The Yankees, Dellin Betances, and Informed Consent Laws

Unless you’re a time-traveling visitor from 900 years in the future, you’ve probably heard that the Bronx Bombers have been struck by a rash of injuries early on this season. Among the more eyebrow-raising of those maladies was the revelation that key setup reliever and very tall human Dellin Betances had been sidelined with a bone spur. As Randy Miller reported for NJ.com:

What’s really interesting about Betances’ ordeal this week – his setback in Tampa, return to New York and second MRI – is Friday night’s revealing that he’s been pitching with a bone spur in his throwing shoulder since high school that never has affected his pitching.

More interesting, GM Brian Cashman said on Friday night that the Yankees have known about the bone spur since Betances had an MRI before signing his first pro contract as a teen in 2006 … and Betances saying Saturday morning that he first heard of it on Friday night.

That’s right – it appears the Yankees knew for over a decade that their right-handed relief ace had a bone spur, and they didn’t tell said right-hander about it.

“I guess from the previous MRIs I’ve always had it,” Betances said Saturday. “I didn’t know about it until now. But, yeah, I’ve always had it. I always come into spring and I feel, I guess .. a little stiff, But for me it usually gets better and this time it wasn’t. That’s pretty much what happened.”

Why did the Yankees never tell Betances about his bone spur?

“He hasn’t had the inflammation before,” Cashman said. “On the various testing we’ve done since we signed him … (After) drafting (Betances) I gave him a $1 million to sign rather than go on to college, and you do a physical and there’s an MRI, and right away that was (a bone spur that was) an incidental incident, meaning it’s not affecting him.

“There is something there. It’s inconsequential, non-symptomatic. He hasn’t had to deal with this. It’s had no affect on his game or pitching in anyway shape or form. The various times we imaged him, if it was for insurance or whatever reason, it’s always been there, but it’s never been something that’s caused a problem.”

There’s a lot to unpack here, but let’s start with this: the Yankees not only knew that Betances had a bone spur, they imaged it for insurance purposes. At the same time, they didn’t tell Betances because, as Cashman put it, it was “incidental” and largely asymptomatic. The uniform Major League Baseball contract required Betances to warrant that he has “no physical or mental defects” that would “prevent or impair” his ability to play baseball. The Yankees knew Betances had such a defect, and didn’t tell him. Worse, they had a number of contentious arbitration hearings with the right-hander. In hindsight, Randy Levine’s comments that Betances was “a victim” of his agent’s “overreach,” and comparison of Betances to an astronaut, seem even worse when one considers that the Yankees knew Betances had a medical condition and had seemingly disclosed that to insurance companies but not the player himself.

While this was going on, the Yankees used Betances a lot. Between 2014 and 2018, the Yankees called upon Dellin for 373.1 innings, by a significant margin the most in major league baseball among qualified relievers (Yusmeiro Petit is a distant second at 355.1 innings). During that timeframe, Betances threw a whopping 6,226 pitches, more than any other reliever in baseball, and almost three hundred pitches more than second-place Brad Brach. To put it another way, Betances appeared in 349 games during that span, fifth-most in baseball — an average of 73 innings pitched and 68 appearances per 162 games. And he did it all while averaging 97.4 mph with his fastball, sixth-hardest in baseball among relievers. The Yankees, in short, knew Betances had a medical condition (albeit one they described as “inconsequential, non-symptomatic”) that they didn’t tell Betances about and used him a great deal anyway.

A few years ago, law professor Michael McChrystal wrote about the intersection of health law and professional sports for the Marquette Sports Law Review. There, McChrystal noted that failure to disclose injuries was not a new problem, and in fact was at the center of the (since-settled) NFL concussion litigation.

As between the player and the team, the guiding principle of disclosure of medical information is transparency. How well this principle is applied is open to some doubt. . . . commentators have suggested that the team may be less concerned with the player’s health than with the player’s availability to perform and, so, fall short on candor, as well.

In theory, doctors have an ethical obligation to disclose the existence of the bone spur to Betances. At the same time, unlike the NHL and NFL, McChrystal noted that the MLB CBA doesn’t include language specifying that the team doctor owes a primary duty of care to the player instead of the team. Does that let the Yankees off the hook?

Ordinarily, failing to disclose a health condition to a patient would be a serious violation of the Health Insurance Portability and Affordability Act (“HIPAA”). If you’ve ever been to a doctor’s office and signed a privacy policy disclosure, that’s basically the doctor’s office telling you how they’re going to use your health records as HIPAA requires. However, as we’ve discussed before, HIPAA may not apply at all to professional sports teams. As Barbara Osborne and Jennie Cunningham wrote in an excellent article for the Marquette Sports Law Review:

Under the statutory language of HIPAA, most of the medical staff employed by professional sports teams would almost certainly be considered healthcare providers subject to the privacy and security requirements of HIPAA. . . . However, [the Department of Health and Human Services] issued a response during the notice and comment period that communicates the opposite effect: DHHS first noted professional sports teams were “unlikely to be covered entities” that would need to abide by HIPAA privacy rules. Further, even if teams would be covered or partly covered, DHHS noted that—although it did not condone a blanket reduction of privacy for an entire group of individuals (like players), it is fully within the purview of employers to “mak[e] an employee’s agreement to disclose health records a condition of employment” (as is maintaining a certain level physical fitness). DHHS adopted language “excluding employment records maintained by a covered entity in its capacity as an employer from the definition of ‘protected health information.’” Operationally, the effect of the guidance is to affirm teams’ power to compel players to disclose health information (waive HIPAA privacy) and subsume the information into the employment record of each player. Once considered part of the employment record, the contents of the record are not viewed as protected health information.

At the same time, there are some that take a different view, believing that while teams, as employers, aren’t covered entities under HIPAA, their doctors and physicians are. The Journal of Urgent Care Medicine has taken the view (I think correctly) that patients own the information contained within medical records, even when those records are held by an employer. And as attorney Elizabeth Litten wrote, the federal government has now taken the position that “a professional athlete has the same HIPAA rights as any other individual.”

This divide means that the Yankees, as an entity, almost certainly didn’t violate HIPAA. But the problem is that even if HIPAA didn’t exist, the Yankees’ team physicians could face a potentially significant legal issue here.

It’s long been the law in every state that doctors are legally required to disclose a diagnosis to a patient. In a case called Cobbs v. Grant, the California Supreme Court stated that every time a doctor touched a patient without disclosing a diagnosis or the real risks of a procedure, the doctor committed a “technical battery.”

We employ several postulates. The first is that patients are generally persons unlearned in the medical sciences and therefore, except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity. The second is that a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment. The third is that the patient’s consent to treatment, to be effective, must be an informed consent. And the fourth is that the patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the physician that transcends arms-length transactions. From the foregoing axiomatic ingredients emerges a necessity, and a resultant requirement, for divulgence by the physician to his patient of all information relevant to a meaningful decisional process.

The law in New York, which would be applicable here as the state where the Yankees are located (and, presumably, where most of this imaging was conducted) has barred withholding information from patients for much longer. In 1914, future U.S. Supreme Court Justice Benjamin Cardozo wrote that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body” and that a failure to do so “is not merely negligence. It is trespass.” That decision has now been codified in New York by statute:

Every patient shall have the right to receive adequate and appropriate medical care, to be fully informed of his or her medical condition and proposed treatment unless medically contraindicated, and to refuse medication and treatment after being fully informed of and understanding the consequences of such actions.

So if a medical practitioner didn’t disclose to Betances the existence of the bone spur, that is a violation of New York state law, full stop. This law, at least, doesn’t care that the doctor worked for the Yankees. It should be noted that much of this imaging may have taken place elsewhere – perhaps Florida, where players have their annual preseason physicals. But Florida law is largely the same as New York law on this issue.

What about MLB’s Collective Bargaining Agreement? Although the CBA requires players to disclose their medical records to teams, nothing in the CBA allows teams to withhold those records from the players themselves. In fact, just the opposite is true. Page 57 of the CBA requires teams to make available at least two medical specialists for players to seek second opinions of diagnoses made by team doctors. Page 60 limits the disclosure of medical records and treatment by team physicians, but it doesn’t authorize withholding that information from the player. Page 61 requires that health information be provided to the MLBPA in response to a grievance or a written request. And page 61 even requires that all medical examinations performed for a visiting player must be disclosed to that player as well as the visiting team. On Page 205 of the CBA — Attachment 18 — is an authorization form that players sign to release their medical records to teams. It expressly states that medical information continues to belong to the player, and that the player can revoke the authorization at any time without penalty.

Now, there’s still a lot we don’t know. Hopefully, this is an isolated incident. And it may very well be that the Yankees and team doctors (incorrectly) believed that the bone spur wasn’t severe enough to warrant disclosure. This may be nothing more than a single innocent mistake. But it’s worth noting that the NFL didn’t end up making a massive payout in the concussion case because of the concussions themselves; they settled the case because the players could prove that the league had withheld information about concussions from them. All of this is a long-winded way of saying that Betances’ bone spur might be a symptom of a much larger problem.