In this article we look at the recent decision of the High Court in the elite athlete med-mal claim of Ebanks-Blake v. Calder [2025] EWHC 3327 (KB) which reaffirmed the significance of the contemporaneous medical records and the weight that will likely be placed on them in medmal cases.
What was the case about?
The claimant, retired professional footballer, Sylvan Ebanks-Blake, had a distinguished football career at the highest level. He came through the renowned Manchester United academy and played for Wolverhampton Wanderers in the Premier League, having signed for Wolves for £1.5 million from Plymouth Argyle in 2008. He also represented England at Under-21 level.
His claim related to an injury he sustained in April 2013 whilst playing for Wolves against Birmingham City in the Championship, following Wolves' relegation from the Premier League. During a collision the claimant sustained a left fibular fracture.
This was not the first injury that the claimant had sustained to his left leg; he had suffered a previous fibula fracture and ligament damage in 2005 whilst playing for the Manchester United Academy.
The defendant, an experienced orthopaedic surgeon specialising in trauma surgery involving elite athletes, saw the claimant following his April 2013 injury and recommended open reduction and internal fixation of the fractured fibula. Importantly, the defendant also recommended an additional arthroscopy (keyhole surgery generally used to examine and treat joint problems) with debridement of scar tissue and loose cartilage in the ankle. This surgery was performed one week after the injury. As outlined further below, it was alleged that the decision to perform an arthroscopy was negligent.
The claimant returned to playing professional football, but his case was that the alleged negligence curtailed his career. The claimant's case was that but for the decision to perform an arthroscopy, he would have been able to continue playing at an elite level (Premier League or Championship) for a further 3 to 5 years. In fact, the claimant dropped down the leagues, playing for Chesterfield in League 1 in 2015 before ultimately deciding to stop playing league football at the end of the 2016/17 season. He was playing in a non-league match in January 2019 when he suffered a further left fibula fracture and decided to retire from the game.
The issues
Despite his 2005 injury, the claimant's ankle joint had been pain free. He had adapted his playing style to accommodate ankle stiffness, and this had allowed him to play at the highest level of the football pyramid.
The claimant argued that he had suffered no acute injury to the ankle ligaments in the 2013 injury to justify an arthroscopy. An arthroscopy would inevitably involve the removal of arthrofibrosis in order to visualise and access the ankle joint, and removal of degenerate cartilage. However, the claimant's case was that this arthrofibrosis and cartilage had in fact been serving a useful function, i.e. cushioning for the ankle joint, and that its removal altered the biomechanics of the joint and caused pain, instability and an acceleration of degenerative changes. The claimant's case was that an arthroscopy should not have been performed on a pain-free and functioning ankle.
The defendant argued, on the other hand, that the 2013 injury involved significant acute injuries to structures within the ankle, leaving the ankle unstable. The defendant's case was that an arthroscopy was the 'gold standard' intervention for an unstable ankle and that it would have been negligent not to have undertaken the procedure. The defendant further argued that the arthroscopy had in fact prolonged the claimant's playing career.
The case largely hinged on the extent to which the claimant's 2013 injury involved an acute injury or whether there had simply been a modest exacerbation of a chronic (long-standing) ankle injury. This is because the defendant accepted in cross-examination that a chronic process does not require an arthroscopy.
The outcome
Liability turned on the difference between the contemporaneous notes and the defendant's evidence at trial, which were markedly different. At trial, the defendant's evidence was that the claimant's injuries in 2013 were so serious and so striking that they stuck in his memory; his evidence was that the injuries were so severe as to be potentially career ending. However, this was not the suggestion from his contemporaneous notes in 2013, which suggested an altogether less significant ankle injury, which was predominantly chronic in nature (arising from the 2005 injury). Specifically, the defendant's contemporaneous pre-operative notes recorded the following:
- "He has not had any significant symptoms in his ankle since the previous fracture other than some stiffness...".
- "Clinically today the ankle itself appears a little swollen but there is no tenderness across the medial aspect of the ankle…and there is no significant tenderness around the lateral ligament complex – in particular there is no tenderness around the AITFL [anterior inferior tibiofibular ligament]."
Whilst the defendant noted some abnormalities around the ligaments, he also expressed the view that these were older injuries.
This "evolution" (as the judge described it) of the defendant's evidence was brought sharply into focus by the fact that sections of his witness statement, including the important issue of his rationale for recommending and performing the arthroscopy, had been taken directly from his own orthopaedic expert's report, so much so that the judge remarked that:
"I am led to the irresistible conclusion that the defendant's witness statement and his account at trial are almost certainly an amalgam of what the defendant thought and Professor Ribbans' [the defendant's orthopaedic expert] expert opinion."
Against this background, the judge was persuaded that the defendant's real rationale for performing the arthroscopy was to investigate potential instability in the ankle joint, and not to treat what in fact was found to be a much less serious ankle injury than that suggested by the defendant in his evidence at trial.
In finding that there had been a breach of duty in undertaking the arthroscopy, the judge found, amongst other things, that "it would be wholly illogical to perform an invasive procedure for the purpose of examining a structure which you believe clinically and radiologically to be normal."
From a causation perspective, the judge also found that the removal of the scar tissue destabilised the claimant's ankle joint by removing the cushioning and by altering the biomechanics of the joint leading to increased movement of the joint, increased instability and acceleration of degenerative change in the joint. But for the arthroscopy, the judge therefore found that the claimant would have returned to his pre-accident pain-free state, which would have allowed him to play football at a high level for a further 3 to 5 years.
Judgment was therefore entered for the claimant on this basis, with quantum to be assessed separately, although it is anticipated that the claimant will recover significant damages primarily for loss of earnings at elite levels.
Discussion
This case serves as a salutary reminder of the significance that is often placed at the trial of all medical malpractice claims on the contemporaneous notes. Defendants can continue to expect their records to be the starting point and, as was the case here, potentially determinative. Any later inconsistencies between those records and witness evidence will need careful and reasonable explanation in any witness statement, which should be prepared without the outside influence of expert opinion.
