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Ex-NFL Player Can’t Score Medical Records

Friday, February 24th, 2012

Steven WardAnyone who watches NFL games each week is witness to organized warfare, with players delivering excruciating and merciless blows to the opposition. To deal with the frequent injuries, players are often given a shot of the painkiller Toradol, known medically as Ketorolac, before games.

A dozen former NFL players have filed a class-action in U.S. District Court in New Jersey against the league, claiming that they weren’t warned of the consequences of taking the drug. The players allege that among other side effects, Toradol masked pain, which masked the symptoms of concussion. Playing through their head injuries, the suit states, has brought on long term debilitating conditions, such as “anxiety, depression, short-term memory loss, severe headaches, sleeping problems and dizziness.”

If the NFL is taking these allegations seriously, it has a funny way of showing it: it still permits the painkiller to be administered during play.

In a recent NY Times op-ed, former Denver Broncos player (2003-2008) Nate Jackson, who is not a party to the lawsuit, wrote of his own experiences with the drug, which included routinely lining up with his teammates before games for injections. He was never quite sure why.

As to how much Toradol he was given during his tenure with the Broncos, or the results of any tests given at the time of his playing, the op-ed was silent — not because Mr. Jackson didn’t want to tell us, but because he couldn’t.

He can’t access his medical records: “Even after I filed a workers’ compensation lawsuit against the Broncos a year ago that later included a request for that folder,” he writes, “I still don’t have it. The team hasn’t released it to me.”

How can this be? All of us have an absolute right to our medical records, right?

Wrong.

In the leading case on the subject, the Second U.S. Circuit Court of Appeals ruled in 1975 that that we patients don’t have a constitutionally protected rights to direct and unrestricted access of our medical records.

Partly to remedy that incongruity, in 1996 the Department of Health and Human Services passed Health Insurance Portability and Accountability Act (HIPAA), a federal regulation granting people a general right to access (not ownership) of their medical records. This regulation requires a “covered entity” to furnish either a copy or access to the records within 30 days of a patient’s request.

OK, now we’re talking. So Mr. Jackson has a legal right to see his records immediately, right?

The medical care model in professional sports has made for an interesting dynamic among the doctors, teams, and players. The current trend is for the doctors to be supplied by hospitals who pay the team to use their services in exchange for advertising and other perks. If this is how Mr. Jackson was treated, and he’s made his request to the doctors and hospitals that cared for him, he has a valid claim under HIPPA to view his records.

But if a full-time team physician employed exclusively by the Denver Broncos treated him during his NFL years, it doesn’t seem as though the Denver Broncos would be considered a “covered entity”.

State laws may provide more access rights than the floor set by HIPPA and most states have medical access statutes that recognize patients’ right to access their records. In Colorado, for example, where Mr. Jackson’s medical treatment primarily took place, state law recognizes the patient’s right to access his medical records “at reasonable times and upon reasonable notice.”

We’ve found no case law that directly pertains to Mr. Jackson’s situation – and we tried.

Anyone with comments or thoughts, we invite you to weigh in.

This blog originally appeared in Legal as She is Spoke, a project of the  Law and Journalism track at New York Law School, on February 22, 2012. Reprinted with permission.

About the Author: Steven Ward (3L) proudly hails from the Jersey Shore. He graduated from the University of Massachusetts at Amherst with a bachelors degree in Sport Management. Steven has completed internships with Major League Baseball, the Washington Nationals, the NYC Office of Emergency Management and the NYPD. Steven looks forward to working in the sports and entertainment industry.

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