By Justin B. Kozubal, MSA & Michael S. Carroll, PhD
On Aug. 23, 2019, Scott A. Lynch, MD (Plaintiff) filed with the Dauphin County Court of Common Pleas, 12th Judicial District of Pennsylvania, a civil action lawsuit for retaliation against numerous defendants including The Pennsylvania State University; Sandy Barbour, Vice President for Intercollegiate Athletics and Athletic Director at The Pennsylvania State University; Charmelle Green, Senior Associate Athletic Director at The Pennsylvania State University; James Franklin, Head Football Coach at The Pennsylvania State University; Penn State Health; The Milton S. Hershey Medical Center; and Kevin P. Black, MD, Chairman of Orthopedics and Rehabilitation of Penn State Health (Defendants). The plaintiff seeks a sum in excess of $50,000 plus interest and costs of damages.
Background
The plaintiff accepted employment with defendant, The Milton S. Hershey Medical Center, and The Pennsylvania State University in 1997 under the direct supervision of defendant Kevin P. Black, MD. In February 2013, Black appointed plaintiff the role of intercollegiate athletics team orthopedic physician for the Penn State football team. In August 2014, Black appointed plaintiff the additional role of Director of Athletic Medicine for Penn State Athletics.
The plaintiff served in the roles mentioned above until March 1, 2019, at which time defendant dismissed the plaintiff from those roles, but allowed him continued employment. Plaintiff cites standards safeguarding institutional governance of athletes, particularly standards designed to prevent coaches from having direct responsibility for or exercising undue or improper influence over the hiring or supervision of any member of the medical or athletics training staff who works with the coach’s team as a relevant policy to the retaliation claim.
The plaintiff further cites the recently adopted NCAA Bylaw 3.2.4 17 regarding protecting student-athletes and prioritizing student-athlete medical, such as support for good faith reporting of wrongdoing. Plaintiff claims he presented defendants, The Milton S. Hershey Medical Center and Black, a report of wrongdoing, which included examples of obstruction with compliance over standards of care by defendant James Franklin. The plaintiff also claims he sent a report of wrongdoing to Penn State University official, Mr. Robert Boland. The plaintiff alleges Franklin, created a culture and climate which obstructed rules for safeguarding the medical management of student-athletes and attempted to interfere with the plaintiff’s authority to determine medical management and return-to-play decisions.
Court documents state that on Jan. 24, 2019, defendants Sandy Barbour and Charmelle Green, demanded Black remove the plaintiff from his roles. Plaintiff claims that the demand for him to be removed from his role resulted from the plaintiff’s good faith reporting of wrongdoing under the provisions of the Pennsylvania Whistleblower Law, 42 P.S. § 1423. The plaintiff further claims that the demand of Barbour and Green, to remove him from his roles was influenced by Franklin. On Feb. 21, 2019, the plaintiff participated in an exit interview conducted by Penn State University human resources consultant Ms. Kristen Wright, and Penn State University Athletic Integrity Officer Mr. Robert Boland. During the Feb. 21, 2019 exit interview, the plaintiff provided Ms. Wright and Mr. Boland information regarding the alleged obstruction of medical authority by Franklin and provided a written list of recommendations for safeguarding student-athletes. On March 1, 2019 plaintiff was formally removed from his previous roles. On March 10, 2019, Black informed plaintiff by email that the written recommendations to safeguard student-athletes presented by plaintiff to Penn State University officials during the exit interview would not be supported due to insufficient information to agree or disagree with the recommendations. Plaintiff’s civil suit cites conspiracy to create a pretextual narrative in furtherance of a scheme and plan to retaliate against plaintiff for reporting wrongdoing with the meaning of the Pennsylvania Whistleblower Law; seven counts of violation of The Whistleblower Law; civil conspiracy to violate the provisions of The Pennsylvania Whistleblower Law; and two counts of violations of public policy from retaliatory adverse employment consequences. The plaintiff request punitive damages, interest, and damages for prejudgment delay, and further relief.
The defendants filed coordinated responses on Oct. 21, 2019, asking the Court to dismiss the suit, citing Pennsylvania’s statute of limitations. Defendants claim the plaintiff’s suit was filed after the 180-day deadline under the Pennsylvania Whistleblower Law. Court documents state that defendants removed the plaintiff from the Director of Athletics Medicine role on Feb. 4, 2019, giving the plaintiff until Aug. 4, 2019, to file a claim. The defendant’s written responses also claim the plaintiff was not adversely affected by the change because the plaintiff remains employed at The Milton S. Hershey Medical Center, and the plaintiff’s compensation remains intact.
In 2016, the NCAA in collaboration with the National Athletic Trainers’ Association approved new legislation aimed at providing medical staff, team physicians, and athletic trainers of Division I institutions “unchallengeable authority” and independence when evaluating student-athletes. The NCAA Committee on Competitive Safeguards and Medical Aspects of Sports requires member institutions to establish an administrative structure that provides independent medical care and affirms the unchallengeable autonomous authority of primary athletics health care providers to determine medical management and return-to-play decisions related to student-athletes. Furthermore, the committee states that medical authority should be established in the sole interest of student-athlete health and safety. To that end, the following 10 guiding principles are provided as examples of policies that can be adopted to assure independent, objective medical care for college student-athletes:
The physical and psychosocial welfare of the individual student-athlete should always be the highest priority of the athletic trainer and the team physician.
Any program that delivers athletic training services to student-athletes should always have a designated medical director.
Sports medicine physicians and athletic trainers should always practice in a manner that integrates the best current research evidence within the preferences and values of each student-athlete.
The clinical responsibilities of an athletic trainer should always be performed in a manner that is consistent with the written or verbal instructions of a physician or standing orders and clinical management protocols that have been approved by a program’s designated medical director.
Decisions that affect the current or future health status of a student-athlete who has an injury or illness should only be made by a properly credentialed health professional (e.g., a physician or an athletic trainer who has a physician’s authorization to make the decision).
In every case that a physician has granted an athletic trainer the discretion to make decisions relating to an individual student-athlete’s injury management or sports participation status, all aspects of the care process and changes in the student-athlete’s disposition should be thoroughly documented.
Coaches must not be allowed to impose demands that are inconsistent with guidelines and recommendations established by sports medicine and athletic training professional organizations.
An athletic trainer’s role delineation and employment status should be determined through a formal administrative role for a physician who provides medical direction.
An athletic trainer’s professional qualifications and performance evaluations must not be primarily judged by administrative personnel who lack health care expertise, particularly in the context of hiring, promotion and termination decisions.
Member institutions should adopt an administrative structure for delivery of integrated sports medicine and athletic training services to minimize the potential for any conflicts of interest that could adversely affect the health and well-being of student-athletes.
NCAA reference: http://www.ncaa.org/sport-science-institute/athletics-health-care-administration-best-practices-0
Court document: https://www.insidehighered.com/sites/default/server_files/media/423243811-Dr-Scott-Lynch-lawsuit.pdf
Justin B. Kozubal is an Executive Professor of Sport Management and a second-year Ph.D. student at Troy University, specializing in research related to sport law and risk management in sport and recreation. He resides in Marysville, Ohio, with his wife, April, and eight-year-old son, Cameron.
Michael S. Carroll is an Associate Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation. He has published over 30 articles and delivered over 50 presentations at professional conferences. He lives in Orlando, FL.
