February 2016 - Parks & Recreation - 34

L AW R E V I E W

(1) The condition that Class' internal temperature be closely monitored
and (2) the condition that all exercise
be done at the discretion and under
the direct observation of a medical
professional.
In response, TU claimed the proposed accommodations were " unreasonable " and therefore not required
by the ADA because the requested
procedures " would not effectively
satisfy Towson University's safety
concerns " and " would not effectively reduce Class' risk of heatstroke. "
Moreover, TU contended these proposed accommodations " would require fundamental changes in the nature of the football program. "
As cited by the federal appeals
court, the ADA would not require a
proposed accommodation under the
following circumstances:
An accommodation is unreasonable...if there is a high likelihood
that the accommodation would not
effectively allow the disabled individual to meet the eligibility requirements, or if it requires a fundamental alteration in the nature of the
program.
In the opinion of the TU team
physician, the requested accommodations would not " effectively eliminate the risk of a second catastrophic
heatstroke. " On the contrary, according to the team physician, " Class' full
participation in the football program,
even with the proposed accommodations, would unacceptably expose
him to the risk of another heatstroke
that could be fatal. "
As described by the federal appeals
court, the role of the judiciary in
such cases was limited to determining
whether the team physician's " professional judgment was supported by the
record, " not " to agree or disagree with
Dr. Kindschi's opinion or to weigh
32 Parks & Recreation

whether her evaluation is more persuasive than another doctor's. " In this particular instance, the federal court found
the team physician's professional judgment was supported by the record.
As noted by the court, Class had admitted to an " inability to regulate his
body temperature and susceptibility to
heatstroke. " And, evidence at trial indicated " Class may be at an increased
risk of a reoccurrence of heatstroke as
a result of his original injury. "
Accordingly, the appeals court
found the opinion of the TU team
physician that " Class could not play
football without the risk of serious
injury or death was well supported. "
Unreasonable Health/Safety Risk
The only remaining issue was whether
it was reasonable for the team physician to conclude that the " temperature
monitoring accommodation would
not sufficiently reduce this risk " of serious injury or death.
Specifically, the team physician was
concerned " about the reliability of
where the electronic heat sensor was in
the GI system " because " digestion is a
fairly individualized and even day-today process. " As applied to Class, the
team physician found the team heat
sensor " unreliability would be compounded by the difficulty of figuring
out two-a-day practices with one CorTemp sensor. "
The team physician indicated " she
would not feel comfortable having
Towson University's trainers monitor
Class' internal temperature without
a physician present. " Moreover, even
if " well implemented, " the team physician found the monitoring program
" would not eliminate the meaningful
risk of catastrophic reinjury. "
As noted by the federal appeals
court, the expressed concerns of TU's
team physician were similarly reflect-

| F E B R UA R Y 2 0 1 6 | W W W. N R PA . O R G

ed in the testimony of the institute
officer who had issued the requested
heat tolerance report on Class. Specifically, the institute officer conceded
" the internal temperature monitoring
could not ensure that Class would not
suffer from another heatstroke while
playing or practicing. "
In the opinion of federal appeals
court, implementation of the requested monitoring procedure " would not
guarantee " that Class would be removed from participation " sufficiently
early " to avoid further injury. The court
found removing Class from football
activity would effectively " deny Class
the very participation that he seeks by
the accommodation. " In light of such
" serious caveats and precautions " surrounding a return to football for Class,
the federal appeals court found the
team physician's decision was reasonable under the circumstances.
Class could not play as the coach might
need if playing were to raise his internal
temperature to a dangerous level, which
itself would be an individualized threshold, would not be known with any certainty and would be predicted only as
a discretionary medical judgment that
could prove to be wrong...And no one
disputed that the monitoring effort would
be conducted against the continuous and
heightened risk of heatstroke and the reality that numerous athletes had died or
suffered serious injury from it - including Class himself.
Reasonable Medical Judgement
As noted by the court, the applicable
legal standard for reviewing the team
physician's decision was whether the
team physician's judgment was reasonable. In this particular instance, the
federal appeals court found the team
physician's decision was " supported
by legitimate health and safety concerns, manifested by the medical re-

February 2016 - Parks & Recreation

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