Name Consultant Research Grant Scientific Advisory Board Expert Witness Testimony

Dr. N. A. Mark Estes III ● Guidant ● Guidant ● Guidant (Executive Committee) None

● Medtronic ● Medtronic

Dr. Mark S. Link None ● Guidant None None

● Medtronic

Dr. Barry J. Maron None ● Medtronic None ● 1996, Defense, Knapp vs. Northwestern

Task Force 12: Legal Aspects of the

36th Bethesda Conference Recommendations

Matthew J. Mitten, JD, Chair

Barry J. Maron, MD, FACC, Douglas P. Zipes, MD, MACC

GENERAL CONSIDERATIONS

In 1994, when the 26th Bethesda Conference recommendations

were formulated, no court had yet considered whether an

athlete with a cardiovascular abnormality could be involuntarily

excluded from a competitive sport if physicians disagreed in

their participation recommendations (1–3). However, new

data have subsequently become available, and several highly

visible cases involving the sudden deaths of elite competitive

athletes (4,5) have brought medical-legal and liability considerations

into prominent focus. A 1996 lawsuit brought by a

student-athlete claiming the legal right to play intercollegiate

basketball contrary to a university team physician’s

medical recommendation has established a developing legal

framework for medical decisions regarding the eligibility or

disqualification of trained athletes with cardiovascular disease

to participate in competitive sports. In this case, Knapp

vs. Northwestern University (6,7), a federal appellate court

recognized the appropriateness of a physician’s reliance on

current consensus medical guidelines when making a participation

recommendation for an athlete with a cardiovascular

abnormality. Consequently, judicial precedent now

provides some guidance regarding the role of the present

36th Bethesda Conference recommendations in resolving

legal issues relating to athletic participation disputes.

In the Knapp case, the court upheld Northwestern

University’s legal right to accept its team physician’s recommendation,

which was consistent with the then-current

26th Bethesda Conference guidelines, to medically disqualify

a student-athlete from playing college basketball (6).

As a high school senior, Nicholas Knapp suffered sudden

cardiac arrest while playing in an informal basketball

game, which required cardiopulmonary resuscitation and

defibrillation to restore sinus rhythm. Thereafter, he had a

cardioverter-defibrillator (ICD) implanted. He resumed

playing recreational basketball without any subsequent cardiovascular

events, and three cardiologists medically cleared

him to play college basketball.

Knapp had received a full athletic scholarship at Northwestern

University to play intercollegiate basketball. While

Northwestern honored Knapp’s scholarship, it barred him

1373 JACC Vol. 45, No. 8, 2005 Mitten et al.

April 19, 2005:1373–5 Task Force 12: Legal Aspects

from playing on its basketball team based on the team

physician’s medical recommendation. The team physician

considered Knapp’s medical records and history, the 26th

Bethesda Conference recommendations (1), and the opinions

of two consulting cardiologists who concluded that

Knapp would expose himself to a medically unacceptable

risk for ventricular fibrillation during competitive athletics.

All medical experts agreed on the following facts: 1)

Knapp had suffered a cardiac arrest; 2) even with the ICD,

playing college basketball placed Knapp at a higher risk of

sudden cardiac death as compared to other male college

basketball players; 3) the ICD had never been tested under

the conditions of intercollegiate basketball; and 4) no person

currently played or had ever played college or professional

basketball after having an ICD implanted. However, the

experts disagreed whether Knapp should be medically disqualified

from playing intercollegiate basketball.

The trial court ruled that Northwestern should restore

Knapp’s eligibility to play on its basketball team and

mandated a courtside defibrillator and cardiologist to be

present at all games and practices. However, the appeals

court overruled that decision and held that a university has

a legal right to establish legitimate physical qualifications for

its intercollegiate athletes. Northwestern did not violate the

Rehabilitation Act of 1973, a federal law prohibiting discrimination

against persons with disabilities, by following

its team physician’s reasonable medical advice. An athlete

may be medically disqualified and excluded from a sport if

necessary to avoid an enhanced risk of death or serious injury

during competitive athletics that cannot be eliminated through

the use of medication, monitoring, or protective equipment.

The court explained that Northwestern’s decision to exclude

Knapp from its basketball team was legally justified:

“We do not believe that, in cases where medical experts

disagree in their assessment of the extent of a real risk of

serious harm or death, Congress intended that the courts—

neutral arbiters but generally less skilled in medicine than

the experts involved—should make the final medical decision.

Instead, in the midst of conflicting expert testimony

regarding the degree of serious risk of harm or death, the

court’s place is to ensure that the exclusion or disqualification

of an individual was individualized, reasonably made,

and based upon competent medical evidence. . . . [W]e wish

to make clear that we are not saying Northwestern’s decision

is necessarily the right decision. We say only that it is not an

illegal one under the Rehabilitation Act” (6).

Knapp eventually left Northwestern and pursued collegiate

basketball at another university where the team physician

cleared him to play. Shortly thereafter, his ICD delivered an

apparently appropriate shock during a basketball game.

The present 36th Bethesda Conference recommendations

update the 26th Bethesda Conference guidelines of

1994 (1) (which modified the 16th Bethesda Conference

guidelines of 1984), taking into account the most recent and

relevant developments in the diagnosis and management of

cardiovascular disease. These new guidelines represent the

most current consensus opinion of a distinguished group of

cardiologists regarding the medical risks of participation in

competitive sports by athletes with cardiovascular abnormalities.

Thus, we anticipate that the 36th Bethesda Conference

recommendations will be recognized and accepted

by physicians but also by the legal community and courts, as

the most contemporary consensus opinion of a distinguished

expert panel of cardiologists regarding medical

eligibility and disqualification recommendations for competitive

athletes with cardiovascular disease.

The Knapp case recognized the appropriateness of physician

reliance on current consensus guidelines in making

medical clearance recommendations. However, the court

did not rule that the 26th Bethesda Conference guidelines

would always be legally determinative in resolving athletic

participation disputes involving athletes with cardiovascular

abnormalities. Therefore, consistent with legal precedent established

by Knapp vs. Northwestern University, a physician

may justifiably consider and rely upon the updated 36th

Bethesda Conference recommendations in making medical

eligibility recommendations for competitive athletes with cardiovascular

disease. Nevertheless, the law continues to require

that these recommendations be applied on an individualized

basis rather than used to exclude categorically all competitive

athletes who have a particular cardiovascular abnormality.

The Knapp case establishes an important precedent

regarding the medical exclusion of college and high school

athletes with cardiovascular disease from intercollegiate and

interscholastic athletics, for whom sports is an avocation or

extracurricular activity incidental to one’s education (6,7). It

is presently uncertain whether this same legal framework

will be applied to resolve future participation disputes that

involve professional athletes (for whom sports is an incomegenerating

livelihood) (8). However, it is notable that the

U.S. Supreme Court recently held that an enhanced risk of

significant harm to personal health is a legitimate ground for

exclusion from employment (9), which suggests that the

legal framework developed in the Knapp case may be

applied to professional sports.

Currently there is no well-defined legal precedent regarding

a physician’s potential malpractice liability for medically

clearing an athlete with a cardiovascular abnormality to

participate in a competitive sport contrary to consensus

recommendations (10). The law generally requires a physician

to have and use the current knowledge, skill, and care

ordinarily possessed and employed by members of the

medical profession in good standing. The applicable legal

standard of physician conduct is “good medical practice”

within the physician’s area of specialty practice, which

depending on the jurisdiction means either “reasonable,”

“customary,” or “accepted” medical care under the circumstances

(10). This general standard applies to physicians

who provide cardiovascular medical treatment to a competitive

athlete, including evaluation of his or her medical

fitness to participate in a sport.

1374 Mitten et al. JACC Vol. 45, No. 8, 2005

Task Force 12: Legal Aspects April 19, 2005:1373–5

Courts generally have recognized “guidelines” established

by national medical associations as evidence of good medical

practice, but they are not conclusive evidence of the standard

of care (11–13). Indeed, consistent with the requirements

of the federal disability discrimination laws as interpreted

in the Knapp case, it is important to emphasize that

the Bethesda Conference recommendations permit the

exercise of a physician’s medical judgment in individual

cases. The recommendations do not, per se, rigidly restrict

clinical practice or medical decision making. A clinician has

the flexibility to deviate from the recommendations if he or

she believes it is in the best interests of a patient-athlete to

reach an alternative decision and strategy.

The controlling legal issue is whether adherence to (or

deviation from) consensus recommendations is consistent

with reasonable, customary, or accepted medical practice in

an individual patient’s case. Although the recommendations

of the 36th Bethesda Conference do not represent formal

guidelines endorsed by the American College of Cardiology,

they are well-considered views of a group of experts

convened to address the medical risks imposed by competition

on an athlete with a cardiovascular abnormality.

Therefore, deviations from the 36th Bethesda Conference

recommendations that are nevertheless consistent with good

medical practice and are protective of an athlete’s health may be

appropriate in particular cases and do not necessarily create

physician liability for medical malpractice. Conversely, compliance

with the 36th Bethesda Conference recommendations

is some evidence that a physician has satisfied this legal

requirement, and in future legal disputes may form the basis of

a successful defense against allegations of malpractice (14).

doi:10.1016/j.jacc.2005.02.019

TASK FORCE 12 REFERENCES

1. Maron BJ, Mitchell JH. 26th Bethesda Conference: recommendations

for determining eligibility for competition in athletes with cardiovascular

abnormalities. J Am Coll Cardiol 1994;24:845–99.

2. Maron BJ, Brown RW, McGrew CA, Mitten MJ, Caplan AL, Hutter

AM Jr. Ethical, legal, and practical considerations affecting medical

decision-making in competitive athletes. J Am Coll Cardiol 1994;24:

854–60.

3. Mitten MJ, Maron BJ. Legal considerations that affect medical

eligibility for competitive athletes with cardiovascular abnormalities

and acceptance of Bethesda Conference recommendations. J Am Coll

Cardiol 1994;24:861–3.

4. Maron BJ. Sudden death in young athletes: lessons from the Hank

Gathers affair. N Engl J Med 1993;329:55–7.

5. Maron BJ. Sudden death in young athletes. N Engl J Med 2003;349:

1064–75.

6. 101 F. 3d 473 (7th Cir. 1996), cert. denied, 520 U.S. 1274 (1997).

7. Maron BJ, Mitten MJ, Quandt EF, Zipes DP. Competitive athletes

with cardiovascular disease—the case of Nicholas Knapp. N Engl

J Med 1998;339:1632–5.

8. Mitten MJ. Enhanced risk of harm to one’s self as a justification for

exclusion from athletics. Marq Sports L J 1998;8:189 –223.

9. Chevron U.S.A. Inc. vs. Echazabal, 536 U.S. 73 (2002).

10. Mitten MJ. Emerging legal issues in sports medicine: a synthesis,

summary, and analysis. St John’s L Rev 2002;76:5– 86.

11. Stone vs. Proctor, 131 S.E.2d 297, 299 (N.C. 1963).

12. Pollard vs. Goldsmith, 572 P.2d 1201, 1203 (Ariz. Ct. App. 1977).

13. Swank vs. Halivopoulos, 260 A.2d 240, 242-43 (N.J. Super. Ct. App.

Div. 1969).

14. Mitten M. Team physicians and competitive athletes: allocating legal

responsibility for athletic injuries. Univ Pitt L Rev 1993;55:129–60.

Appendix 1. Author Relationships With Industry and Others

Date: 2016-03-03; view: 1052