Appeals Court Affirms Ruling Against Pro Athlete

May 23, 2008

A Georgia state appeals court has affirmed the ruling of a lower court, which granted summary judgment to an athletic trainer, who had been sued for medical malpractice by a player on the Atlanta Hawks basketball team.
In so ruling, the court found that the trainer fell within the exclusive remedy provision of the Workers’ Compensation Act, O.C.G.A. § 34-9-11.
Plaintiff Roshown McLeod played basketball for the Atlanta Hawks from 1998 until 2001. He alleged that he was injured in the course of his employment on July 15, 2000, and was subsequently treated by Walter Blase, a certified athletic trainer, until the Hawks traded McLeod to another team. During the treatment period, Blase was a certified athletic trainer employed by the Hawks in its “sports medicine department.” He was not a physician. McLeod alleged that Blase negligently treated his injury, and, as a result, McLeod’s otherwise-treatable injury became permanent, preventing him from playing professional basketball.
McLeod argued that a judicially-created exception exists to the exclusive remedy provision of the Georgia Workers’ Compensation Act, which allows an employee who is injured by a fellow employee’s professional negligence to bring a professional malpractice action against that fellow employee.
The exclusive remedy provision of the Act provides, in pertinent part, “[t]he rights and the remedies granted to an employee by [the Act] shall exclude all other rights and remedies of such employee . . . on account of such injury, loss of service, or death[.]” OCGA § 34-9-11 (a).
The rationale for this exclusion is a trade-off or quid pro quo between employer and employee. The employer is insulated from direct common law tort liability in exchange for providing the whole array of workers’ compensation benefits to the employee regardless of any negligence involved in any accidental injury. The employee forgoes his common law rights, including claims for pain and suffering, in exchange for this broad workers’ compensation coverage. James B. Hiers, Jr., et al., Georgia Workers’ Compensation Law & Practice, § 8-1 (5th ed., 2007 update).
The trial court rejected McLeod’s contention that actions for professional malpractice generally are excepted from the exclusive-remedy provision of the Act and held that the exception is applicable only to physician co-employees sued for medical malpractice.
McLeod appealed.
The court noted that although there is case law that “suggests that the exception to fellow-servant or co-employee immunity could apply to other ‘professionals’ in addition to physicians, the exception has thus far been applied only where an injured employee brings a medical malpractice action against a company physician.
“… We find no authority for concluding that the exception automatically applies whenever a defendant co-employee is a professional who is subject to the authority of a professional licensing board. See Title 43, the Georgia Professions and Businesses Code. We also find no authority for concluding that certified athletic trainers are, like physicians, classified as professionals whose ‘foremost obligation’ is ‘adherence to the public interest’ and whose professional status ‘raise[s] a unique duty of trust over and above the duties of co-employees.’ To allow McLeod’s suit against Blase would substantially restrict the scope of the exclusive remedy provision of the Act. The trial court did not err in declining to apply the … exception to certified athletic trainers.”
McLeod v. Blasé; Ct. App. Ga., 3rd Div.; A08A0582., 2008 Ga. App. LEXIS 313; 3/18/08


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