20 Second Timeout

Did the Warriors Recklessly or Negligently Risk Kevin Durant's Health?

The confirmation that Kevin Durant suffered a season-ending Achilles tendon tear is awful news that will inspire months--if not years--of hot takes. I don't do hot takes, so if you are looking for one then just keep moving and it will not be hard to find dozens of them.

Durant's injury raises some interesting medical and legal questions that are well worth discussing. Most people who have commented or will comment on this situation do not have the requisite background and training to speak intelligently about medical and/or legal issues. I am not presenting myself as an expert in either area but I am able to at least speak intelligently on both subjects.

Years ago, I worked as an American Council on Exercise (ACE) certified personal trainer and, since 2016, I have been an actively licensed attorney. Therefore, I have some qualifications to comment on both the medical and legal aspects of this situation, though I must emphasize that (1) I am not currently a certified personal trainer (because I elected to pursue a different career and thus did not keep my certification active), (2) I am not a medical doctor, (3) I have never seen Kevin Durant's medical records and (4) nothing in this article should be construed as medical advice or legal advice; I am just providing food for thought based on what is publicly known about Durant's injury and based on what I learned in the process of becoming a certified personal trainer and what I learned in the process of becoming a actively licensed attorney.

Bob Myers, Golden State's President of Basketball Operations, began his surreal press conference after game five by tearfully saying that no one should be blamed for Durant's injury but because he expects that in today's world someone will be blamed he places the blame on himself. When I listened to those words my first thought was that I was not sure if this was a basketball executive trying to figure out how to protect his employer from being sued, a sensitive human being who was at a loss for what to say or someone who was so distraught that he had not coherently written out his statement before he stepped in front of the microphone. One thing is for sure: Bob Myers does not get to decide who will be blamed, either in the subjective court of public opinion, or in a court of law if this matter ends up there.

Before we go too far down the path of looking at this situation through the lens of the law, let's look at the medical angle. What is publicly known is that on May 8, 2019 in game five of the Western Conference semifinals Kevin Durant suffered a right calf injury. That injury was severe enough to not only keep him out of game action for over a month but also to prevent him from doing on court activities until shortly before game five of the NBA Finals. According to published reports, Durant had not even participated in one full practice with the team until Sunday June 9, the day before game five. Golden State Coach Steve Kerr publicly stated that it was possible that Durant could return to action with no minutes restrictions upon completing just one full practice. Kerr and Myers have both insisted that Durant would not have played in game five if there were an increased risk of Durant suffering a serious injury.

Put bluntly, from a sports medicine standpoint that makes no sense. Four weeks of inactivity is going to affect the conditioning, strength and injury-susceptibility of a healthy professional athlete, let alone an athlete who is recovering from an injury. A tight, weakened and/or not completely healed calf muscle will change an athlete's gait and balance, putting additional pressure on other muscles and on connective tissues. Again, I will emphasize that (1) I am not a doctor and (2) I have not seen Kevin Durant's medical records--but, just applying a basic understanding of how the body functions and the specific, additional stresses placed upon a professional athlete's body, it is difficult to believe that Durant was not facing a heightened risk of injury by playing in game five. To suggest otherwise defies not only common sense but basic exercise physiology. Do Myers and Kerr expect us to believe that missing a month of practices, games and the regular conditioning routines has no effect on an athlete's strength, balance, flexibility and susceptibility to injury? That strains credulity even without considering what damage may have been apparent on an MRI and/or from a thorough, competent examination of Durant's injured calf.

So, the next question would be how much of an additional risk did Durant face and was it reckless or negligent to expose him to that risk? Let's be very careful and precise with terminology. From a legal standpoint, there is a certain amount of risk that is expected and tolerable; the mere act of playing a professional sport entails a heightened risk of physical injury compared to, say, sitting at a desk and typing on a computer. The act of playing a professional sport after sitting out for a month and then having just one practice before returning to full contact, full speed competition entails an additional risk--but it could still be true that no one is to "blame," to use Myers' term or, to use the legal terminology, no one is liable. It is possible that the additional risk was within generally accepted bounds for a professional athlete in superior condition.

Legal liability in such circumstances depends on an analysis of duty, breach of duty, causation and damages (some other factors might have to be considered as well but for simplicity's sake we will not do an examination of cause-in-fact, proximate cause and other concepts that are not clear-cut even to practicing attorneys). A full understanding of how legal liability is determined requires taking a torts class in law school but I will explain the aforementioned concepts as simply as possible and discuss how they relate to this specific situation.

As Durant's employer, the Golden State Warriors have a duty to not recklessly or negligently expose him to a risk of injury in the workplace. An obvious example of reckless or negligent conduct would be forcing the players to play on a basketball court that is slippery because it has condensation on it from a hockey game played in that arena the night before; that is why leagues and teams are justifiably cautious in such situations and have delayed or even canceled games if they cannot make sure that the playing conditions are safe.

Here, the question is what specific duty the Warriors in general--and the basketball operations staff and medical team in particular--owed to Durant. One duty that the Warriors owed to Durant is to provide competent medical diagnosis and evaluation. Was Durant's initial injury diagnosed correctly? Was the risk of further injury (1) calculated reasonably within the bounds of generally accepted medical practices and (2) was this risk clearly explained to Durant before he played? These are questions of fact and law that cannot be coherently answered in a 30 second soundbite.

Once it is determined what duty of care the Warriors owed to Durant, the next legal question would be whether or not the Warriors breached that duty. For example, hypothetically speaking, if standard accepted medical practice is that a person with a calf injury like Durant's should not engage in strenuous physical activity for six weeks but Durant played in an NBA Finals game before that time frame elapsed then one could argue that the duty of care was breached. The actual medical and legal analysis of that question would be a lot more in depth than just a one sentence statement, and it would likely require expert witness testimony.

You may be wondering about the writers/commentators who suggested that Durant could have come back sooner. If he returned to action in part because of their statements, are they to blame--at least in part--for his injury? Legally, the answer is clear-cut: No, they are not liable because writers/commentators have no duty of care regarding Durant's medical condition. It is not their job to know whether or not Durant could/should play and they are not responsible for what happened when Durant played. Now, from an ethical and moral standpoint was it sleazy to publicly question the heart and/or motivations of an athlete whose work ethic and dedication have never been in doubt? I would say that it was very sleazy. In general, unless a media member knows from personal observation and/or has reliable information from multiple sources that an athlete is not truly injured, it is a good practice to not tarnish the player's character and reputation. On the other hand, if a player says that his elbow is injured but you see him shooting one handed, half court shots with that arm during pregame warmups, it is legitimate to write what you observed and let readers form their own judgments (if you have followed the NBA playoffs closely for at least a decade, you know exactly what I am talking about).

Returning to the analysis of the Warriors' potential liability, if it would be determined that the Warriors breached their duty of care for Durant, then the next question would be if that breach of duty caused the damages. It is possible for a person or group of persons to breach a duty of care and yet not be liable for damages because it cannot be shown that the breach caused any damages. Again, this is a question of fact and of law. An obvious example of a breach of duty that did not cause the damages would be if Durant had played on an injured calf when he should not have played on it and then suffered a broken nose as a result of an errant elbow; the breach of duty regarding the treatment of his calf did not cause the broken nose. It is worth mentioning that a court would not likely accept the argument that the player would not have suffered a broken nose at all if he had not played when he should not have played; the court would likely hold that a broken nose from an errant elbow is a risk that is inherent in playing basketball, and that playing basketball on an injured calf did not make it more likely that the player would be elbowed in the nose.

If the duty of care is established, a breach of duty is demonstrated and it is shown that the breach of duty caused the damages then the next question would be to determine the amount of the damages. Here, damages could include medical costs, pain and suffering and, if Durant does not return to full health, a loss of potential future earnings.

Nothing in this article is meant to suggest that the Warriors did anything wrong medically, that they are liable legally or that Durant should or will pursue legal action against the team and/or the medical staff. It just seems to me that it makes more sense to calmly examine the situation within the relevant medical and legal framework as opposed to engaging in wild speculation or making big declarations that are not grounded in medical science and/or law. It will be interesting to read Michael McCann's take on this (if Sports Illustrated's resident legal expert chooses to write about it) but I expect that most commentary about Durant's injury is going to generate a lot more heat than light.

I wish Durant a speedy and full recovery. I hope that he received and continues to receive the best possible medical care--but, if he did not, our legal system provides an opportunity to pursue damages and remedies.

Labels: breach of duty, causation, damages, duty, Golden State Warriors, Kevin Durant

posted by David Friedman @ 2:36 AM

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