SPORTS MEDICINE, INJURIES, REHABILITATION AND THE LAW

BY MARK JAMES INTRODUCTION

Litigation arising from sports injuries has seen a dramatic increase over the past 25 years. From a position where injury was considered to be an acceptable hazard of sports participation, many athletes now search actively for someone to blame and, eventually, someone to sue. Injured sports participants have successfully sued other players, their opponent’s employer, the referee, and the owner of the sports facility where the injury occurred. Actions against a sport’s national governing body and international federation have been allowed but have rarely succeeded (1). Although there is no definitive explanation for this

phenomenon, a number of factors appear to influence an injured player’s decision to commence legal proceedings. These include the rise in people’s awareness of their legal rights, the encouragement by claims agents to sue when injured, the greater ease of access to legal advice following the introduction of contingency fee arrangements (commonly referred to as “no win, no fee” agreements), and a lack of adequate insurance on the part of the injured player. With the ever-increasing numbers of medical staff treating and advising sports participants, it is a natural extension of both medical and sports law to encompass the liability of sports and exercise medical practitioners. This article highlights the legal flashpoints at which sports medics may attract legal liability, how and why the law applies to these situations, and how to avoid being on the wrong end of a legal action.

THE LEGAL FLASHPOINTS

There are four main flashpoints when the conduct of a sports medic might be subject to the scrutiny of the law: n “First contact”, ie. the initial treatment or first-aid administered to a player at the time of injury. n Quality of the design and appropriateness of the implementation of return-to-fitness regimes that aid the rehabilitation process.

FITNESS SHOULD BE AWARE OF THE LAW

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EVERYONE ASSOCIATED WITH A SPORTSPERSON’S HEALTH AND

The use of litigation in sport is increasing. The conduct of a sports medic will be judged by the standards of the reasonable practitioner in their particular specialty. Because the vast majority of practitioners act within their spheres of competence, the number of cases involving sports medicine practitioners is extremely small. This does not mean that there is any room for complacency.

n Potential, from a practical perspective, for a conflict of interest that can arise following the referral of an injured sportsperson by their club to a specific medical specialist. n When acting as an expert witness and giving evidence at trial on the competence of another person’s practice.

Each of these scenarios could occur at either the professional or the amateur level of sport, but it is at the elite or professional level where the compensation awarded has become so high that it can affect a sports medic’s insurance position. In the recent case of Collett v Smith and Middlesbrough Football and Athletics Company (1986) Ltd (2), the claimant had suffered a career-ending injury as a result of a negligent tackle performed by an opponent footballer. He was aged 19 at the time of the tackle and had recently been offered a professional contract by, and was playing for, Manchester United Football Club. He was awarded almost £4 million in lost earnings on the basis that he would have had a successful career playing professional football in the Championship and Premier Leagues for the next 11 years. With sums such as these being awarded by the courts, it is essential that everyone associated with a sportsperson’s health and fitness is aware of how and why the law might apply to their professional practice.

FIRST CONTACT – TREATING THE INITIAL INJURY The law applicable to all medical practitioners, regardless of their specialty, is that found in the seminal cases of Bolam and Bolitho (3): that your conduct will be judged by the standards of the reasonable practitioner in your particular

sportEX dynamics 2009;20(Apr):14-16