Looking for a Way to Play : Hagins, Arizona State Differ on Heart Defect

IRVINE —  Stephan Hagins knows that what happened to Hank Gathers, to Earnest Killum, to Reggie Lewis, could happen to him. He knows playing competitive sports with a heart valve defect could kill him.

“This might sound crazy, but I’m willing to go out that way,” Hagins said.

Arizona State University is not willing to give him that chance, though. The school, citing a noted heart surgeon’s recommendation that Hagins stop playing competitive sports, has not allowed the former University High School standout catcher to participate in fall drills with the Sun Devil baseball team.

Hagins, an 18-year-old freshman, offered to sign a waiver absolving the school of any liability should he suffer a catastrophic injury, but it declined to accept. Having exhausted his appeals with the university, Hagins has threatened to take the matter to court, where he might seek an injunction ordering the team to reinstate him until a judge can hear his case.

The Hagins situation has sparked many of the same medical, legal and moral questions that arose in the wake of the sudden deaths of Gathers, the former Loyola Marymount basketball star who died in 1990, and Killum, the former Oregon State basketball player who died in 1992.

Who is ultimately responsible for the health and welfare of college student-athletes? Can a university prohibit a medically suspect student-athlete from participating in a particular sport? Who should have the final say in determining whether a student-athlete with a heart defect plays? The school? The team physician? The athlete?

There are no easy answers, but Hagins isn’t so concerned about the broader implications of his case. He merely contends that it’s his life; he should be able to do what he wants.

And what he wants to do is play.

“I believe I’m on this earth to play baseball,” Hagins said. “If a doctor tells me I’m going to die if I play baseball, that’s the only time I’ll stop. But until they say that, I’ll keep playing.”

If only it were that simple. Hagins is the central figure in this case, but swirling around him are university officials who fear the adverse publicity and potentially damaging litigation that could result from an athlete dying on the playing field, and physicians who don’t want to risk malpractice suits by clearing a medically suspect student-athlete to play.

“What they have to balance is the health and safety of the athlete compared to the opportunity to participate in college athletics,” said James T. Gray, assistant director of Marquette University’s National Sports Law Institute.

“As a result of the well-publicized Gathers case and the ($32.5 million in) lawsuits that followed, schools have been reluctant to allow students with heart conditions to compete. It’s really the school’s obligation to not allow that individual to play, even though he’s willing to sign a waiver.”

Hagins says he understands Arizona State’s reasons for keeping him out of action, “but the point is, I want to play ball, and there are ways of getting around it,” Hagins said. “It’s all political. I understand the school’s point, but they took that risk when they signed me.”

It’s difficult to determine the risk of serious injury should Hagins compete, but Shirley Hagins, Steve’s mother, said doctors have told her it’s less than 1%. Hagins doesn’t believe there’s a risk.

“I’m not going to pass out and die,” he said. “Doctors say (there’s a risk) to cover themselves because of malpractice suits. But I’m definitely not going to be a statistic. That’s not much when I’m in the ground and buried, but I’m not going to be a statistic.”

What a wonderful life it was for Hagins last spring. A 6-foot, 205-pound catcher for University, he was in the thick of a senior season in which he batted .507 and earned Times All-Orange County first-team honors.

His father, Guerry, his No. 1 fan and adviser, underwent successful bypass surgery in early May, and his prognosis looked good.

Hagins was rated one of the top prospects in the nation by the Major League Scouting Bureau, but he also had the option of playing for one of the nation’s top college programs when he signed with Arizona State.

Pro scouts and Arizona State coaches knew of Hagins’ heart-valve condition, but Hagins had been cleared to play through high school and could perform at a very high level, so they weren’t concerned.

Then on June 1, two days before the pro draft, Hagins’ father died of heart failure at age 60. Pro scouts, apparently believing Hagins’ condition was hereditary and posed more of a problem, backed off. Hagins went from a probable first-round pick to a 23rd-round selection of the Cleveland Indians.

“Scouts will try to find anything to screw you out of money,” Hagins said. “When they thought my heart problem was hereditary, they figured they’d get a Mercedes for a Pinto’s price.”

Hagins’ condition, known as aortic stenosis--which involves a defective heart valve that can be clogged over a period of time--apparently worsened over the summer. Tests performed by Dr. Joseph Perloff, a renowned cardiologist at UCLA Medical Center, revealed that Hagins’ aorta was 89% blocked.

“He said I was lined up for a heart attack at age 18 if I didn’t get something done,” Hagins said.

On Aug. 5, Hagins underwent a 5 1/2-hour medical procedure, called balloon aortic valvuplasty, at UCLA Medical Center to clear the valve. Hagins said doctors told him his condition improved dramatically after the procedure.

Days before he was set to enroll at Arizona State in August, Hagins said the Indians offered him a substantial bonus--”first-round money,” usually in the $250,000-$400,000 range--to sign a pro contract.

Hagins, turned off by the pro scouts, turned to Arizona State instead. He enrolled in the last week of August.

Then came “the bombshell,” as Sun Devil Coach Jim Brock calls it. About a week into Hagins’ freshman year, the school received a letter from Perloff that “strongly advised (Hagins) to desist from competitive sports. He should not plan a career as a pro athlete by any standard of judgment.”

Dr. Brent Rich, team physician, and another Phoenix cardiologist agreed with Perloff’s assessment and did not issue Hagins a medical release to play.

Hagins and his mother were stunned.

“Steve had been cleared to play last season, he felt great, and the surgery improved his condition,” said Shirley Hagins, who moved to Sedona, Ariz., to be near her son. “We were ecstatic. We felt our prayers were answered. Then we got this letter, and everyone’s hair stood on end.”

Hagins said doctors advised him after the August procedure to ease up in the weight room. Hagins believes if he tones down his conditioning regimen and avoids extremely strenuous activity, he can control his fate.

“I know what it takes to live and I know what it takes to die,” Hagins said. “Doctors don’t know what it takes to play baseball, and coaches don’t know what kind of problem I have. Baseball is a slow-paced game--I think that’s a factor. If I was playing basketball or football, it would have been over in my freshman year of high school.”

Hagins is considering several options, including dropping out of college and declaring himself eligible for next year’s professional draft or transferring to a junior college, where he might find the same hurdles he is facing at Arizona State.

The university has offered to continue his financial aid as a medical hardship as long as Hagins is a student in good standing and maintaining normal progress toward a degree, but Hagins wouldn’t be eligible for the pro draft for three years as long as he remains at Arizona State.

The cardiologist who treated Hagins and cleared him to play during high school, Dr. Richard LeVine of Santa Ana, met with Hagins on Thursday but referred him back to Perloff. Hagins says he might seek opinions from other doctors.

Hagins also has retained two lawyers, Dave Smith of the Smith Sports Agency in Newport Beach and Joe Rocco of Phoenix, to aid in his fight against Arizona State.

Rocco alleges that a breach of contract--in this case, the letter of intent Hagins signed--has occurred between the university and Hagins.

“We believe a contract exists between ASU and Hagins for him to play varsity baseball if he can perform at that level, and he can,” Rocco said. “They never told Steve that playing would be on condition of a medical release from some fancy doctor at UCLA. They said come here, play ball, we’ll give you things. They reaped the benefits and prestige of signing Steve; now they’re telling him he can’t play.”

Ronald Jay Cohen and Daniel G. Dowd, special counsel to the university, responded Monday to Rocco’s earlier letter concerning Hagins’ desire to play baseball. In documents released by the university under the Arizona Public Records Act, they say the university has not breached the letter of intent.

“The letter of intent guarantees only financial aid to obtain an education for one year,” Cohen and Dowd wrote. “There are no promises beyond one year, and the ‘contract’ provides only for an education, not the right to compete. . . . Participation in college athletics is a privilege, not a right.”

Smith said he might also seek relief for Hagins under the 1990 Americans with Disabilities Act, which limits a school’s ability to deny a student with a disability the right to compete in athletics.

The ADA is an extension of the Federal Rehabilitation Act of 1973, which prevents schools from denying an otherwise qualified athlete from playing no matter how high the risk if that athlete shows substantial medical evidence that no serious risk of further injury exists.

Mark Seay, the former Long Beach State football player who lost a kidney in a 1988 drive-by shooting, sued the university under the FRA when the school refused to let him play with one kidney. After months of pre-trial litigation, the school agreed to arbitration and allowed Seay to play in 1990.

But some legal experts believe Hagins would not have cause for action under the ADA.

“The requirements of federal laws are that you have to be otherwise qualified to participate,” said David L. Herbert, a health care malpractice defense specialist from Canton, Ohio. “With no medical clearance, the chances of winning under those acts are slim.”

Rocco said Hagins is willing to “waive everything on the planet,” to return to the team, but university officials are very wary of waivers, even though they have been used before.

Steve Larkin, brother of Cincinnati Reds shortstop Barry Larkin, played part of the 1992 baseball season at Texas under a waiver. Larkin was not allowed to play his junior and senior seasons at Moeller High in Cincinnati because of a heart condition known as hypertrophic cardiomyopathy, a thickening of the heart walls.

Texas team physicians had cleared Larkin to play, but school officials forced him to sit out several games while they explored the university’s risks. Larkin signed a waiver promising to undergo tests after the season at the Naval Hospital in Bethesda, Md., where doctors discovered he had been misdiagnosed. Larkin’s condition could be controlled with a pacemaker, and Texas coaches say Larkin, now a junior, has had no problems since.

In Hagins’ case, though, no medical clearance has been issued, and the school believes no waiver, no matter how tailored to Hagins’ situation, would absolve the university from liability should Hagins suffer a serious injury.

Arizona State attorneys cite the March, 1993, case of Drew Kleinknecht, a scholarship lacrosse player at Gettysburg College who died of cardiac arrest during a school-sanctioned practice, as a precedent for not accepting a waiver.

“Unlike Mr. Hagins’ situation, Kleinknecht had no medical history of heart problems,” the attorneys wrote. “Nevertheless, the Third Circuit Court of Appeals ruled that a college owes a school athlete a special duty of care based upon the unique relationship between the college and the player . . . who has been recruited.

“Given (the Kleinknecht case), it is certainly reasonable to conclude that ASU’s duty to Mr. Hagins, if he was allowed to compete, would be much more onerous than the one imposed on Gettysburg College, in light of ASU’s knowledge of Mr. Hagins’ already diagnosed health condition.”

Legal experts say waivers in medical situations are not generally favored by courts--they didn’t stop the families of Hank Gathers and Earnest Killum from filing lawsuits--and Gray, of Marquette University, can certainly understand why Arizona State won’t accept one from Hagins.

“If you have conflicting medical testimony and you’re the university, why take the chance?” Gray said. “They would open themselves up to liability if they let him play against a doctor’s wishes. By not letting him play, it eliminates the risk. The bottom line is if a kid might die, you don’t let him play.”

But who draws the bottom line? The Sixth Circuit Court of Appeals, in upholding Moeller High’s decision to ban Larkin from playing, ruled that schools have the power to enforce medical standards for athletes, even if it means barring some from competition.

Frank Uryasz, the NCAA director of sports sciences, said that regardless of what an athlete, his parents or outside physicians say, the ultimate decision of whether an athlete plays should rest with the team physician.

“It’s a very difficult area, but unfortunately, when one is 18 or 19, one cannot fully understand the ramifications of participation when medical people are advising against it,” Uryasz said. “You rely on the common sense of parents to take the side of the medical personnel in these safety issues.”

In Hagins’ case, the mother is siding with the athlete.

“I want him to play--that’s why I moved here,” Shirley Hagins said. “I wasn’t worried when he played before, why should I be now?”

Sparked by Gathers’ death, Catherine Jones, professor of law at the Western New England College School of Law in Springfield, Mass., wrote a 101-page article for the 1992 Buffalo Law Review titled, “College Athletes: Illness or Injury and the Decision to Return to Play.”

Said Jones: “If I were running the world, I would say under most instances, a university doesn’t have the right to tell a kid he can’t play, as long as the kid understands and accepts the risk. But I also think a university should be allowed to protect its own integrity by saying a kid can’t play if there’s a risk of death or serious injury.”

Perhaps Brock, the Sun Devil baseball coach, summed up Hagins’ situation best:

“Right now it’s a flat-out, no-win situation for everyone.”