Is Washington Redskins left tackle Trent Williams, who ended his season-long holdout earlier this week, a victim of medical malpractice by team doctors?
This provocative question is the latest development in an ongoing feud between the seven-time Pro Bowler and the 1-7 Redskins. On Thursday, Williams told the media that his holdout in part reflected a diagnosis of dermatofibrosarcoma protuberans (DFSP), a rare type of cancer found in layers of skin, and what Williams described as an unduly passive and unconcerned response by the team to his health.
Williams criticizes the quality of care provided by the Redskins
According to Williams, DFSP was found in a malignant growth on his head. This discovery apparently happened within the last year. The growth was removed through several surgeries. Williams now appears to be in good health, though must have regular checkups. He also hopes that “nerve damage” in the area where the growth appeared will gradually heal.
Williams depicts the Redskins as minimizing his concerns about the growth, particularly as it enlarged over the last several years. The 31-year-old former Oklahoma star claims that he first noticed the condition in 2013. This was three years after the Redskins took Williams with the fourth overall pick in the 2010 NFL draft. Williams asserts that not long after his discovery he notified the Redskins about what he saw.
As retold by Williams, Redskins medical staff downplayed the condition as “something minor” and just a “cyst.” His comments also suggest that the team’s medical staff declined to order tests that would have revealed the seriousness of the condition. Williams went on to explain that team medical personnel eventually had the excess skin removed. When the skin was examined, the team learned that the cyst had a cancerous growth. The Redskins then sent Williams to see a specialist. By that point, the growth was “far more advanced.”
The Redskins’ response and why it lacks detail
The Redskins almost immediately issued a response to Williams’s claims. The team declined to publicly comment on his specific claims. This was expected given confidentiality requirements found in both the collective bargaining agreement and in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a federal law that restricts employers and other holders of medical records from disclosing patient information.
Nonetheless, the Redskins stressed that they prioritize player health. The team also invoked the collective bargaining agreement to request an independent third-party review of Williams’s medical records and the medical care provided by the Redskins to Williams. The details of the review will be determined jointly by the league and the National Football League Players’ Association.
How the CBA impacts what happens next
The CBA contains a number of provisions that relate to Williams’s situation. They are mainly found in Article 39, which concerns the potentially thorny dynamic of health care professionals paid by teams to treat players.
All physicians in the United States must adhere to the Hippocratic oath. The oath generally obligates doctors to provide ethical care to their patients and not harm those patients. Pursuing the best interests of the patient is a hallmark of health care and it is reflected in laws, regulations and professional licensing requirements.
Over the years, concerns have been raised about employers hiring health care professionals to treat their employees. This was evident in the context of late-19 and early-20 century “company towns,” which companies planned and built and where employees would work and reside. The companies essentially owned all of the towns’ operations—including the delivery of health care.
This concern has surfaced more recently during concussion litigation brought by retired NFL players. The litigation has raised questions about NFL teams clearing players to play when they had suffered neurological trauma.
In the context of sports, the basic tension with health care providers working for teams surrounds their employment being determined by those teams. At least in the abstract, a team and a player might not share the same interests in the player’s health. A team wants its players healthy enough to play in upcoming games; a player must be mindful of his or her health for the rest of their life, including long after a playing career has ended. These short- and long-term vantage points might lead to different conclusions about whether a player should play.
This tension was apparent in 2015, when Chelsea’s team doctor, Eva Carneiro, was demoted by her employer because she entered the field to treat an injured player. The team manager, Jose Mourinho, objected to Carneiro taking such action because of its impact on the team’s chances to win. This tension was also discussed in the aftermath of Kevin Durant returning to play in the 2019 NBA Finals, only to suffer an Achilles injury shortly after his return.
To address these types of issues, Article 39 dictates that the “primary duty” of an NFL team physician in providing medical care is “not to the club but instead to the player-patient.” In addition, teams must use their “best efforts” to ensure that players are “provided with medical care consistent with professional standards for the industry.”
Players also have the collectively bargained right to seek a second medical opinion and, provided a player satisfies Article 39 procedural requirements in seeking such an opinion, the team can be obligated to pay for the medical services rendered by that outside physician. Those procedural requirements include that the player must consult the team physician prior to seeking a second opinion. Later on, the player must ensure that the team physician be “furnished promptly” with a report that details the outside physician’s views on diagnosis, examination and recommended course of treatment. A player can also elect to pursue the recommendation of the second opinion over the opinion offered by the team physician, but only after consulting with the team physician and giving “due consideration” to his or her recommendations. As to Williams, his remarks indicate that the Redskins directed him to see a specialist.
The Redskins need to conduct interviews and fact-finding
It will likely take time for the Redskins to secure records and witness statements to help them better understand how the team interacted with Williams about his health. While Daniel Snyder has owned the Redskins for 20 years, the team has experienced significant turnover in leadership under his watch. Since Williams joined the Redskins in 2010, he has played under three head coaches (interim head coach Bill Callahan, Jay Gruden and Mike Shanahan) and many different assistant coaches. Williams has also been supervised by multiple general managers and related front-office officials (for instance, Bruce Allen, Scot McCloughan and Shanahan have all made personnel decisions at different times in the last decade). The Redskins have also retained different physicians, including head team physician Robin West, and different training staff since 2010. The team has also employed different attorneys.
In short, there are many persons employed by the Redskins who might have important insight on Williams’s allegations. The team will need to speak with those employees as well as former employees and also locate emails and other relevant records. How were Williams’s annual physicals conducted? Were important and necessary tests ordered? These are the types of questions the Redskins will explore.
Redskins officials will not automatically take the word of Williams. While his account might be accurate, he is not a neutral narrator of past events that involved him. Also, what Williams told the media in a brief locker room interview is not a complete record of facts.
The Redskins will be judged as things were, not as things appear in hindsight
In determining whether the Redskins erred in their treatment of Williams, the joint committee will not impose a standard of perfection nor will it be swayed by hindsight. The Redskins will be judged by whether the team provided reasonable health care in accordance with treatments and practices accepted by the medical community.
Stated differently, even if it proves true that the Redskins did not order a particular test and even if that test would have shown that Williams had DFSP, that doesn’t mean the team engaged in wrongful conduct by failing to order the test. The key question will be whether, given what was known and what should have been known, Redskins health care providers acted reasonably. The NFL could fine the Redskins should it be determined the team acted wrongly.
Williams could sue the Redskins but would face several hurdles
Williams could explore the filing of a malpractice lawsuit against the Redskins. He could argue that the Redskins owed him a right to reasonable care, that he received unreasonable care and that he then suffered harm as a result of the team’s failure to satisfy its duties.
There would be several hurdles before a lawsuit could succeed.
As a starting point, Williams would need to first exhaust his potential remedies under his contract and the CBA. A court will not review a legal controversy until it is “ripe.” This obligates a plaintiff to first try to solve a perceived grievance through private remedies contemplated in contracts.
By seeking a review under the CBA, the Redskins have already begun a grievance process. This will need to play out before a court would likely consider any lawsuit by Williams. In addition, Article 39 contains a dispute-resolution process for players who seek to complain about health care provided by their teams. Players can file complaints with the Accountability and Care Committee. It consists of a representative of the league, a representative of the NFLPA and six others who are “knowledgeable and experienced in fields relevant to health care for professional athletes.” The NFL and NFLPA each pick three of the six. A complaint is then directed to the league and the team at issue.
For their part, the Redskins would argue that Williams’s potential claims must be resolved exclusively through collectively bargained terms. The team could assert that any attempt to litigate an issue concern team health care ought to be preempted by the CBA. To that point, the federal Labor Management Relations Act generally preempts legal claims over topics addressed in a CBA.
Second, Williams must comply with applicable legal procedures for filing a medical malpractice complaint in the state in which he sought to litigate. In many states, an expert panel reviews a medical malpractice case before it proceeds to formal litigation. This is true in Virginia, where the Redskins are headquartered and where the team trains. In Virginia, two physicians, two attorneys and a judge assess whether the medical provider violated a duty of care to the patient and whether that violation caused the plaintiff’s injury. The panel’s assessment is not determinative on whether medical malpractice occurred but is important evidence should the case later go to trial.
In contrast, in Maryland—where the Redskins play home games at FedExField—a screening panel can be waived at the request of either party. However, Maryland law requires that a medical malpractice plaintiff offer, in writing, the opinion of a qualified expert in support of the claim.
No matter the procedure, a medical malpractice case can take years to litigate and involve the testimony and detailed reports of multiple expert witnesses. A medical malpractice case also typically involves insurance companies, which might have to pay all or a portion of any judgment against the physician and other health care providers.
Third, Williams would need to prove that he was harmed in a legal sense. Even if Williams could establish that the Redskins acted unreasonably, he would not prevail in a lawsuit unless he also proved that he suffered damages. He might argue, for instance, that the delay in diagnosing him led to an expansion of the growth and greater nerve damage in its subsequent removal. Williams could also maintain that the delay makes him more susceptible to a recurrence of cancer in the future (he would need expert testimony to establish that kind of point). Alternatively, he might claim that the experience has caused him psychological distress and that such distress has negatively impacted his NFL career. His holdout, which Williams says reflected distrust of the Redskins, cost him about $7 million.
On the other hand, there is no allegation (yet) that the Redskins refused to pay for any health care expenses related to Williams. Likewise, there is no reason to believe the team failed to handle costs in retaining a specialist or denied Williams a chance to obtain a second opinion. Also, the team has not released William and has been willing to pay him his contract so long as he reports to work (if the team cuts Williams, that could trigger a separate grievance procedure under Article 44 of the CBA). The Redskins can also maintain that a decision to holdout is one made by the player, not the team. Along those lines, Williams and the NFLPA could have filed a grievance against the Redskins months ago to address his concerns, long before he held out and lost money.
Fourth, Williams would need to establish that his claim is not barred by applicable workers’ compensation laws. Such laws require employers to purchase insurance for employees who are injured on the job. The insurance company then provides injured employees immediate reimbursement for medical expenses and lost wages. As a tradeoff, however, workers comp can make the employer immune from a lawsuit by an injured employee.
Lastly, if the Redskins employ their medical staff as independent contractors, rather than as employees, Williams would have a more difficult time establishing liability on the part of the team. Although employer liability for independent contractors and employees is a complex topic, generally speaking, employers are not liable for the negligent actions of independent contractors whereas they are liable for such actions by employees, especially when those actions occur within the scope of employment.
The MMQB will keep you posted on developments.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.