Is there positive duty at law to prevent an athlete with a serious medical disability from perfomance, despite the player accepting the risk? Is high risk of serious inyury 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 contract and present a conflict between a person's rights to have freedom to contract and negligence. Contract shift the risk. An athlete can be disqualified to avoid a significant risk of injury that cannot be eliminated through reasonable medical accomodations.
The problem is that phsicians 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 must substantiate the restriction by justifying a relatively certain and substantial risk. An athlete may agree to accept negligence.
Independent legal advice and advice from medical experts ensure that such waivers are legally enforceable.
10 th August, 2010
World congress on medical law in Zagreb