MISTAKES WITH METATARSALS IN MAY:
a doctor’s duty to Rooney, club and country?

As the World Cup approaches, what duties to doctors owe to the people who pay their footballer patients' wages?

As June 10th and England’s first match of this summer’s World Cup against Paraguay comes ever closer, the eyes of the nation turn to the back pages at the breakfast table each morning for eagerly awaited news of Wayne Rooney’s foot. Whilst the image of this pale, sweaty extremity may sit rather uncomfortably with our toast and marmalade, on Rooney’s fractured metatarsal appear to rest not only the hopes of England winning the World Cup but also the commercial prospects of broadcasters, retailers, licensees and advertisers this summer.

We can be sure that young Wayne, nestled safe within the pastoral care of his club manager, Sir Alex Ferguson, is receiving the best medical treatment money can buy. We can also be sure that, were he to suffer additional injury as a result of clinical negligence on the part of his orthopaedic surgeon, Rooney would be entitled to bring a claim in contract or in tort against the clinician - the claim for loss of earnings could be of frightening proportions. But what if Manchester United’s prospects of regaining the Premiership title or winning the European Cup (I loathe the cumbersome “Champions’ League” moniker) were adversely affected by Rooney’s prolonged absence from the field as a result of such negligence? Would the Glazers have a right of action against the negligent surgeon?

Strangely enough, Rooney has featured (by name and fame only) in the recent case where this principle was considered.

Baggies in trouble

In January 2001 West Bromwich Albion signed a player called Michael Appleton on a 3½ year contract. In November 2001, almost 1 year into his contract, Appleton injured his right posterior cruciate ligament in training. The club’s senior physiotherapist arranged for him to have an MRI scan the following day and took him to see an experienced Consultant Orthopaedic Surgeon, Mr El-Safty, to whom the club had referred players before. Mr El-Safty advised that reconstructive surgery should be performed and, indeed, carried out the surgery on 7th December 2001. The operation was unsuccessful. Michael Appleton never fully recovered and had to retire from professional football. It transpired that Mr El-Safty’s advice that the knee should be reconstructed was negligent. Had the knee instead been treated conservatively, at least initially, then Appleton would probably have been fit again within about 4 months.

The qualifying round

West Brom sued Mr El-Safty in both contract and tort for the losses it claimed to have suffered as a result of his admittedly negligent treatment of Michael Appleton. The surgeon denied that he had a contract with the club and further denied that he owed any duty to the club in tort. The existence of a duty in contract or tort was tried as a preliminary issue by Mr Justice Royce in late 2005 and judgment was given on 14th December 2005: West Bromwich Albion Football Club Ltd v M M El-Safty [2005] EWHC 2866 (QB).

The test

On the evidence, the judge found that there was no contract between the surgeon and the club, notwithstanding their previous history of dealings and the fact that the surgeon looked to the club for payment of his fees. Perhaps more interestingly, the judge concluded that a doctor could owe a duty of care to a person who was not his patient, but whether or not a duty of care did in fact exist would depend on the circumstances of the case: Powell v Boldaz [1998] Lloyd’s Rep Med 116 considered. In ascertaining the existence of a duty, the questions to be asked were:

1. Was the loss reasonably foreseeable?

2. Was there sufficient proximity between the parties to give rise to a duty of care?

3. Would it be fair, just and equitable to impose a duty of care?

West Brom’s case was that the surgeon owed a duty to the club not to advise or treat the player in such a way as to cause economic loss to the club. 31 players had been referred to Mr El-Safty by the club since 1997, with the club paying the surgeon’s invoices.

The deadly knock-out phase

Despite considering a very large number of authorities from Hedley Byrne onwards, the judge found that all of them turned on their own particular facts and no case was truly analogous. In answering the questions he framed above in relation to the existence of a duty, the judge found that it was reasonably foreseeable that West Brom might suffer some loss if Appleton was negligently treated so that he was unable to return to play football. However, acceding to the submissions of Stephen Miller QC on behalf of the surgeon, the judge answered the second and third questions in the negative, concluding that no duty was owed to the club. In relation to proximity, the judge noted Mr El-Safty’s evidence that whereas he had never visited The Hawthorns, he had a rather closer association with Aston Villa, having both visited Villa Park and met Doug Ellis, its long-serving Chairman. In these circumstances, the judge drew no distinction between these facts and where a company foreseeably loses money as a result of negligent medical treatment of its managing director.

Public policy

It was in answer to the ‘fair, just and equitable’ question that the judge considered (perhaps with some foresight) the blessed Wayne (note the apparent hierarchy, Posh):
“Should a consultant for example advising a Rooney or a Beckham or a Flintoff have a potential tortious liability to their club/county or England for negligent treatment – a liability running to many millions of pounds?
What about negligent treatment of a resident conductor of an orchestra or a leading player in a rock band or the managing director of a major company? The consultant would probably know each patient was a valuable asset.
Should the consultant take steps to ascertain their value so as to evaluate his potential liability? Should he seek to put in hand a disclaimer or limitation of his liability? How would he do this? How would insurance premiums be affected?
In my judgment, one only has to pose these questions to conclude that it would not be fair, just and equitable for there to be liability in such cases.”

Beating the offside trap

I suspect that we have not heard the last word on football clubs seeking to fix the medical profession with liability for economic loss as a result of negligently treated players. A careful reading of Royce J’s judgment should permit the drafting of terms of referral which could make doctors liable in these circumstances. Meanwhile, spare a little thought for the premiums paid by Rooney’s doctor…

Richard Booth

1 Crown Office Row,
Temple, EC4