate means. How can courts resolve this inherent conflict among different philosophies? Tort law is a means of preventing harm through deterrence and victim compensation, but contract law does not eliminate all means of protecting an individual from harm. The benefit of contracts and waivers is that it respects an individual's inherent autonomy, provided they are truly voluntary. Contracts just shift the risk. A player can still purchase disability and life insurance or obtain assistance through the NHL collective bargaining agreement.

10. The narrow issue in this appeal is the liability of the Red Wings for JF death and whether the waiver signed by JF exempts them from liability. It depends on the context, the circumstances, and the balancing and addressing of a number of sub issues:

Did the Red Wings team physicians owe a duty of care to JF? If a duty existed, what standard of care is required in the circumstances? Was the standard of care breached? If there was a breach of the standard, did it cause JF death? Was the death too remote to extend liability? Did JF voluntarily assume the risk? Was JF contributory negligent? If the Red Wings were liable, can they rely on the waiver as a contractual defense to the tort claim?

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11. In terms of analysis, the legal issues apply to all different legal systems. The arguments on the issues will use Canadian common law principles to try to resolve the dilemma that this legal problem creates. Equally well, civil law in non-common law jurisdiction would likely use its civil codes to resolve the very same issue, however, the same general principles and policies likely apply.

1.4 DUTY OF CARE

12. A duty of care arises when there is a relationship of sufficient proximity. The Supreme Court of Canada has adopted the two part Anns' test to establish when the law will recognize that parties are of sufficient proximity, to find that there is a duty of care.

13. The main issue as far as the duty of care is concerned is whether the Red Wings had a duty to control the conduct of JF by preventing him from returning to the ice. This action, as alleged by JF, is not based on negligent conduct {misfeasance)., but a failure of the Red Wings to take affirmative action, or take positive steps, {nonfeasance) to prevent harm to JF.

14. In fact, the action is not based on risk created by the Red Wings (either negligent conduct or a failure to warn), but rather is based on protecting JF from something intrinsic to him: A pre-existing congenital heart disability, that he knew and appreciated the consequences of, that increased his own risk of serious injury or death.

15. The common law was reluctant to extend the reach of legal obligations to affirmative action and protection because of a philosophy of individualism. Negligent conduct creates risks and makes the defendant's position worse. In the case of inaction or a failure of affirmative action, a person has merely failed to possibly benefit a person by not interfering in his affairs. In Osterlind^ the defendant rented a canoe to drunken people and had no duty to refuse because they were drunk or rescue them when they were in danger.

16. However, due to an increased sense of social obligations, there has been a growing group of special relationships, which import an obligation to engage in positive action for the benefit of another. Today, there is a duty to rescue

1. Arland v. Taylor, [1955] 3 D.L.R. 358 (Ont. CA.). 2. Osterlindv. Hill, (1928) 160 N.E. 301 (Mass.S.C).

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when one innocently or negligently created a perilous situation, physically worsened a person's position, denied the person other rescue opportunities, or induced the person to rely to their detriment. Normally, there is some element of control or economic benefit to the person as a result ofthe relation, which justifies the creation of a duty of care. In Bain^ the court found the teachers liable in nonfeasance for failing to take positive steps to protect students under their control when a 19-year-old learning disabled child fell, on a forestry tour, on a mountain. However, in another case the court found no affirmative duty for the parents to control a 16 years old's snowmobile driving. The 16-year- old drove 40 miles per/hour and one person died, another was seriously injured. A duty to take affirmative action has been found in the social host's liability, because of an inviter-invitee relationship. In Crocker^, a duty of care was established to control the conduct of a drunken competitor and remove him from a downhill skiing competition.

17. Do physicians have an affirmative duty to protect patients from their own foolishness or bad decisions? If physicians do not have a general affirmative duty of protection, then, should team physicians or professional sports teams have an affirmative duty to protect their players from their own risks?

1.5 STANDARD OF CARE

18. What standard of care should be applied in the circumstances of professional hockey players when they assume the risk of harm? Should the standard of care be lowered because ofthe assumption of risk?

19. Negligence assesses liability on the basis of a breach of a duty of care arising from a foreseeable and unreasonable risk of harm to one person created by the act or omission of another. Negligence arises when a person fails to safeguard others against an unreasonable risk. In Parish the court looked at standard of care of an employer with regards to a particulariy vulnerable employee. The employee had only one functioning eye. The employer had knowledge of the employee's medical disability. The frequency of injury was very low, but the seriousness ofthe consequences of failing to provide protective safety goggles was catastrophic. The standard of negligence does vary depending on the circumstances.

3. Bain v. Calgary Board of Education, [1994] 2 W.W.R. 468. 4. Crockerv. Sundance Northwest Resorts Ltd, [1988]1 S.C.R. 1186, [1988] S.CJ. No. 60. 5. Paris V. Stepney Borough Council, [1951] A.C. 367 (H.L).

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20. The main issue is what standard of care to apply in professional sports when athletes accept risk of harm? Does modifying the standard from a subjective player to an objective one, assist the court in applying the standard of care to sports or should negligence law even be applied? If negligence law is applied, is the 'reasonable person standard', whether subjective or even objective, too easily breached?

21. In Zapf̂ , the defendant appealed the verdict of the trial court regarding the standard of care to apply to ice hockey, arguing that the court applied the wrong standard. The plaintiff broke his neck while playing in a Junior A hockey game and is quadriplegic. The court tried to resolve this issue by explaining that it is not every careless act causing injury that will give rise to liability, it is acts outside the risks assumed, but the courts have difficulfy consistently applying a consistent standard. In Wilson', the court held that the standard of care was higher than just negligence when a collision during recreational baseball caused a compound fracture. The judge found that persons participating in sporting events accept risk of injury. The defendant's conduct must amount to a reckless disregard for the others safety or was deliberately intended to cause injury. Similarly, in Hackbart^ a Colorado state court agreed that negligence, inadvertence, or a failure to take precautions does not belong in the sports world. "Professional sport is a species of warfare not actionable in court". However, the appeal court reversed Hackbart, holding that tort-law principles were not inapplicable merely because the injury took place during a professional football game. Overall, the case law is not particularly consistent. It does not unanimously point to a narrower, lower standard of care. Therefore, the appropriate standard is negligence. The "mythical" reasonable person test is supposed to be applicable to all different contexts and circumstances.

1.6 BREACH OF STANDARD OF CARE

22. The breach of a standard of care is a question of fact determined by the trier of fact on the balance of probabilities.

23. In Pichardo', in a wrongñil death action, parties running a summer league baseball game were not responsible for a baseball player being struck and

6. Zapfv. Muckalt, [1996] B.C.J. No. 2402. 7. mison V. Haddock, [1998] B.C.J. No. 1036. 8. Hackbari v. Cincinnati Bengals, Inc.601 F2nd 516. 9. Pichardo V North Patchogue Medford Youth Athletic Assoc, Inc. (1991, 2d Dept) 172.

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killed by lightning. Lighting while rarely striking, posed an unreasonable risk, but the assumption of risk denied the defendant's liability. In Parmentier'", the promoter of a boxing match, between minors, a fight in which each contestant sought to gain an advantage over the other by injuring him by means of blows, was not liable for the death of one of the minors between the fifth and sixth rounds. While the minor may not have fully and knowingly understood and appreciated his own risk, the court felt that when entering a boxing match, both the participants and their parents accepted serious risk, so the court denied liability.

24. The history of the role of the team physician is relevant to this inquiry. In the past, the return to the sport arena was more vital than complete recovery of the patient. Athletes would not seek any treatment at all. Doctors were seen as evil. If an athlete saw the team physician, the first recommendation was, "Well give up football" so that doctors and athletes were seen as incompatible. Also, coaches, management and sometimes players resisted a doctor's involvement. In Robitaille", the court awarded $435,000 in damages for a neck injury that did not have an adequate chance to heal. The physician, was pressured from the team and management, and insisted that Robitaille return to the ice. In the newspaper the coach stated " ... Of course, we were short a defensemen with Robitaille out (sore shoulder). I don't know exactly how bad it is but I tell you he'd better start playing. If he doesn't, I'm going to have to consider suspending him..." Today, a more contemporary approach is used.

25. The majority of sudden cardiac deaths in young athletes are cause by either inherited or congenital cardiac disorders. This is a common problem among young professional athletes. The implantable defibrillator, a device that provides excellent protection from sudden death, has revolutionized the treatment of athletes with life-threatening ventricular arrhythmias but defining the athletes who would benefit is not always clear.

26. The cost of avoiding the risk would not be a barrier for the Red Wings. The Red Wing's could have offered JF a job in administration, as a non-player. However, the cost to JF was not insignificant. As he had mentioned to the media previously, he would have been psychologically devastated if he did not return to the game, a game he had devoted his life to.

10. Parmentier v. McGinnis (1914) 157 Wis 596. 11. Robitaille v. Vancouver Hockey Club Ltd, [1981] B.C.J. No. 555.

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27. There is social utility in allowing JF to make his own choice. The NHL is a form of public entertainment and performs a social good. It gives young players hope that one day their dreams of becoming an elite athlete will be realized rather than turning to drugs or alcohol. This would be based on their own choices without undue interference from others. Provided it does not affect the safety of others, players feel that they should be entitled to assume their own risk and achieve their goals and dreams.

1.7 CAUSATION

28. Before liability can be proven, the negligent conduct by the Red Wings must have caused JFdeath. Causation can be proven in two ways. First, was the Red Wing's conduct the causal factor, or proximate cause, of JF death? But for the Red Wing's allowing F back on the ice, JF would not have died. The Supreme Court of Canada, in Snell and Farrel'^, found that medical causation does not have to reach scientific precision, but is a question of fact to be determined on the balance of probabilities. But here the trial court was not permitted to infer causation from little affirmative evidence like in Snell, because knowledge in this case was not one sided, within the knowledge of the Red Wings alone. JF was knowledgeable and had independent legal and medical experts who advised him. Second, even if the Red Wing's conduct of not preventing JF from returning to the ice did not alone cause JF death, causation could be established if the negligent conduct of failing to protect JF materially contributed to his death. It is enough that the negligent conduct amounted to one of the material contributing causes. The thin skull rule applies, whereby the Red Wings are still fully liable even if the death is more serious than their conduct alone as compared to the seriousness of JF pre- existing congenital heart condition. The Red Wing's must take JF as they found him, and as they diagnosed him. The Red Wings were aware of the risks that his heart condition posed, as they consulted with independent lawyers and medical experts.

1.8 VOLUNTARY ASSUMPTION OF RISK

29. The courts are reluctant to find, in tort, that the plaintiff voluntarily assumed the risk because it is a complete bar to recovery. Voluntary assumption of risk

12. Snell V. Farrell, (1990) 72 D.L.R. (4th) 289 (S.C.C).

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may also operate unfairly when, in one situation, the plaintiff is contributory negligent and in another the plaintiff is not, because it is a complete bar to recovery. The courts prefer apportionment under the Negligence A ct. In Dube ' ̂ and in Seymour, the plaintiff agreed to accept the risk when he accepted a ride fi-om a drunk driver, but the court found that the plaintiff did not waive his legal rights. In Crocker, the burden is on the defendant to show that the plaintiff not only was aware of the physical risk, but also accepted all of the physical risk without compensation and knowingly waived his rights to have any legal recourse.

1.9 CONTRIBUTORY NEGLIGENCE

30. The burden is on the Red Wings to prove that on the balance of probabilities the plaintiff was negligent himself for returning to the ice. One expects a reasonable person to take reasonable precautions for their own safety. JF did just that. He sought medical treatment, the implantable defibrillator, and medical advice before returning to the ice. JF was not contributory negligent.

2.0 WAIVER AS CONTRACTUAL DEFENSE

31. Waivers are contracts, so contract principles apply. Waivers are offered and accepted. Waivers need to have consideration and the intention that they will be legally binding to be enforceable. Consideration is usually the right of the athlete to participate after he/she contractually waives the risk. In exchange for participating, the athlete as part of the bargain knowingly waives his right to sue. Especially if an athlete relinquishes a lot, there should be some evidence that there was a bargain. Similar to contracts, waivers are struck down if there is fi-aud, duress, undue influence, or unconscionability. The party bound by the waiver must be given adequate notice or the party seeking to rely on the waiver must take reasonable measures to draw the waiver to the bound party's attention and take reasonable steps in the circumstances to ensure the bound party understands the waiver. The bound party must have clear knowledge and appreciation of the nature and character of the risk to be assumed and voluntarily accept the risk. The waiver should express what the parties intended or contemplated regarding the scope of the conduct of the potential defendant and the severity and type of injuries or damages that were

13. Dube V. Labar, (1986) 27 D.L.R. (4"̂ ) 653 (S.C.C).

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to be accepted. Unless it is plain and obvious that the conduct and injuries are clearly within the ambit of the waiver, a motion's court may reftise to dismiss the claim on summary judgment, as there may be a genuine issue for trial. For negligent conduct, a court will generally look at the drafting ofthe waiver, to ensure that a participant has willingly given up his or her rights to be legally protected from personal injury caused by negligence. Courts have upheld waivers that cover negligent acts and this is not unique to the sport's context. However, courts have not always been consistent on deciding on the validity of waivers.

32. In the absence of a signed waiver, participants assume only the ordinary risks of doing the activity from the perspective of the average reasonable participant. For instance, a golfer who gets hit by a stray ball will likely lose his/her negligence claim even without having signed a waiver because it is an ordinary risk of the average golf enthusiast. In Everett'", an ice hockey player who sustained a serious head injury sued in both negligence and strict liability for a defective hockey helmet design. While the jury ruled in the plaintiff's favor for negligence, the judge immediately disagreed as a matter of law that the plaintiff voluntarily assumed the risk of injury. Defendants are not required to be shielded by waivers if a sport or activity has been deemed inherently dangerous by the courts, such as skydiving, white water rafting or bungee jumping, since a participant should know the serious dangers. However, if an unusual danger causes injury, the defendant is liable, without a waiver. In Haley'^ a tobogganer riding a crazy carpet was injured when she fell into a hole just off of the groomed portion of the slope. A hole is not a risk inherent in the sport of tobogganing. She sustained a broken leg. The resort knew about the hole and should have foreseen a risk to the tobogganers. They marked the hole with a danger warning, but this was insufficient to discharge their duty of care. The defendant should have drawn the hazard to the attention of the tobogganers before permitting them to proceed down the slope. The plaintiff was found to be 50 % contributory negligent, as she did not look to see if hazards existed on the slope. In MacCabe", a 16-year-old girl was rendered quadriplegic by trying a back flip in gymnastics class. She was 25 % contributorily negligent as she was aware ofthe dangers. In Rudd",

14. Everett v Bucky Warren, Inc., 380 N.E. (2"'') 653. \5.Haleyv While Hills Resort Ltd, [1999] N.J. No. 157. 16. MacCabe v. Westlock Roman Catholic Separate School District No. ¡10, [2001 ] A.J. No.

1278. 17. Ruddv. Hamiota FeedLot Ltd., [2006] M.J. No. 36.

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the plaintiff sustained a serious acquired brain injury after falling off a horse missing a shoe. She was 33.3% contributorily negligent. But in Msuya'^ no contributory negligence was granted because it was unreasonable to expect a 12 year old, who was a newcomer to a group, to assert herself, not to take part in a cross-country bike trip.

33. In Ivo'^ the court analyzed the issues differently. The defendant had a duty to completely and accurately inform the plaintiff of the condition of a racetrack. Here, there was a depression in the racetrack. The defendant, who had special knowledge, made an incomplete representation of the safety of the racetrack, inducing him to enter into a contract to the defendant's detriment. Ivo suffered injuries, and the defendant was liable. Assumption of risk did not apply, because he was not fully informed of the danger and therefore could not fully appreciate the risk that he was accepting.

34. In Murray^", the plaintiff was rendered paraplegic when a cattle-roping chute fell on her. The agreement only provided for the assumption of risk of using the arena, not the acceptance of both the physical and legal risk of injury from the defendant's negligence. Similarly in Llewellyn^', a trail riding accident waiver did not cover negligence and thus was irrelevant and the defendant was liable. In Hutchison, the park was negligent in failing to instruct the plaintiff how to enter the waterslide. He fractured his ankle. While he paid a fee to enjoy the slide and accepted the risk of injury, he did not abandon his legal rights.

35. If the risks, injuries or conduct are beyond the ordinary risk of the activity, and includes negligence, a waiver is usually required to exempt the defendant from liability. In Dyck", the court found negligence because the conduct and injuries were beyond the usual ordinary risk, but the court exonerated the claim due to the waiver clause in a snowmobile race entry form. In Dyck, the plaintiff signed the waiver with full knowledge of its intention, to exempt the defendant from liability; including negligence. The waiver was found not to be against public policy, a fundamental breach, nor was there an unconscionable transaction.

18. Msuya(Litigation guardian of) v. Fraser, [2000] O.J. No.3304. 19. Ivo V. Halabura, [1990] S.J. No.384. 20. Murray v. Bitango, [1996] A.J. No. 418 21. Llewellyn v. MacSwain, [1993] P.E.I.J. No. 38 22. Dyck V Manitoba Snowmobile Association Inc., [1985] 1 S.C.R. 589.

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36. Waivers are generally disfavored by the courts, unless they are unambiguous (contra proferentem- construing an ambiguous provision most strongly against the drafter), not against public policy and entered into knowingly and voluntarily. In Crocker, the waiver was not drawn to the plaintiff's attention, he had not read it' thinking it was an entry form. The court in Crocker invalidated the waiver because it was entered into unknowingly and involuntarily.

37. Even if a waiver is valid on its face, the court will generally not release the defendants from intentional, willful, reckless or wanton acts for want of public policy. Courts do not want to allow reckless potential defendants from getting a free way out by using waivers of liability. There are concerns that an injured party cannot be made whole just because he signed a piece of paper or it was on the back of an admission ticket. There is a concern that waivers may lower the standard of care. As far as public policy is concerned, a counter-argument is that the courts have to be mindful that sports are not peripheral to society; they are central to life and have become an important unique institution for the transmission of social and political concerns. Civil liability should not, therefore, pose an undue burden on the development of sport at both an amateur and professional level just because of unproven fears.

38. Waivers have been upheld in ultra hazardous activities, such as racecar driving, otherwise it would increase the liability of the sporting event to such a degree that all the similar events would be cancelled. This would not be in the public interest. In the United States, some sports have been shut down or made more expensive as a result of the high cost of defending lawsuits. Also, it is inappropriate for today's court to re-watch a video frame by frame and then decide whether liability should, in retrospect, be pinned on a defendant.

39. Dale Earnhardt died at the Daytona 500 car race, but his death was not unpredictable. He risked his life and limb every time he entered into a race. In Williams, a law student signed a waiver voluntarily with knowledge and appreciation of the risk before entering a 10,000-meter road race in the heat. He argued that there was no choice but to sign the waiver, otherwise he could not enter the race. He sustained permanent impairment of motor functions from heat exhaustion. The waiver was valid. The waiver was particular enough of the risks, not against public policy and there was no unequal bargaining power. Courts have generally held that entering a race or participating in sports at the amateur level is discretionary. Professional or elite athletes do have an argument that it is of financial necessity shifting the risk back to the defendants

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on the ground that the waiver is unconscionable. However, independent legal advice may save an otherwise unconscionable waiver or a waiver entered into under duress or undue influence.

40. In Blomberg", a skier signed a contractual waiver of all claims including negligence. The skier claimed that he did not read it before signing. The court held that the waiver was valid and enforceable. The waiver was a bar to the action. The defendant took reasonable steps to bring notice of the waiver to the skier by having it witnessed by an employee who went over the reasons for having it signed. The skier knew that he was signing a waiver, but chose not to read it. This is not a case of non est factum. The plaintiff was well educated and a sophisticated businessman. There was no misrepresentation or fraud. The plaintiff knew the risk inherent in skiing. The court held that the waiver was not unconscionable or divergent from community standards of commercial morality and not against public policy. In Ocsko^", a British Columbia appeal court drew a similar conclusion with a skier that signed a waiver. Some courts have found in recent cases that the use of exempting conditions on the back of ski lift tickets suffice to avoid liability.

41. In Cowes", a student and exotic dancer visited the African Lion & Safari and were attacked by Siberian tigers. The park was strictly liable for severe physical and psychological injuries of the plaintiff because the Siberian tigers were wild and dangerous animals. Since the park kept the Siberian Tigers free, rather than in cages, the park was held to strict liability and the court was more reluctant to apply contributory negligence. There were signs outside the park and brochures stating: "All visitors enter the park at their own risk. No responsibility for damage to vehicle or person however caused". Like Crocker, the plaintiff neither recalled seeing the signs or reading the brochures, nor did anyone working at the park draw the sign or the brochure to their attention. Because there were issues with consent, voluntariness and notice, the courts in Cowes and Crocker did not uphold the waiver or the assumption of risk.

42. Under public policy, waivers may not be upheld if there is an industry practice that is unconscionable. While individuals who elect to participate in ultra-hazardous activities like bungi-jumping are exempted from suing under a waiver, cheerleading groups who are forced to participate in dangerous

23. Blombergv. Blackcomb Skiing Enterprises Ltd., [1992] B.C.J. No. 196. 24. Ocsko V. Cypress Bowl Recreations Ltd., [ 1992] B.C.J. No. 1992. 25. Cowles V. Balac, [2005] O.J. No.229.

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stunts are not, mainly because the waivers are unconscionable.

43. Moving to the use of waiver in the sports medicine context. In Lewis^*, the estate of former Boston Celtic NBA player Reggie Lewis lost a wrongful death suit against several physicians. Reggie Lewis saw several specialists about his heart condition and was aware of his risk. The physicians after treatment recommended a monitored game plan which never occurred. Instead, Lewis, against medical advice, died while playing unmonitored basketball with friends on July 27, 1993.

44. In Thomas", a student was rendered quadriplegic after sustaining a broken neck after making a football tackle. The risk was within the ambit of the "Interscholastic Athletic Permission Form". The injury was within the limits of risk inherent in tackle football. It is of interest that the plaintiff may have had a pre-existing "lean swan neck", which increased his risk especially if he played defensive-back. The court found that this "lean swan neck" theory was not common knowledge among coaches and, therefore, the court did not find the coaches negligent. The plaintiff participated in tackle football under his own free will with knowledge of the risk. Thomas did not sign a waiver, which would overcome negligent conduct by his coaches, but the coaches were not found to be negligent and his lawsuit was unsuccessful.

45. In the Health Law setting, waivers have been upheld. In Hobbs^^ despite malpractice and a negligently performed surgery that resulted in bleeding during a laparoscopically assisted vaginal hysterectomy, the patient pre- operatively signed a refusal to permit blood transfusion and she was aware of the dangers of surgery without available blood transfusion. She died. The estate argued that the waiver of blood transfusion did not intend to excuse the physician's negligence. The transfusion would have saved the patient's life. The court could not accept that a person should be able to deny a doctor's use of every tool to overcome the effects of negligence.

46. In the medical treatment context, informed consent is the standard expected of a reasonable physician in discussing and implementing treatment decisions. In Hopp^', the nature of the proposed treatment, its gravity, any material risks

26. Lewis V. Mudge, 60 Mass. App. Ct. 480, 803 N.E. 2d 735. 27. Thomas v. Hamilton (City) Board of Education, [1994] O.J. No. 2444. 28. Hobbs V. Robertson, [2004] B.C.J. No. 1689. 29. Hopp V. Lepp, [1980] 2 S.C.R. 192.

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and any special or unusual risk should be disclosed. In ReibP", the court changed the standard from what a reasonable medical doctor would disclose to what a reasonable patient should receive. Certain cosmetic procedures require a higher standard the Reibl.

47. In the treatment of sports athletes, some would argue a higher standard than Reibl, but if one appreciates the complexity ofthe dynamics in the sports world, between team physician, the team and the athlete, Reibl is a more reasonable and sufficient standard that properly balances all the interests. For instance, an athlete wanting to return to the ice after treatment should be expected to receive all the risks that a reasonable player in the circumstances should receive before deciding whether or not to accept the risk.

48. The team physician generally has the primary responsibility for medically clearing athletes to play. Athletes have either threatened to sue or sued their physician for negligent advice. The estate of a Gathers, a college basketball player, alleged that the physicians improperly cleared him to resume playing college basketball with a serious heart condition. Since there is no currently well-defined judicial precedent establishing specific parameters of a physician's legal duty of care in clearing athletes to participate in competitive athletics, a case-by case assessment is recommended. In Classen^', the ringside physician's failure to stop a boxing match when the participant received several blows to the head resulting in death may have constituted nialpractice. In Mikkelsen^^ the physician was negligent for allowing an athlete to return to ski jumping after hip replacement surgery.

49. The courts have determined the standard to be within the bounds of acceptable or reasonable sports medicine practice governed by the obligation to protect the athlete from medically unreasonable risks of harm. Appropriate considerations include: the intensity and physical demands of a sport, the athlete's physiology, the available clinical evidence, conference or customary guidelines, the probability and severity of harm and whether medication, monitoring or protective equipment will minimize the potential health risks of the participant and enable safe athletic participation.

50. In terms of a waiver, physicians cannot insist on a waiver in the regular

30. Reibl V. Hughes, [1980] 2 S.C.R. 88. 31. Classen v. Izquierdo, 520 N.Y.S. 2d 999 (Sup. Ct. N.Y. County 1987). 32. Mikkelsen v. Haslam, 764 2 d 1384 (Utah CT. Aoo. 1988).

Medicine and Law 17

routine treatment of their patients for public policy reasons. But the team physician-adult athlete relationship is different and the parties should be able to establish their relationship by a waiver. If an athlete is fully informed of all the risks of playing with an illness or injury, or the player desires a physician to utilize innovative treatment, an athlete should be able, if willing, to release a physician from potential negligence and be cleared to play. Doing so may eontravene a team physician's fiduciary obligation to protect an athlete's health by not discouraging participation that exposes them to risk of serious harm. But if a team or a physician denied treatment or denied allowing the player to compete, a player should have the option of challenging the exclusion by requesting that the sport or physician provide accommodation to allow participation in the sport. Teams are generally able to defend these challenges or claims if the athlete's participation in the sport creates a significant increased risk of substantial harm to the athlete or other players. In Knapp", a basketball player suffered a cardiac arrest while playing basketball. He survived after defibrillation. He had an implantable defibrillator and he played successful recreational basketball. The doctors refused to let him play intercollegiate basketball. Even with the defibrillator he was at significant risk of ventricular fibrillation or cardiac arrest during competitive sports. The implantable defibrillator had not been tested in intercollegiate basketball. The court found that the University could establish legitimate physical qualifications that an individual must satisfy before competing. It held that an athlete could be disqualified if necessary to avoid a significant risk of injury to himself that cannot be eliminated through reasonable medical accommodations. The court in closing stated that its decision may not be the right one, only that it is not an illegal one under the Rehabilitation Act. The problem is that physicians tend be conservative and if the decision is left solely in the hands of the physician, without any input from informed athletes, many otherwise disabled players would be refused participation when realistically they could participate safely, albeit with a high risk.

2.1 CONCLUSION

51. There is a positive dufy at law to prevent a player with a serious medical disabilify from returning to play. The Red Wings had a dufy of care to JF and failed to discharge that dufy. However, if a player is able to seek medical

33. Knapp v. Northwestern University, 010 F. 3d 473 (7th Cir. 1996).

18 Medicine and Law

treatment that reduces the risk and does so, a player's will to return cannot be ignored. The team must substantiate the restriction by justifying the risk as a relatively certain and substantial risk. A player may agree to accept high risk of serious injury or death through a contractual waiver to insulate others from liability in negligence. JF signed a valid contractual waiver that exempts the Red Wings and their physicians from liability in negligence. Independent legal advice and advice from medical experts ensured that the waiver was voluntary, understood and appreciated and that both the team and player bargained on a relatively equal platform. While the principles and arguments apply to Canadian common law, the principles and policies are applicable to all other common-law countries and civil law countries throughout the world, as the problems and issues addressed in this paper are not local. Each legal and medical system should try to resolve the issues using the framework of its own rules of law, but the principles and policies should be broadly accepted.

APPENDIX I

Table of Legislation

Negligence Act R.S.O. 1990, N.I.

Occupiers' Liability Act, R.S.O. 1990, c. 0.2.

APPENDIX II

Table of Cases

Arlandv. Taylor, [1955] 3 D.L.R. 358 (Ont. CA.).

Assiniboine South School Division, No. 3 v. Greater Winnipeg Gas Co., [1971] 4 W.W.R. 746 (Man. CA.).

Athey v. Leonati (1996), 140 D.L.R. (4"') 235 (S.CC).

Bain V. Calgary Board of Education, [ 1994] 2 W.W.R. 468.

Blomberg v. Blackcomb Skiing Enterprises Ltd., [1992] B.C.J. No. 196.

Buchan v. Ortho Pharmaceutical (Canada) Ltd., (1986) 25 D.L.R. (4'*') 658 (Ont. CA.).

Car and General Insurance Corp. Ltd. v. Seymour, [1956] S.C.R. 322.

Classen v. Izquierdo, 520 N.Y.S. 2d 999 (Sup. Ct. N.Y. County 1987).

Cowles V. Balac, [2005] O.J. No.229.

Medicine and Law 19

Crocker v. Sundance Northwest Resorts Ltd, [1988] 1 S.C.R. 1186, [1988] S.CJ. No. 60.

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.).

Dube V. Labar, (1986) 27 D.L.R. (4*) 653 (S.C.C).

Dyckv. Manitoba Snowmobile Association Inc., [1985] 1 S.C.R. 589.

Everett v. Bucky Warren, Inc., 380 N.E. (2"'') 653.

Gagnon v. Beaulieu, [1977] 1 W.W.R. 702 (B.C.S.C).

Hackbart V. Cincinnati Bengals, /«c.601 F2nd 516.

Haley v. London Electricity Bd, [1965] A.C. 778 (H.L)

Haley v. White Hills Resort Ltd [1999] N.J. No. 157.

Hobbs V. Robertson, [2004] B.C.J. No. 1689.

Hopp V. Lepp, [1980] 2 S.C.R. 192.

Hutchison v. Daredevil Park Inc., [2003] O.J. No. 1570.

Ivo V. Halabura, [1990] S.J. No.384.

Jane Doe v. Metro Toronto Comm. Of Police, [1998] O.J. No. 2681 (Gen. Div.).

J.G. V. Stathcona, [2004] A.J. No. 664.

Kauffman v. T.T.C., (1959) 18 D.L.R. (2d) 204 (Ont. CA.).

Knapp V. Northwestern University, 010 F. 3d 473 (7* Cir. 1996).

Knockwood V Cormier, [1995] 167N.B.R. (2d) 147,427A.RR. 147.

Law Estate v. Simice (1994), 21 CCL.T. (2d) 228 (B.C.S.C).

Lewis V. Mudge, 60 Mass. App. Ct. 480, 803 N.E. 2d 735.

Llewellyn v. MacSwain, [1993] RE.I.J. No. 38

MacCabe v. Westlock Roman Catholic Separate School District No. 110,

[2001]A.J.No. 1278. Menow v. Jordan House Ltd., [1974] S.C.R. 239.

Mikkelsen v. Haslam, 764 2 d 1384 (Utah CT. Aoo. 1988).

Msuya(Litigation guardian of) v. Fraser, [2000] O.J. No.3304.

Murray v Bitango, [1996] A.J. No. 418

Nairne v. Wagon Wheel Ranch Ltd., [1995] O.J. No. 1234.

Norbergv Wynrib (1992), 12 CCL.T. (2d) 1 (S.C.C). Ocsko V. Cypress Bowl Recreations Ltd., [1992] B.C.J. No. 1992.

20 Medicine and Law

Osterlindv. Hill, (1928) 160 N.E. 301 (Mass.S.C).

Paris V. Stepney Borough Council, [1951] A.C. 367 (H.L).

Parmentier V. McGinnis (1914) 157 Wis 596.

Pascoe V. Ball Hockey Ontario Inc., [2005] O.J. No. 1253.

Pichardo v North Patchogue Medford Youth Athletic Assoc, Inc. (1991, 2d Dept)172AppDiv2d814.

Reibl V. Hughes, [1980] 2 S.C.R. 88 ,

Robitaille V. Vancouver Hockey Club Ltd., [1981] B.C.J. No. 555.

Rudd V. Hamiota FeedLot Ltd., [2006] M.J. No. 36.

Snell V. Farrell, (1990) 72 D.L.R. (4*) 289 (S.C.C).

Tarasoff V. Regents of University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976).

Thomas v. Hamilton (City) Board of Education, [1994] O.J. No. 2444.

U.S V. Carroll Towing Co., (1947) 159 F-2d 169 (2d Cir).

Waldickv. Malcolm, [1991] 83 D.L.R. (4"̂ ) 114 (S.C.C).

Wilson V. Haddock, [1998] B.C.J. No. 1036.

Zapfv. Muckalt, [1996] B.C.J. No. 2402.

APPENDIX HI

Secondary Authority

Barnes, J. "Recent Developments in Canadian Sports Law" (1991) 23 Ottawa L. Rev. 623.

Champion, W. "Car race waivers' checkered flag on third party loss of consortium claims", 14 Seton Hall J. Sports & Ent. L. 109.

"Cheerleading group wants stunt restrictions" online msnbc.com Associated Press, March 8, 2006.

Dent, J. "Congenital heart disease and exercise." Clin Sports Med. 2003 Jan;22(l):81-99.

Elvin C, " United Kingdom: A Question of Sports Law - what happens next?" Mondaq Business Briefing (6 September 1999).

Firoozi, S. et. al., "Risk of competitive sport in young athletes with heart Disease", Heart. 2003 Jul;89(7):710-4.

Medicine and Law 21

Garson, A. "Arrhythmias and sudden cardiac death in elite athletes. American College of Cardiology, 16* Bethesda Conference", Pediatr Med Chir. 1998 Mar-Ppr;20(2): 101-3.

Grazis, S. "Liability of participant in team athletic competition for injury to or death of another participant", 55 A.L.R. 5* 529.

Jaffey, J. "Minor league plaintiff sues hockey league for injury after signing waiver," The Lawyers Weekly, Vol. 25, No.4.

Iacono P., "The Municipality as Occupier of Recreational Property", 6 Advocates' Soc. J. No. 2, 27-34.

Liberthson, R. "Arrhythmias in the Athlete with Congenital Heart Disease: Guidelines for Participation", Annual Review of Medicine, Vol. 50: 441-452

Ling, M. et. al, "Ventricular arrhythmias in the athlete", Curr Opin Cardiol. 2001 Jan;16(l):30-9.

Lorvidhaya, P. "Sudden Cardiac death in athletes". Cardiology. 2003; 100(4): 186-95.

Mitten, M. "Emerging Legal issues in sports medicine: A synthesis, summary, and analysis,"76 St. John's L. Rev. 5.

Neumann, J."Disclaimer Clauses and Personal Injury," (1991), 55 Sask. L. Rev. 312.

Piantanida, N et. al., "Sudden cardiac death: ethical considerations in the return to play," Current Sports Med Rep. 2004 Apr;3(2):89-92.

O'Donoghue, D. Treatment of Injuries to Athletes, (Toronto: W.B. Saunders, 1976).

Rovell, D. "Doctor will recommend more detailed hear tests" online:ESPN. com.

Sethi, D., "Please Release me:Prospective Exculpatory Covenants in Arizona", online www.abanet.org.

Tomlinson J. and Machum, G. "Participants, organizers must consider potential exposure Door open to high damages in sports activities," The Lawyers Weekly, 14:44.

University of California, Berkeley (example) "Waiver of Liability, Assumption of Risk and Indemnity Agreement" , online. University of California, Cal Sport Club Website.

22 Medicine and Law

BIOGRAPHICAL NOTES

Ken J. Berger Esq., MD, CCFP(EM), Dip Sport Med, JD, LL.B, FCLM is a Lecturer at the Universify of Toronto, Faculfy of Medicine. He is Principal at Berger Law Firm, a Health Law Litigation advocacy firm at wvi^w.medicallegaladvocacy.com. While helping his legal clients, he practices medicine at a hospital caring for patients who are rehabilitating from serious neurological injury. Prior to his legal career, he was a sport medicine and entertainment physician for the Canadian Soccer Association, Rugby Canada, for National/International games and for event coverage for well known musician, actors or performers. He is on the editorial board of "Medicine and Law" and a member in good standing of the World Association of Medical Law and the American College of Legal Medicine.

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