Clinical Negligence in Sport – law, medicine and putting the athlete's health first

For some, a career in sport is a dream role and this is no different for medical practitioners who are either employed by the sports clubs themselves or receive referrals, on a private basis. The risks for practitioners working at elite levels of sport are very significant, with some professional indemnity insurers even refusing to indemnify practitioners who work at the highest levels due to the eye-watering financial consequences if something goes wrong.

Clinical Negligence Sport Law Scotland Concussion Injury Court Compensation

With the very best footballers earning in excess of £100,000 per week at the top levels, and others in lower leagues receiving a more than healthy £20,000 per week, it is easy to see how loss of earning claims could reach astronomical proportions if liability attaches to a medical practitioner for an injury that cuts a sporting career short.

While it was not a medical negligence claim, the case of Collett v Smith provides the perfect example of settlement figures that medical practitioners could be liable for if an award of damages is made against them.

18-year-old Collett was playing for Manchester United in a match against Middlesborough FC. In the course of the game he was tackled by the first defendant. The tackle was high and over the ball and, as a result, Collett sustained a fracture of the tibia and fibula of his right leg. Collett pursued damages for injury, loss and damage caused by the negligence of Smith. Collett chose to pursue Middlesborough FC (rather than Smith himself), arguing that they were liable for their employee’s actions given that he was connected to the club and acting in the course of his employment, as a professional footballer. In particular, Collett claimed for future loss of earnings as a result of not being able to pursue a successful career as a professional footballer and thereafter, as a football manager or coach. Middlesborough FC admitted liability and it was for the Court to determine the final settlement figure.

Held: Award in excess of £4.3 million including:

General Damages: £35,000 Past Loss of Earnings: £456,095 Future Loss of Earnings: £3,854,328

Remember that this is a case where the footballer was not established and his 'worth' effectively had to be estimated. Imagine the scenario for someone treating a Messi or Ronaldo type footballer, with all the potential earnings that attach to such superstar players, and something goes wrong to their permanent injury.

Given that, it is important that all medical practitioners are aware of the rules concerning clinical negligence and the main areas in which a sports practitioner is likely to fall foul. Equally, it is also important for clubs and governing bodies to be aware of the risks in this area of law, as they could also find themselves liable, as discussed later.

What are the tests for clinical negligence?

In Scotland, the test for clinical negligence is taken from an old case from the 1950s, called Hunter v Hanley (1955). The test states that for a Pursuer to prove negligence, he must show (1) that there is a usual and normal practice; (2) that practice was not followed and; (3) the course adopted was one that no other professional, in that field, would have adopted had he been acting with ordinary care.

In England, the test for clinical negligence is slightly different and comes from the case of Bolam v Friern Hospital Management Committee (1957). It states that the claimant must show that the practitioner has not acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular area.

Regardless of whether the negligence lies in Scotland or England, the Pursuer bears a heavy burden of proof in order to win their case. However, even if the claimant can prove negligence, this is still not enough. The claimant must also prove causation.

Causation is often more difficult to prove than the negligence itself. The claimant must prove that but for the act of negligence, he/she would not be in the position that they are in today as the final clinical outcome would not have occurred. In the vast majority of sport cases, that outcome will centre around an inability to continue with their career due to the nature and extent of the injury. Courts will defer to the medical expert's opinion when determining negligence and causation.

The main areas of risk for a medical practitioner will most likely occur in the following scenarios:

  • Initial medical screening process
  • In-play assessments of injuries
  • Diagnosis and treatment of injuries
  • Poor record-keeping
  • Concussion/brain-injury awareness

The Cases

Hamed v Mills & Tottenham Hotspur

This recent case concerned young footballer, Radwan Hamed, who had signed for Tottenham Hotspur at the age of 16. Under FA rules, all new entrants must undergo screening process for cardiac disorders including hypertrophic cardiomyopathy (HCM). The cardiologist who carried out the test informed the club doctor that whilst there was no evidence of HCM, the results were abnormal which was a worry, and a review was recommended. The club doctor, following a telephone call to the cardiologist's secretary, recorded in Hamed's notes that Hamed was not at risk and the cardiologist was "happy" for him to train and play. The cardiologist later wrote to the club to advise that Hamed would require to be screened annually, due to the results, but he did not follow up the review that he had recommended from the outset. Following a query from the club, the cardiologist confirmed that, in his opinion, Hamed could train and play, reaching that conclusion, he said, by balancing the risks and benefits of Hamed continuing his footballing career. A matter of weeks later, Hamed, whilst playing a youth-team match, suffered cardiac arrest resulting in catastrophic brain injury.

The cardiologist accepted liability for his actions in failing to follow-up the clinical review that he had recommended. Hamed also brought a case against the club doctor, who Tottenham Hotspur would be vicariously liable for. The club refused to accept liability and the case proceeded to court.

The Court held that the ECG showed an abnormality and the cardiologist did not suggest that because there was no evidence of HCM that everything was, therefore, okay. On the contrary, he confirmed the abnormality and recommended review. The Court was convinced that a reasonably competent doctor (applying the Bolam test) would have known there was a small chance of some other pathology which could not be excluded. The conclusion that the club doctor arrived at, and noted in the records, was one that no reasonably competent doctor would have arrived at. Given that, the Court held that the club doctor was indeed negligent.

In light of that conclusion, the Court had to apportion blame between the cardiologist (who had earlier admitted negligence) and the club doctor. The Court decided that not only did the club doctor form the wrong conclusions but he had also held back important information from the footballer and his parents, by not disclosing the condition or the cardiologist's recommendations to them. As such 70% of the blame fell to the club doctor and 30% to the cardiologist.

In October 2016, Hamed was awarded damages in the region of £7 million, after a court battle that lasted 10 years. Tottenham Hotspur, although 70% liable, will not have to directly pay out compensation as this is covered by indemnity insurers. The compensation includes monies for pain and suffering as well as loss of earnings and future care. The compensation level was described as fair, just and reasonable.

The screening of heart conditions is vitally important in safeguarding the health of athletes and forms the basis of many sporting health policies across the world, with cardiomyopathy a particular concern. It was not so long ago that Fabrice Muamba's cardiac arrest, whilst on the pitch, made headline news. In that case, Muamba followed the recommendations of health specialists and retired from professional football. Even more recently, Patrick Ekeng, the Cameroon national team and Dinamo Bucharest midfielder, died after collapsing on the pitch during a match. The paramedic in that case has been charged with manslaughter on the basis that no attempt was made to resuscitate Ekeng and if defibrillation had been carried out within 60 seconds, there would have been a 95% chance of survival. Prosecutors in this case have advised that the paramedic failed to carry out any evaluation of the footballer's health. If that is correct, the widow of Ekeng will likely have a claim for clinical negligence which would meet both the tests for negligence and causation.

As recently as September 2016, there have been renewed calls for cardio screening at all levels of sport and not just elite levels, following the death of non-league footballer Daniel Wilkinson after he collapsed during a game. It was later discovered that he had Arrhythmogenic Right Ventricular Cardiomyopathy (ARVC) - this was the same condition that led to the early retirement of Muamba. The issue of cardiac screening has been raised in Parliament and whilst more can be done for athletes in non-elite roles, it is yet to be seen whether any such protocols will be implemented.

Hall v Thomas

The claimant in this case raised a claim against three defenders – the independent doctor, the club physiotherapist and the club he played for.

In the summer of 2005, Hall sustained a twisting injury to his left knee causing an ACL rupture and tear of the posterior horn of the lateral meniscus. He underwent surgical treatment followed by a 24-week rehabilitation programme that was provided by the club physiotherapist. The following summer, Hall underwent an arthroscopy after complaining of pain in his knee. The procedure showed extensive damage to his knee and degenerative changes to the medial and lateral compartments, a condition that was not apparent following the initial twisting injury. An MRI, in August 2007, revealed a complex tear of the posterior horn of the medial meniscus and Hall underwent further surgery for repair. Hall developed a post-operative infection which caused septic arthritis in the knee and gave rise to further damage. There was a two-day delay before that infection was treated and Hall, thereafter, underwent a final unsuccessful operation in October 2007. However, it became clear that the knee could no longer endure the physical demands of a professional career.

Hall pursued two claims: (1) a claim against the club physio, in which the club would be vicariously liable, for failing to provide adequate rehabilitation and (2) a claim against the independent doctor for failing to treat the post-operative infection timeously.

The independent doctor admitted negligence and left causation to be determined by the Court. In determining whether the doctor's negligence caused any harm, the court considered the arthroscopy which had already revealed significant permanent damage and therefore concluded that the doctor could not be liable for the entire injury. The judge considered that 50% of the damage could be attributed to the delay in treating the septic arthritis. The Court also looked at whether the meniscus repair was likely to be successful but for the delay in treating the septic arthritis. This was a very important question as the claimant's career hinged on the success of the repair. Expert evidence concluded that it would be impossible to state, on the balance of probabilities, that the repair would definitely have been successful but for the delay and in any event, pre-existing degenerative changes would have significantly impacted the claimant's career.

The club physiotherapist denied any negligence and the Court found in his favour stating that the claimant had failed to satisfy that the "care provided to him in the delivery of rehabilitation fell below the standard of the reasonably competent physician". This is an example of the heavy burden of proof that the Pursuer has to satisfy in order to bring a successful claim, in negligence. The claimant's argument centred around a lack of adequate records. No record was kept in relation to the claimant's developing condition through the rehabilitation process and, therefore, there were no 'red flags' noted that could have led the physiotherapist to refer back to the surgeon at an earlier stage. However, the Court stated that leading an argument in relation to inadequate records, in itself, does not give rise to negligence. You also have to be able to prove that the warning signs were there. It is noted that the claimant was not a great historian himself and therefore could not be held to be credible.

However, this case is very important in highlighting, to medical practitioners, the importance of keeping adequate and clear records. The judge advised that the records, in his opinion, were inadequate and had the claimant been considered as credible the case may have been decided against the medical practitioner. There have also been previous cases that have established that where the records make it difficult or impossible to extract relevant evidence, the practitioner must run the risk of adverse factual findings. (Keefe v The Isle of Man Steam Packet Company Limited (2010) EWCA Civ 683)

Kieron Brady v Sunderland FC

Kieron Brady, was a talented young Scottish footballer, contracted to Sunderland FC. He had been suffering with right leg pain and was referred by the club physiotherapist to a specialist. Brady was diagnosed with vascular problems and underwent numerous unsuccessful surgical procedures. As a result of the symptoms his career was cut short. Brady brought a claim against the club on the basis that he should have been diagnosed much earlier and had this happened he could have had corrective surgery. The club accepted that there was a duty of care to take reasonable care for Brady’s health and safety but he failed to show that his complaints to the physiotherapist were of such a nature to warrant earlier intervention. The case failed.

This case highlights, again, the difficult obstacles for the claimant to overcome in order to bring a successful claim for clinical negligence.

West Bromwich Albion v El-Safty

This action was raised by the football club, West Bromwich Albion, against a Consultant Orthopaedic Surgeon, Mr El-Safty. There were two possible claims, one arising in contract and another arising in tort. West Bromwich midfielder, Michael Appleton, suffered a knee injury and the club physiotherapist referred Appleton to Mr El-Safty for investigations and review. Mr El-Safty recommended Appleton undergo reconstructive surgery and obtained the consent of both Appleton and the club physiotherapist. The advice to undergo surgery was considered as negligent and Appleton should have been treated conservatively instead. The procedure effectively ended Appleton's career and it was established that had he been treated conservatively, it was likely that he would have made a full recovery within four months.

The club attempted to claim damages from the surgeon for the loss of Appleton, who was considered a club asset. The club had paid a large sum for Appleton and his subsequent transfer value formed part of the club's profit books. As a result of this incident, the club claimed they had therefore suffered a loss. The club argued that the surgeon had entered into a contract with them when he accepted the referral from the club physiotherapist. He owed them a duty of care and that duty had been breached. In making an argument for an implied contract, the club relied on the fact that there was a history of dealing with Mr El-Safty and the surgeon always looked to the club for payment of his invoices.

The Court held that it would be unreasonable to impose, on Mr El-Safty, a duty of care to the club and held that there was no contract between the club and surgeon. In coming to this conclusion, the Court noted that not only did Mr El-Safty not think he was in contract with the club when accepting referrals, the club physiotherapist had also advised that he did not consider he was entering a contract on behalf of the club when making the referral. He was simply referring the case as a health professional. The fact that the surgeon looked to the club for payment was not enough to satisfy the existence of a contract. The Court did consider that a doctor could owe a duty of care to someone who was not a patient but in this case, it would not be fair, just or equitable to impose such a duty. It was reasonably foreseeable that the club may suffer a loss if it loses one of its players to injury as a result of negligence. It is also reasonable to assume that Mr El-Safty would be aware that Appleton would have had some sort of value but it is not reasonable to assume that he would have known the extent of that value and how long his contract had to run. Notwithstanding that, the surgeon had no close ties with the club and the players he treated were only a small proportion of his total patients. As such there was insufficient proximity to give rise to a duty of care.

It should be noted that whilst the club's claim failed, Appleton's own claim, as an individual, was successful against Mr El-Safty and he received significant damages reported to be in the region of £1.5m. Damages were paid through Mr El-Safty’s insurance.

Brian Welsh v Hibernian FC

Former Dundee United and Hibernian defender, Brian Welsh, received an undisclosed but significant sum after his career was brought to an end by a steroid injection administered by a club doctor. Welsh raised an action against Hibernian, as the doctor’s employer. He sustained an Achilles injury during a match in 1998 and attended the club doctor who was alleged to have administered a steroid injection directly into the Achilles tendon. The damage was irreparable and put an end to Welsh’s professional career. It was further alleged that had Welsh undergone surgery, instead of having the injection, he would have made a full recovery and continued with a long and successful football career. The case settled out-of-court.

Commercial pressures v head injuries

In relation to concussions on the field, more often than not players are reluctant to leave the field following injury. However, their club managers are also slow to remove them from the field of play or even stop the match to attend to them.

Take the recent example of then Chelsea manager Jose Mourinho’s publicised fall-out with club physiotherapist, Eva Carneiro. It is of course recognised that there is commercial pressure to keep a player on the field but, in some cases, it is more prudent to prevent the risk of further damage.

To enable clubs to recognise and manage concussion, FIFA and the World Rugby Union have introduced their own concussion protocols. In football, the protocols provide that all matches must have a tunnel doctor to assist team doctors in recognising and diagnosing the signs of concussion. That doctor will be independent from the club and thus not subject to the commercial pressures associated therein. If a head injury occurs, the medical team will assess the player and he will be removed from the field of play if there has been a confirmed or suspected loss of consciousness. UEFA has also introduced similar provisions.

In rugby, the Head Injury Assessment protocol was introduced, which includes a ten-minute, in-play assessment procedure as well as a compulsory online module for players, coaches and officials and mandatory concussion management training for medical staff. The management of confirmed and suspected concussion is also subject to an independent review by no less than two experienced independent medical practitioners. It is alleged that the number of concussions in the game has doubled in the last five years and that, on average, one player at every Six Nations match suffered a brain injury. In England, the number of reported concussions rose by 59% in 2013/14 and in Scotland the number of cases has nearly doubled in the last two years. It is claimed that this is as a result of the rugby unions calling for head related injuries to be flagged up. Both the English and Scottish Rugby Unions are actively trying to make the game safer by increasing awareness of concussion.

The issue of head injuries in prominent UK sports, such as football and rugby, gained momentum following mass coverage in the USA regarding concussion in the NFL and former players being diagnosed with debilitating chronic traumatic encephalopathy (CTE).

A study in 2002, by Dr Bennet Omalu, found that brain disease in former players was linked to their time spent as professional players. An autopsy was carried out on former Pittsburgh Steelers centre, Mike Webster, who died aged 50 and suffered from dementia and depression. Omalu was able to identify, through his studies, severe degeneration in Webster’s brain and, following further autopsies on other former players, he discovered similar symptoms. He published his findings on the sport and its long term effects.

In American football, it was argued that the protective equipment such as helmets and shoulder pads gave a false sense of security to players given that they were wearing so much protective equipment. Players were found to be more likely to make head-to-head tackles, colliding with each other’s helmets as they considered they were safe to do so. However, although a helmet may protect against a broken skull, it does not prevent fast and sharp movements to the head which are more likely to cause brain trauma. Former players took the NFL to court and claimed that the NFL had effectively hidden the risks of concussion from them, had failed to safeguard them from the risks of concussion, had failed to treat appropriately any symptoms of concussion and this had led them to suffer debilitating conditions in later life. The courts found in favour of the players and the NFL will now pay out $765m to former players following concussion related claims.

The NFL was not quick to accept Dr Omalu’s findings but following the concussion legal claims, the risks are now more widely recognised and the NFL have now implemented a set of guidelines called The NFL Head, Neck and Spine Committees’ Protocols Regarding Diagnosis and Management of Concussion. The guidelines address the management of head injuries in the game and also introduced the presence of an unaffiliated Neurotrauma Consultant during matches. However, the final diagnosis of head injuries and how to address that during the game still rests with the non-independent club doctors.

The UK is about to see its very first concussion based legal dispute with the case of Cillian Willis v Sale Sharks. Willis sustained a head injury, in-play, during a match with Saracens and was twice treated but was not removed from the game until the 49th minute. The match report stated that he was on the wrong end of a high tackle, he was attended to by the medical team and was able to get to his feet and resume play. However, it was clear that he was struggling and he was eventually removed in the 49th minute.

This case is the first of its kind in the UK and certainly one to watch. It will be interesting to see how the Courts determine liability and causation, given the recent developments in the United States, if successful. It may open the floodgates for many more concussion cases.

Whilst rugby is attracting a lot of attention in relation to concussion protocols, it is boxing that still leads the arena in terms of safeguarding head injuries and educating participants in recognising and acting on symptoms. Earlier this week came the tragic news about a Scottish boxer, Mike Towell, who died following a televised fight in Glasgow. Towell was carried from the ring after a fifth-round loss to opponent Dale Evans. He was taken to hospital and diagnosed with severe bleeding and swelling to his brain. Reports later suggested that Towell had been suffering from headaches in the week leading up to the match and had even cut short a training session, due to symptoms. These same reports advised that the boxing club knew nothing of the headaches leading up to the fight.

Yet again this raises questions about the education and guidance provided to participants, who are not at the elite level, to recognise the symptoms and obtain treatment where possible. Further work needs to be done to ensure that symptoms are recognised, reported and not hidden from management and medical teams, in order to be able to continue with a fight. The best interest of the participants must be of paramount importance and the health interests must outweigh any commercial pressures to ensure a fight goes ahead.

The national governing body for boxing, The British Boxing Board of Control, learned this in the case of Watson v British Boxing Board of Control. Michael Watson sustained a sub-dural haemorrhage resulting in irreversible brain damage during his World Boxing Organisation title fight with Chris Eubank. The injury left him with a left sided partial paralysis, amongst other things. Evidence was led that showed that the injuries had been significantly worsened because immediate resuscitation equipment was not available at ringside. The British Boxing Board of Control was the regulatory body with sole responsibility for the rules governing boxing and the way in which the match was organised. The Court held that the Board was liable for not providing a system of appropriate medical assistance at ringside. The Court formed the view that boxers were unlikely to have a well informed concern about their safety; that the Board had special knowledge and knew that boxers relied on their advice and that since 1980 there was standard response to sub-dural bleeding agreed but that it was not introduced by the Board.

Litigation, in boxing, has also been prominent in the United States. In the case of Classen v Izquierdo, a ringside doctor refused to stop a boxing match in which a participant received several blows to the head. The boxer ultimately died from the multiple head injuries he sustained. The Court held that the failure of the doctor to keep the athlete from competing was a case of negligence. In making a decision to keep an athlete from competing, the medical practitioner must apply subjective tests. It may be one of the toughest decisions that a medical sports practitioner has to make, given the period of time he is afforded to come to a conclusion.

It is clear from cases that when making decisions, practitioners must consider the intensity and physical nature of the sport as well as the probability and severity of harm from continuing. Any determination must meet the usual and normal practice as well as good and accepted standards of medical care when reaching a decision is made on whether to remove an athlete from the field of play.

Should similar processes be adopted for non-elite levels?

Whilst the majority of case law focuses on clinical negligence at the elite level of sport, the risks are as significant in the lower levels of sport, albeit they may not carry the same potential compensation figures. The USA has seen increasing litigation for clinical negligence in high school and college settings and with further exposure on clinical negligence at this level, it may not be long before we see a focus here in the UK. Litigation, in the United States, has shown that athletic coaches as well as medical practitioners can find themselves vulnerable when making (or not making, as the case may be) medical decisions.

In the case of Pinson v State, Michael Ray Pinson suffered a blow to the head during a college football practice. He walked to the side-line and advised that he had been "kicked in the head", and collapsed unconscious. Pinson was examined, while unconscious, and the athletic trainer noted a palsy on the left side of Pinson's face, loss of control of the left side of his body, unequal pupils, and absence of response to pain, sound or movement. Pinson was unconscious for 10 minutes. A trainee athletic trainer accompanied Pinson to the hospital but failed to forward information that should have been given to the attending doctor regarding Pinson's initial condition. No information was passed on regarding the symptoms following Pinson's collapse. He was admitted to hospital for observation. The doctor advised the athletic trainer that if Pinson had any further symptoms, he should re-attend the hospital.

When Pinson was discharged from the hospital he complained of a headache. The next day, he complained again of a headache. Pinson continued to complain for several days. One week later, the athletic trainer advised the team doctor that Pinson was asymptomatic for concussion. Relying on this report, the team doctor cleared Pinson to play. Over the next three weeks, Pinson played in at least two games, and complained of headaches, dizziness, nausea and blurred vision throughout this period. The athletic trainer failed to report those symptoms to either the team doctor or the hospital doctor.

One month following the initial collapse, Pinson collapsed again during practice. He was taken to the hospital and underwent brain surgery for a chronic subdural haematoma. Pinson remained in a coma for several weeks and sustained severe and permanent neurological damage. Pinson had no use of his left arm and little use of his left leg. He required a shunt to drain excess fluid from his brain and suffered severe cognitive problems, as well as frequent seizures. The Court held that the athletic trainer had a duty to report Pinson's initial symptoms and subsequent headaches to the doctor and but for that failure, Pinson would likely have had little or no permanent neurologic deficit.

In Kleinknecht v Gettysburg College, a lacrosse player sustained a fatal cardiac arrest during an off-season practice. There was no trained medical staff present to provide assistance at the time of the incident. Kleinknecht claimed that the college should have provided trained medical staff and the Court held that the college lacked an appropriate medical response plan and failed to provide reasonable emergency care to injured athletes. The court held that it was not a sponsored intercollegiate event but that the possibility of severe injury was very much foreseeable and a duty of care existed to use reasonable care to protect athletes from harm.

In Mogabgab v Orleans Parish School Board, an athlete collapsed and died following prolonged heat stress. 80 minutes had passed after the athlete collapsed before medical practitioners were summoned. Similar to the previous case, this decision highlights the importance of having an effective emergency action plan in place that is understood and available to all those responsible for athlete care.

Conclusion

Sporting injuries, at the top of the game, are often headline news with the acts of those involved in treatment and care being subject to scrutiny. Medical practitioners must, at all times, withstand commercial pressures and exercise caution to avoid being caught in the middle between the club's interests and the best interests of the athlete.

Where possible, safeguards must be put in place at all levels of sport to avoid significant consequences for medical practitioners if something goes wrong.

Despite the heavy burden of proof faced by claimants, increasing litigation in the United States has shown that the courts will not tolerate a blatant disregard for athlete safety and it is becoming more and more apparent that the best approach may be the introduction of an independent body to make such crucial decisions on the safety of athletes.

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