This has been quite the unfortunate feud. Buffalo Sabres forward Jack Eichel has a herniated disk in his neck and wants disk replacement surgery. The Sabres, however, want him to get the more traditional fusion surgery. As a result of this dispute, the Sabres have stripped Eichel of his captaincy. And now with the sides facing a stalemate, Eichel is reportedly considering filing a grievance.
Can he succeed? Here’s what you need to know.
The Sabres Are In The Driver’s Seat
The NHL’s collective bargaining agreement sets out the process for a player looking to get a team to agree to a medical procedure. As per Article 34 of the CBA, the player gets a medical opinion from the team physician. If the player doesn’t like it, he can then get a second medical opinion. If there is no consensus between the team physician and the second medical opinion, the player can get a third medical opinion.
When all the medical opinions are in, the decision reverts back to the team physician. That’s right: As a starting point, the team physician has the ultimate authority to decide the recommended medical procedure. That’s set out in Article 34.4 of the CBA, which provides that “the team physician shall determine the diagnosis and/or course of treatment … after consulting with the Second Medical Opinion Physician and the Third Physician Expert, if any, and giving due consideration to his/her/their recommendation(s).”
Eichel Would Still Have A Chance With A Grievance
This case would undoubtedly represent an uphill battle for Eichel. The CBA is pretty clear in granting the team physician veto power. That being said, Eichel would still have reasonable arguments at his disposal.
To start, and in keeping with Article 34.4, Eichel would need to establish that the team physician did not give “due consideration” to the legitimacy of the disk replacement surgery as a viable alternative medical procedure. Eichel would need to submit good evidence from a number of medical experts that his proposed treatment option was recognized as acceptable and made sense for a professional hockey player to get. There are two acceptable schools of thoughts on treatment, Eichel would argue, one being fusion surgery and the other being disk replacement surgery. On that basis, Eichel would maintain, the team physician failed to discharge his obligation to give the matter “due consideration.”
Bioethical principles have become central in health care. In order for medical care to be considered ethical, it needs to honor a number of principles, one of which is autonomy. This refers to the right of patients to make decisions about their medical care without undue influence. So Eichel could argue that his patient rights have been violated, particularly given that his proposed medical procedure is deemed acceptable by numerous medical experts.
There is also the issue of the doctrine of informed consent. Informed consent refers to individuals having the freedom to make choices about their medical care. In keeping with this principle, it is the patient, and not the physician, who decides if treatment is to be administered.
So here, if the Sabres succeeded in a grievance and Eichel agreed to get the fusion surgery, he could later argue that he never really provided his informed consent. To date, he has consistently opposed the Sabres’ treatment plan, and as a result, it could be argued that his consent is not legally enforceable. That’s potentially actionable.
This dispute is unfortunate. NHL Commissioner Gary Bettman was bang on when he described this battle as a “terrible situation.”
Ultimately, the Sabres stand on the stronger side of the case, although Eichel does have reasonable legal arguments at his disposal should he file a grievance.