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Published 28 September 2016
Elite level sport is an increasingly high stakes game. Sportspeople strive for success and the rewards that can accompany it and are often backed by substantial investments from teams, sporting organisations, and corporate sponsors.
An injury can end a season or a career. Sportspeople place increasing reliance on the abilities of doctors and therapists to manage an injury and to permit a return to competition. But what happens if the injury does not resolve or if complications occur? Increasingly, the answer seems to be to pursue a compensation claim. Commonly, it is alleged that the doctor's involvement has curtailed a playing career, resulting in substantial losses.
Often the focus is on orthopaedic surgeons. A footballer, rugby player, or athlete with a serious or recurring injury is referred to them; they may provide treatment but the injury does not recover. As Claimants in medical malpractice claims are generally protected against having to pay defence costs (under "Qualified One Way Costs Shifting"), what does the sportsperson have to lose from bringing a claim?
Clinicians providing treatment to professional sportspeople will have medical malpractice insurance, and need to ensure that they have adequate cover for what can be a very large claim. They may have a significant excess or deductible. When responding to and defending a claim, as well as considering the specialist allegations they and their legal advisers will need to consider how to challenge the Claimant’s quantification of their loss (usually a speculative assessment of a loss of a chance of earnings), and how to manage the substantial legal costs that can be incurred on both sides. Examples of the scale of claims pursued include Appleton v El Safty  (the Claimant, a midfielder with West Bromwich Albion, recovered c.£2.5m from his treating surgeon) and Collett v Smith and Middlesbrough FC  (while not a medical malpractice claim, a career-ending injury to a young Manchester United player resulted in compensation of just over £4.5m)
Common with other types of medical malpractice claims, there are often claims brought against multiple Defendants. They may be brought against the surgeon or specialist, and also include club physicians and/or physiotherapists. If there is any doubt about whether a medical practitioner is self-employed, or has sufficient insurance to meet a claim, then matters can be complicated further by arguments about whether a club is vicariously liable for the medical practitioner or whether it owes a non-delegable duty of care to its player (on the basis of Woodland v Essex County Council  UKSC 66). Understanding the relative roles played by each participant is crucial in determining issues of culpability and apportionment, so that an effective strategy to responding to the claim can be devised from the outset.
For those clinicians operating in this area, and their Med-mal Insurers, it will be noted that claims are not just brought against doctors who provide treatment days or weeks after the event. Sometimes the claims we see focus on preventative advice, or pitch-side assistance from physiotherapists and doctors who clear a patient to continue playing, despite there being a more significant but undetectable underlying injury. Such injuries may not just threaten and curtail a playing career, but may be life-threatening or result in catastrophic damage.
As a firm, DAC Beachcroft is at the forefront of defending claims against sports specialists, and our team of medical malpractice lawyers advise on the wide range of claims in this area, ensuring that sports specialists are appropriately defended and that their reputations are managed with equal priority.
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Simon Perkins, Mark Ashley