By Dylan F. Henry, Esq., Kacie Kergides, Esq., and Kimberly Sachs, Esq., of Montgomery McCracken Walker & Rhoads LLP
In late July 2017, professional football player Delvin Breaux, then-cornerback for the New Orleans Saints, injured his left leg during summer training camp. He sought treatment from the team doctors—two orthopedists employed by Ochsner Medical Center—who, based on multiple X-Rays and MRIs, determined Breaux had a lower leg bruise or “bone contusion.” Unfortunately, Breaux had actually broken his fibula, and he continued to play on his broken leg, unbeknownst to him, until mid-August. When his pain still had not subsided, Breaux sought a second opinion at Tulane University Medical Center. That was when he learned that he had fractured his leg.
Breaux is no stranger to injuries sidelining him. In high school, he suffered a catastrophic cervical spine injury, and his doctors said it was “a miracle” he survived the injury and was still alive. He continued to play football despite this injury and received a scholarship from Louisiana State University. The LSU doctors never cleared him to play because of his spine injury, but Breaux eventually played for teams in the Gridiron Developmental Football League, the Arena Football League, and the Canadian Football League. He joined the NFL with the Saints in 2015.
Breaux underwent surgery to fix his broken fibula. He was placed on the injured reserve list, and he not only missed the entire 2017-18 season, but he also never suited up for the Saints, or any NFL team, again. The 2017-18 season was supposed to be Breaux’s comeback season, as he was sidelined from another fibula fracture and shoulder injury the year prior. Though Breaux led the Saints in interceptions in 2015, the Saints did not sign him to a new contract. As for the team doctors who “misdiagnosed” Breaux, the Saints fired them and overhauled the medical staff, but the damage was already done as far as Breaux was concerned.
On September 24, 2020, Breaux filed a lawsuit against the ex-team doctors and their employer, alleging medical malpractice. He claimed, among other things, that the doctors mismanaged his medical care, misdiagnosed him with a bone contusion, and failed to diagnose him with a fractured fibula. Because medical malpractice suits may only be brought against medical providers, Breaux did not name the Saints as defendants in his suit.
Breaux’s lawsuit is still in the beginning stages, and whether he succeeds in court remains to be seen. This case, however, provides important learning lessons for medical providers faced with similar allegations of medical malpractice.
First, Breaux’s lawsuit confirms that preventing litigation is nearly impossible. Under Louisiana law, medical malpractice claims must first be presented to a medical review panel before a lawsuit can be filed. Here, the panel “concluded that all defendants met the standard of care.” Notwithstanding that finding, Breaux still had the right to file suit in court—and he did. A jury may very well disagree with the panel’s finding and instead conclude that the team doctors misdiagnosed Breaux and mismanaged his medical care. The panel’s decision is just a potential roadblock to litigation—not a stop sign.
Second, Breaux’s lawsuit highlights the importance of documenting the basis for a diagnosis and keeping a clear line of communication open with athletes at all times. In this case, the doctors ideally would have told Breaux that they believed he had a bone contusion based on the medical imaging (and documented this conversation in Breaux’s medical records) but informed Breaux that certain injuries, such as broken fibulas, are often unnoticeable on initial X-rays and MRIs. The doctors also should have advised Breaux to keep an eye on his pain level and told him to come back if his injury did not subside in a few days (again, documenting these conversations in Breaux’s medical file). When Breaux did return a week later, the doctors should have pivoted their care protocol, recognized that the medical imaging may not be telling the whole story, and listened to Breaux’s complaints to better understand what was going on with his leg. Had the doctors had an open dialogue with Breaux about his injury and pain, they may have discovered the fractured fibula before Breaux sought a second opinion at Tulane.
In interviews with the press, it was clear that the doctors’ failure to clearly layout the basis to their diagnosis, and the potential for it to be wrong, lead to unnecessary tension in the locker room. Breaux discussed the tension his misdiagnosis caused between him and Saints’ head coach, Sean Payton. Breaux was obviously in pain playing on a broken leg, and Payton was relying on the medical opinions from the team doctors, thinking that Breaux only had a contusion. Breaux stated that he felt a sense of betrayal towards Payton, and that they “were not on good terms . . . I was telling him something was wrong with my leg, something was bothering me, I knew something was wrong with my leg. And he just said, ‘Oh the doctors say this and that’ and I’m like, hey man, can we address this situation in private? Instead of humiliating me in front of my team? Because that’s embarrassing.” There were also reports around this time that the Saints were seeking a trade for Breaux because they were tired of the cornerback’s injuries. All of this tension could have possibly been avoided, and the relationship between Breaux and the Saints maintained, had the team doctors accurately diagnosed the injury in the first place, and, in the very least, kept all interested parties (the player and the coach) updated on how the diagnosis could be wrong.
Finally, in the sports litigation world, there is a heightened focus on student-athlete injuries and lawsuits against high schools, colleges, and universities. This case serves as a reminder that professional athletes are also common litigants, and the stakes are often much higher in professional athlete cases. Here, Breaux is a high-dollar plaintiff; he had a $1.6 million contract with the Saints, and he received other performance-based incentives. He is likely able to afford top-notch lawyers and fight this case tooth-and-nail until the very end. Although Louisiana caps medical malpractice damages at $500,000, there is no limit to compensation for future medical expenses, and the cost of litigation may be enough to force the doctors to settle Breaux’s case.
In high-risk sports such as football, injuries are inevitable. Returning to peak performance in the shortest amount of time is critical. Unfortunately, Breaux is not the first NFL athlete to suffer a career-ending injury. While not every injury is the result of malpractice, injuries, big or small, open the door to lawsuits. This case should serve as a reminder to doctors that despite maintaining the standard of care, a lawsuit is always possible.
