By Vanessa Orr

Since 2021, the NCAA has allowed student-athletes to receive compensation from third parties by using their personal brand, which is often referred to as their name, image and likeness (NIL). One unforeseen consequence of this rule is that physicians who treat these athletes are now at greater risk of being sued when injuries sideline or stop their careers.

Tom Murphy

“Though college athletes are now allowed to make money, there haven’t been a lot of controls put in place about the way that it is done,” says Tom Murphy, SVP National Healthcare Practice, Risk Strategies. “University or college boosters and others affiliated with these institutions put together money in a separate fund to pay athletes to play at their schools. As you might imagine, this creates an inequity with some larger universities who pay millions of dollars to get top players.”

An offshoot of this is that physicians who treat these college athletes may now face high-profile lawsuits if an injured player contends that his or her career was diminished or ruined due to surgery or treatment that didn’t turn out properly or was incorrectly done, Murphy added. Team physicians can also be sued for misdiagnoses and more.

“Anytime you introduce money and lawyers into anything, there are going to be side effects,” said Murphy. “The issue is growing because of how much money these athletes are making now. For example, a college quarterback who took the University of Georgia to the playoffs transferred to the University of Miami because he was offered $6 million. Full-ride scholarships are no longer enough.”

According to Murphy, athletes have won millions of dollars against orthopedists and other physicians on the pro level, though those teams typically protect the physician. If a physician carries their own liability, however, coverage of $250,000 per claim and $750,000 aggregate, or even $1 million per claim or $3 million aggregate is woefully inadequate for these athletic claims.

Kyla Murphy

“Nuclear verdicts have ranged from $40 million to $200 million,” said Kyla Murphy, AVP National Healthcare Practice, Risk Strategies. “For this reason, physicians now are looking at establishing minimal coverage limits.”

She adds that these costs could then be passed down to everyone else, which may result in increased prices to attend games, among other factors.

Another concern is that unlike a typical person who gets hurt, there is immense pressure on college athletes to continue to play, and on their physicians who are expected to get them back in the game.

“A person with a bicep or groin injury, for example, could reinjure the muscle if they return to the sport too early,” said Tom Murphy. “There are situations where players have said that they were forced by the team and team doctors to play before they were fully healed. There is additional exposure and pressure on everybody to get talented players back in and playing when they should sit out longer.”

Another unintended consequence is that this pressure may cause physicians to do things that are medically unnecessary, like ordering extraneous tests. “Even if an athlete has a simple injury, the doctor may order a $1,500 MRI because of their potential exposure,” said Tom Murphy.

Facing these types of risks, as well as increased premium costs as a result of this exposure, many physicians and physician groups are deciding that it may not be in their best interest to serve as team physicians.

“With college athletes being paid through NIL, we’re starting to see more and more physician groups and doctors in general not jumping in to be team physicians,” said Tom Murphy. “Insurance companies are also more wary, and there are now a limited number of insurance companies who will even consider writing the coverage.”

Kyla Murphy adds that if a school cannot provide proper medical care, they will lose the athletes they seek to attract and that these types of lawsuits can also destroy long-term relationships between physician groups and the teams they treat.

One possible solution is to indemnify the physicians, limiting their exposure.

“In states where they can’t find doctors to treat these athletes, they could use tort reform or malpractice reform to have athletes sign affidavits indemnifying and holding harmless the physicians who treat them unless it’s an egregious injury or mistake,” said Tom Murphy.

“Texas and California currently do this; Florida did, but the reforms were removed 10 years ago because they were ruled to be unconstitutional,” he added. “But in a situation like his, these reforms should potentially be put on the table; otherwise, colleges and universities are going to have a hard time finding team physicians to treat injured players.”

For more information, contact Kyla Murphy at Kyla.murphy@risk-strategies.com or Tom Murphy at tmurphy@risk-strategies.com or call 800-966-2120.