Tua Tagovailoa’s questionable medical care could turn into a malpractice controversy, but any litigation would face hurdles—especially on account of the collective bargaining agreement.
The unaffiliated neurotrauma consultant (UNC) who treated the Miami Dolphins QB during the Sept. 25 game against the Buffalo Bills was fired by the NFLPA. The UNC allegedly made multiple mistakes while clinically evaluating Tagovailoa and approving his return to play.
Tagovailoa was injured in the first half when Bills linebacker Matt Milano shoved him, causing Tagovailoa to fall backward and hit his helmet against the turf. Tagovailoa stumbled, left the game and went to the locker room before returning in the second half. Tagovailoa played four days later against the Cincinnati Bengals and suffered another injury when he was sacked by defensive lineman Josh Tupou. Tagovailoa was taken off the field by stretcher and admitted to the University of Cincinnati Medical Center. He was diagnosed with a concussion and discharged. There’s no timetable for his return.
The NFLPA’s decision to fire the UNC so quickly—less than a week after the game and only a few days after a league spokesman said “every indication” suggested the doctors involved followed applicable rules—is telling. It suggests Tagovailoa may have been the victim of negligence and might have remedies under the law.
Typically, when a healthcare professional is accused of erring, there is a deliberative and lengthy process to evaluate that alleged error. The professional is normally accorded time to rebut the allegation and an opportunity to contend their decision was reasonable under industry practices. Sometimes the professional submits the opinions of others. These are all relevant considerations for patients harmed by the alleged misconduct and who pursue malpractice litigation.
Considering the timing of events, it’s unlikely the UNC was afforded a full review process, but there could be other reasons for that, including employment and labor laws and the league’s arrangement with UNCs.
Under the CBA, a UNC must be a physician who possesses applicable expertise, such as in neurology or emergency medicine, and must be “impartial and independent from any club.” The NFL, Head, Neck and Spine Committee assigns a UNC to a team only with the approval of both the NFL Chief Medical Officer and the NFLPA Medical Director.
According to league documents, three UNCs are “on staff” at each game, with two on the sidelines and one in the booth. A UNC works in consultation with a team physician, who makes the ultimate decision on whether a player returns to a game, on “identifying, screening and diagnosing concussions.” Either the league or union can fire a UNC, whose primary employment is not with the NFL but rather with hospitals, medical schools and other healthcare employers.
Given other employment and their role as a consultant, a UNC is likely classified under the law as an independent contractor, rather than an employee. This means their ability to contest a dismissal would be narrower than as an employee and limited to protections spelled out in the contract and under state law. If the fired UNC believes the dismissal was unwarranted, he could bring a lawsuit against the league and union for breach of contract, among other potential claims, unless he waived the right to sue as part of his contract.
Tagovailoa’s rights, meanwhile, are impacted by his union membership. Many—but not all—potential player lawsuits are preempted by the CBA and its requirements to arbitrate disputes. In appendix Y (“Neurocognitive Benefit Release and Covenant Not to Sue”), a player consents to not sue under the tort laws “of any state” for “any head and/or brain injury sustained during his employment by the Club.” Attorneys can challenge releases on several grounds, but they stand as an obstacle. Injured players can also seek compensation through workers’ compensation insurance, though workers’ comp laws vary by state and can foreclose the opportunity to sue.
Still, another QB, Tyrod Taylor of the New York Giants, is currently suing the Los Angeles Chargers team doctor for medical practice and medical battery over treatment of a rib injury. Taylor blames the doctor for a pneumothorax (collapsed lung), while the doctor insists Taylor consented to the risks of the treatment that caused the injury.
Thus far, Tagovailoa has assured the public he feels “much better” and is “focused on recovering” so that he can return to play.
The league and NFLPA are investigating why Tagovailoa was cleared to return and intend to make a report public. They are also planning on jointly revising concussion protocols, as is their right under labor law.
In Sunday’s game between the New England Patriots and the Green Bay Packers, a UPC drew mention on the broadcast when Patriots’ quarterback Brian Hoyer suffered a head injury midway through the first quarter. Hoyer was ruled out for the remainder of the game and rookie QB Bailey Zappe took over. The Patriots, who went on to lose 27-24 in overtime, had no other QB, as starter Mac Jones missed the game with an ankle injury.
