The following discussion has been submitted to the Government's review of the Duty of Care in sport, led by Baroness Tanni Grey-Thompson.
Laurence Vick is head of the clinical negligence team at Michelmores. He was joint lead solicitor to the 300 parents affected by the Bristol Child Heart Scandal, culminating in the Kennedy Inquiry of 2001. He continues to represent families affected by failings in cardiac surgery at units across the country and advocates greater monitoring of young sportspeople for cardiac conditions, at both professional and amateur level, to avoid repeats of recent tragedies like Rad Hamed, the 'extremely gifted and dedicated' young footballer who suffered a cardiac arrest and devastating brain damage when he collapsed playing in his first match for the Tottenham Hotspur youth team.
The duty of care owed to players by sports clubs and club doctor has met with increasing scrutiny in recent months, particularly in relation to on-field concussion injuries and the management of players who have suffered head injuries. This drive to improve safety in concussion management must, in the light of recent cardiac tragedies affecting young players at all levels of sport, be extended to promote greater vigilance for undiagnosed cardiac conditions.
The duty of club doctors
The recent saga involving Eva Carneiro, Chelsea FC's then club doctor, highlighted the complex forces exerted on clinicians in the sports environment. Sportspeople can be multi-million pound assets for their clubs, in what has become, in some disciplines, a vast and lucrative business environment. As I have previously written, the consequences of an in-game substitution, or the temporary loss of a player undergoing treatment, may be seen as catastrophic by the manager and fans but the interests of the player must prevail – even where that player is reluctant to come off the field and, in effect, needs protection from himself. Stripping away the glamour of a job carried out on the most public of stages, the club doctor's role and responsibilities can at times seem overwhelming.
My own legal specialism lies in claims relating to treatment of congenital heart defects in children and I therefore have a particular interest in the way in which these conditions are monitored and managed sportspeople. It was with great relief that we learned of Fabrice Muamba's recovery following his on-field cardiac arrest in March 2012, and this is testimony to the importance of provision for rapid responses to serious injuries during matches.
The recent High Court judgment in favour of Rad Hamed, the Spurs youth player who suffered catastrophic brain damage after the failure of club doctors to diagnose his cardiac defect is significant in that it emphasises the fundamental duty of a doctor, who has a primary responsibility to his patient irrespective of the source and context of his employer's instructions. In this case, the disastrous outcome resulted from 'extremely poor communication' and what must have been the fragmentation and confusion of responsibilities between the various members of the Club's in-house medical team and the external FA cardiologist, Dr Mills.
This relationship between club, doctor and player, an arrangement that is so often opaque despite being often widely publicised, gives rise to sometimes subtle conflicts with complex and difficult legal questions at play. The Hamed case went some way to shedding light on the phenomenon. My full comment on the judgement can be found at the foot of this article.
I have said that the case of Eva Carneiro is a reminder of the unusual triangular relationship between doctor, player and club, and raises the question of where responsibility ultimately lies. There is a clear risk of conflicts of interest arising – we know that some rugby club doctors will take out their radio earpieces when treating a player on the field, to avoid any interference with their clinical judgement from the dugout. Ultimately, a doctor has a primary responsibility to his or her patient, irrespective of the source and context of his employer's instructions.
Cardiac testing for young sportspeople
I believe that the case for a duty of care that comprises continuous monitoring of young athletes for cardiac conditions has been comprehensively made out. The logistics of implementing a system that reflects this duty will, of course, vary between the different echelons of any sport; a Sunday league football team, perhaps organised by volunteers, will not command the resources available to a premiership rugby club.
However, there are practical ways in which monitoring can be upheld at al levels of sport, allowing, as the Government's review seeks to show, that as many people as possible can engage in sport and that they can do so in a safe way, with their careers and lives after their careers supported.
Rad Hamed's case will, hopefully, remain a rare example of such a tragic failure of cardiac monitoring in the top levels sport, but it drives home the importance of monitoring at all levels. Arguably, elite clubs have a responsibility to grassroots organisations to promote safety and, clearly, funds are available at the top of the professional game to bring this about. The benefits of a more integrated system of information-sharing are many, not least in building relationships that encourage talented young sportspeople to understand the realities of the careers they intend to pursue. I would suggest that the lessons of recent, high-profile sports injuries, in the context of cardiac monitoring, can be applied appropriately to young people at all levels of sport.
At an elite level
As the Rad Hamed case shows, resourcing and access to high-quality medical care is not sufficient in itself. There must be greater communication between specialists – particularly in a field as specialised as cardiology, where clinical experts will invariably be external advisers from specialist cardiac centres.
The High Court's decision to apportion 70% liability for Hamed's injury to his club, and 30% to the cardiologist Dr Mills, is indicative of the need for an elite club to respond pro-actively to external advice, putting systems in place to maintain regular checks even where it is aware that the evidence of a defect is inconclusive (as in Hamed's case, where the advice from Dr Mills was that a congenital defect 'could not be ruled out').
Notwithstanding the negligence of the club's own physician, systems and safeguards for regular monitoring, including meticulous maintenance of medical records within the club itself, will lessen the chances of harm of this kind occurring in future.
It must also be made clear to clubs that they cannot seek to avoid liability by virtue of receiving external advice. Such are the pressures placed on elite sportspeople, physically and psychologically, that a club must be accountable for the wellbeing of its players, whether contractually or through the operation of a medical duty of care.
At a grassroots level
While small sports clubs or associations may lack the resources to carry out monitoring 'in-house', information must be made available to young players and their families about:
- The risks of congenital cardiac conditions for sportspeople;
- How to access cardiac care at specialist centres; and
- The importance of regular assessments, particularly where there has been diagnosis of a potential cardiac issue.
While this may place an additional burden on these institutions which may, after all, be voluntary organisations with no limited resources and expertise, it is important that a culture of cardiac awareness becomes ingrained in grassroots sport.
The investment in greater safety in the upper levels of the game produces considerable literature and effective guidelines; England Rugby's 'Headcase' concussion guidelines are a recent example. Relationships should be formed between elite clubs, governing bodies and grassroots organisations, seeking to disseminate this information and advise grassroots organisations on practical ways in which it can be implemented.
Consideration must also be given to the extent of a grassroots-level club's duty – clearly, the limits of its resourcing should be reflected in the standards of care imposed upon it. The threat of crushing liabilities falling on the shoulders of clubs and their insurers, if they are able to arrange cover, must not be allowed to discourage participation in sport at the grassroots level and a duty of care that extends, perhaps, to appropriate distribution of and adherence to recognised guidelines should be considered.
There is a strong case for introducing an obligation, for organistions at grassroots and all levels, to arrange insurance. This would require the cooperation of the insurance industry to provide affordable cover.
APPENDIX – Rad Hamed – an avoidable tragedy
This article was originally produced for the Personal Injury Brief Update Law Journal and, as of July 2015, was published in the Coventry Law Journal and the authoritative legal archive Westlaw.
The recent High Court judgment in favour of Rad Hamed, the 'extremely gifted and dedicated' young footballer who suffered a cardiac arrest and devastating brain damage when he collapsed playing in his first match for the Tottenham Hotspur youth team, raises a number of issues that have been gestating in the sports world for some time.
Rad suffered his injury aged 17 in Belgium, days after signing professional terms with the club in August 2006. The case is a variation on those we have seen over the years, arising from the conflicts that have become inevitable with increasing commercialisation of the game in the triangular relationship between club, doctor and player.
The decision is significant in that it emphasises the fundamental duty of a doctor, who has a primary responsibility to his patient irrespective of the source and context of his employer's instructions. In this case, the disastrous outcome resulted from 'extremely poor communication' between the various members of the Club's in-house medical team and the external cardiologist, Dr Mills.
This relationship between club, doctor and player, an arrangement that is so often opaque despite being often widely publicised, gives rise to sometimes subtle conflicts with complex and difficult legal questions at play. The Hamed case went some way to shedding light on the phenomenon.
The Claimant, through his father as Litigation Friend, submitted that the cardiac arrest, and consequent career-ending brain damage and disability, resulted from the negligence of the Cardiologist Dr Peter Mills, who had screened the Claimant at his Club medical assessment; the Claimant also made allegations of negligence against the Club itself, by virtue of the actions of the first and second Third Parties, Dr Cowie and Dr Curtin, sports physicians employed by the Club. Dr Cowie joined the medical team in 2004, overlapping with her predecessor for some of the relevant period. In the Third Party proceedings brought against them by the Club, Dr Cowie and Dr Curtin agreed, by Consent Order, to indemnify the Club for any damages the Club might be ordered to pay the Claimant.
The liability trial began with virtually all issues in dispute. According to press reports of the early stages of the Trial, Dr Mills maintained that his role was limited to screening, and not provision of medical advice to the Claimant; his duty was to the Club and he denied owing a duty of care to the player.
By the end of the Trial, however, Dr Mills had accepted liability, and the claims against the Club were restricted to those alleging negligence by their two employed doctors. With Dr Cowie and Dr Curtin indemnifying the Club for any damages awarded against them, the Club accepted the Claimant's claim on causation, subject only to the Claimant proving breach of duty against them, and the Court deciding the appropriate apportionment of liability between the Club and Dr Mills. Press reports refer to the Claimant's lawyers describing the attempts of the Defendants to blame each other for the tragedy as 'an unattractive spectacle.'
Convention and Practice in Cardiac Screening
Under the FA cardiological screening programme, in place since April 2000, all new entrants to a football academy have to undergo routine cardiac screening by a Regional Consultant Cardiologist, familiar with the FA Medical Screening Programme, so that the risk of various cardiac problems can be identified. The most common of these cardiac defects in young players is hypertrophic cardiomyopathy (HCM). HCM has been well-documented for 30 years and is a silent, potentially fatal, condition. Many young athletes are prone to cardiac fibrillation (irregular contractions of the heart muscles) that, unless treated very promptly, may be fatal, inducing sudden cardiac death (SCD).
Where HCM is not fatal, there is a serious risk of neurological damage when the brain is starved of oxygen because, during fibrillation, the heart does not pump oxygenated blood round the circulatory system. The most common cause of these fibrillations is HCM, but there are other, rarer cardiac diseases which can also produce fibrillation and the risk of SCD. HCM and most other heart diseases have a genetic cause. HCM and other heart diseases in young athletes will usually produce thickening of the left ventricle during the mid-teens to mid-20s.
Detecting Cardiac Conditions
Markers for heart disease in young athletes include abnormalities in the electrical activity of the heart recorded by electrocardiogram (ECG). Each pulse causes contraction of, first, the
atrial muscles (which draw blood into the heart), and then the ventricular muscles, which pump the blood out of the heart. The pulse then dissipates, repolarising the heart for the next beat. Each of these phases is recorded on an ECG, the last of which (repolarisation) in the T-wave part of the ECG trace. In a normal, healthy heart, the T-waves project above the axis. A marker of an abnormal heart is an ECG in which the T-waves dip below the axis: a pattern of inverted T-waves.
The second marker for heart disease seen in young athletes is thickening of part of the myocardium (the heart muscle), notably the left ventricle (left ventricular hypertrophy, or LVH). This morphological abnormality is detected using an ultrasound echocardiogram (ECHO) or a cardiac MRI, showing the structure of the heart.
To complicate the diagnosis of these conditions, intense training by young athletes works the myocardium and may result in an enlarged heart; in particular, thickening of the left ventricle. 'Athlete's heart' is a healthy physiological condition, but one that may produce inverted T-waves, an abnormality similar to that produced by a diseased heart on an ECG.
The differential diagnosis between a potentially lethal pathology such as HCM, and the physiological consequences of intense training, is crucial. Confronted with an abnormal ECG, the cardiologist needs to rule out a benign condition by means of an ECHO or cardiac MRI.
Cardiac Conditions – on the Pitch and in the Examination Room
Genetic heart disease, leading to sudden cardiac arrest and death in young athletes, has been a distressingly recurrent phenomenon in recent years. Fatalities have included David Longhurst, who died playing for York City in 1990; Daniel Yorath (Leeds United, 1992); John Marshall (Everton, 1995) and Ian Bell (Hartlepool United, 2001). The Manchester City player Marc-Vivien Foe suffered a cardiac arrest and died playing for Cameroon against Columbia in 2003 and, more recently, Fabrice Muamba suffered a cardiac arrest in March 2012, playing for Bolton Wanderers against Tottenham Hotspur in an FA Cup tie. Muamba fortunately recovered, despite his heart stopping for a significant period. He decided to abandon his career on medical advice.
Under the 2000 Protocol, a club is required to send a standard screening letter to the player, or his parents if the player is under 16, along with a family history medical questionnaire that has to be completed and sent on to the cardiologist.
A regional FA cardiologist must be involved to oversee the process. In this case, the Claimant's screening comprised an ECG and ECHO performed by a technician. The results were sent to Dr Mills, as FA Regional Cardiologist; he completed a standard form, which included 'recommendations for further investigation'. This form was sent to the FA Medical Centre and copied to the Club doctor. It was accepted that the Club, and not the cardiologist, was responsible for the follow-up; they did, however, have the opportunity to invite the cardiologist to carry out further investigations and/or comment on the ECG and ECHO. An FA panel of cardiologists is available to support Club medical staff, usually on the recommendation of the cardiologist involved with the screening procedure.
Analysis of Rad Hamed's Results
The Claimant's ECG and ECHO, performed on 21 July 2005, showed that he was asymptomatic. However, the ECG trace did show inverted T-waves. The expert cardiologists in the case agreed that the ECG of 21 July 2005 was 'unequivocally abnormal', and 'well beyond any manifestation of 'athlete's heart' expected in a 16-year-old', such that 'a diagnosis of athlete's heart was unlikely'. The ECG, it was said, was 'indicative of the
Claimant suffering from an underlying heart muscle disease'. Regarding the ECHO, it was agreed that the image quality was 'inadequate for accurate measurement or diagnosis' and that the 'findings of the ECHO do not explain the abnormalities on the ECG'. This was, therefore, an abnormal ECG, with no unequivocal, benign explanation for the abnormality.
The Club did not complete the questionnaire as it should have done, so that this was not available to Dr Mills. Dr Mills recommended a scan and a clinical review. The scan did not disclose HCM, but it was common ground that a cardiac pathology could not be excluded by imaging alone. After reviewing the scans, Dr Mills confirmed to the Club that there were no features of HCM but indicated he was still worried about the ECG results, describing them as 'abnormal', with a 'very small risk of some underlying heart disease'.
From this point, the communication between Dr Mills and the Club doctors becomes abstruse. On 24 August, following a telephone conversation between the Club's physiotherapist and Dr Mills' secretary, the Club doctor recorded that the Claimant was not at risk and that Dr Mills was 'happy' for him to continue to train and play. On 2 September, Dr Mills wrote to the Club indicating that, because of the abnormal ECG, Rad should be screened annually. On 9 September, Dr Mills stated that it would be reasonable for the Claimant to continue training and playing. In evidence, he stated that he had reached that decision by balancing the risks and benefits of the footballer continuing his career. The Claimant then signed professional terms with the Club and, three days later, suffered his cardiac arrest during his first match. Bystanders tried to resuscitate the player but it took 16 minutes for an ambulance to arrive with a defibrillator. The player was taken to Intensive Care.
By the end of the trial, Dr Mills accepted that he was in breach of his duty of care to the Claimant by failing to make specific reference, in his letters of 2 September and 9 September, to the clinical review which he had recommended in July and which had never been carried out. It was accepted that had the Claimant and his parents been properly informed of the risk he would have stopped training and abandoned his football career.
The Court held that:
- The ECG had unequivocally shown an abnormality suggestive of a risk of HCM. Dr Mills did not suggest that, if the condition had not been HCM, it must necessarily have been benign – a reasonably competent sports physician, such as the Club's doctor, would have known that there was a small chance of some other pathology that could not be excluded by the scan (ECG).
- The Club doctor was therefore negligent, whether as the player's employer or under the Bolam test (the standard of any contemporaneous responsible body of medical opinion). While the communication on 24 August and the cardiologist's letters of 2 September and 9 September could have been made clearer, the Club doctor's conclusion, as recorded in the Claimant's notes, was not one that a reasonably competent sports physician could have arrived at.
- Had the Club doctor appreciated, as she ought to have done, the risk borne by the player, she would have ensured that he and his parents were made aware of it by arranging a clinical review with the cardiologist.
- The Claimant's medical records were in a very poor state, and were not fit for their purpose. The Club had introduced a system of computerised records; had these records been adequate, it would have been apparent that there had been no clinical review, and that it was highly likely that one would have been arranged. It was unlikely that anyone reviewing
the records would have made the same error as that committed by the Club doctor – they would have seen that the player's health risk had not been communicated.
- Apportionments of liability between the Defendants had to be just and equitable, taking into account the extent of blameworthiness and causative potency (Downs v Chappell 1997). On this basis, the Club had to bear the major proportion of the liability, having particular regard to the serious error of the doctor in concluding that the Claimant bore no risk of an adverse cardiac event, and the failure to make the Claimant and his parents aware of that risk. Liability was apportioned 70% to the Club and 30% to the cardiologist Dr Mills.
The Club had argued that it was reasonable for them to be able to rely on the advice of Dr Mills, as the cardiologist had not repeated his suggestion that the Club should carry out their own clinical review. The Club also argued that, even if the player had been reviewed before the game, it was unlikely that the disaster would have been averted. They pointed to the fact that the player had demonstrated no prior symptoms of heart problems, nor any history of cardiac disease in his family. The Club's Counsel argued that, whilst a dangerous heart condition could not have been completely ruled out, the risk would have been assessed as 'low', and 'likely to be less than 1%'.
Where the Buck Stops
Dr Mills had argued that his was merely a screening role; this argument, that he had no duty to give the player any other advice, cannot be described as anything other than disingenuous. If the cardiologist had identified 'any degree of cardiac risk' he should have reported that to the player and his family, as well as to the Club. The Club's doctor, as head of its medical team, was negligent in failing to interpret and appreciate the risk posed to the Claimant from his underlying cardiac condition; she failed to adequately communicate this to the Claimant and his parents, which was wholly wrong.
The Club's Counsel also questioned whether the player would have in fact abandoned his career, even if he and his family had been given the full facts, as 'to do so would have been to abandon his dream and also a potentially lucrative career'. However, given what was contended to be the low level of risk, for a player proper managed and monitored, it was argued that it was 'highly unlikely' that he would have been advised to give up his footballing career.
With the benefit of hindsight, the failings identified in the judgement seem so obvious that some aspects of the positions adopted by the Defendants, accepting the accuracy of the press reports, border on the distasteful.
The decision underlines the crucial importance to all sports physicians of proper communication with young athletes under their care, particularly when dealing with potentially life-threatening conditions. In this case, there was an absolutely catastrophic breakdown in communication.
This was not purely a clinical negligence claim. The Claimant also claimed that the Club owed him a duty of care as his employer, in addition to the duty stemming from the doctor-patient relationship. In an unusual and complex situation, as here where there was no direct doctor-patient relationship, it can be easy to overlook the additional duties to which the particular relationships of the parties might give rise. An employer has a duty to ensure that its employees are fit to undertake the tasks they are contractually employed to perform. The issue of physical fitness will apply in many of employment situations, and will not be restricted to professional sporting activities.
The figure to be awarded to the Claimant will be assessed at a quantum hearing at a future date but, in the meantime, damages have been estimated at between five and seven million pounds. The Club will not have to contribute to the settlement, because it was agreed during the trial that Dr Cowie and Dr Curtin's insurers would cover the Club's responsibility.
Dr Mills was aware of what he regarded as a very small risk but, if asked whether the club was justified in allowing the player to continue to train and play, balancing the risks and benefits, he said that it would be reasonable to allow him to continue. This 'balancing exercise' should, of course, have taken account of not just that the likelihood of the injury occurring was small, but also that the potential outcome, should the injury occur, would be catastrophic.
With these markers of potentially serious cardiac issues, where there is a real risk of death or brain damage, there can be no place for paternalism, however well-intentioned, from club or doctor – the player and his family must be made aware of the risks, so that he can make an informed decision, even if that means abandoning his dreams.
Sports Injury and the Future
Stripping away the glamour of professional football and the fabulous salaries of our top players, injuries sustained by high-level footballers are big news, and every medical detail comes under public scrutiny. At the top level of the game, the public assumes that players receive a seamless package of expert care. Players are expensive assets, commodities even, of their clubs, and their employers aim to provide the highest standard of medical care, doing whatever is necessary to protect them.
Conflicts will inevitably arise, because the club will want its star players to be back in the line-up at the earliest opportunity, raising the possibility that an injury may not have fully healed before a player returns to the field. Returning prematurely, including, as happened in the past, club doctors injecting strong painkillers that keep the player going but mask intense pain, are symptoms of the amalgamation of sportspeople and revenue.
Times have moved on since some of the earlier cases, where difficult issues arose in this complex relationship between club, club doctor and player, and the conflicting duties involved therein. Failures of medical care at the highest level of the game have been reduced, reflecting the increasingly high standards of treatment and, possibly, with an eye to avoiding the potentially eye-watering sums of damages that an injured sportsperson may be entitled to following a successful negligence claim. Whether the same level of medical attention is afforded to players in lower sporting leagues is doubtful, and it can only be hoped that the fundamental duty, which is that of the physician to his patient, prevails over the pressures to put players on the field.