Medical professionals and healthcare providers often treat professional sports persons. What are the consequences if something goes wrong, and a claim is made?
In this article, we consider the legal landscape in the context of doctors/surgeons and other medical professionals treating patients and the possible ramifications for healthcare providers if a claim is made by a patient - or by an associated third party.
The law
To fully appreciate the risk of treating patients with a unique exposure profile it is important to understand how the law applies when a medical malpractice claim is made.
To establish liability and succeed in a claim, the following criteria must be met:
- The patient must show they were owed a duty of care by the doctor;
- There has been a breach of that duty of care; and
- The breach of duty caused harm and loss to the patient.
Establishing a duty of care is usually straight-forward as doctors/healthcare providers owe a duty of care to their patient.
The challenge arises when assessing if there was a breach of that duty. Independent experts may be required to consider the evidence and provide an opinion. This is often complicated, with a range of opinion presented.
Where 1 and 2 are established, the next consideration is whether the alleged harm and loss have been caused by the breach. If causation evidence does not support the alleged causative link between the breach and the harm, the claim will be unsuccessful. If all criteria are met, the value of the claim (quantum) must be assessed and if possible agreed. Quantum value takes into consideration general damages, which is compensation for pain, suffering and loss of amenity, and special damages, which is quantifiable financial loss, both past and future.
Unique Patients
Most doctors working privately will be indemnified either by a medical defence organisation (MDO) or an insurance company. Special care and consideration must be given where the patients are not routine, for example professional sports persons, who are unique in terms of the exposure to risk and level of financial award in the event of a successful claim.
Scenario 1: Doctor A, works out of a private clinic and provides treatment to Patient B, an up-and-coming England Premiership rugby player. Patient B receives alleged negligent treatment which cuts short their career and makes a claim against the private clinic (not directly against Doctor A) for the negligent acts and/or omissions of Doctor A. The clinic in turn makes a claim against Doctor A, seeking a full indemnity.
Doctor A may have no indemnity to address the claim brought by the clinic but may have had indemnity if the patient claimed directly.
Scenario 2: If Patient B claims directly against Doctor A, the Doctor’s indemnifiers would address the claim. (Important note: if their indemnifier is a MDO, the indemnity arrangement is discretionary. If it’s an insurer, the indemnity arrangement is contractual but subject to contractual provisions).
Most patients claim directly against their doctor initially, however healthcare providers are often pursued as an additional defendant in case the doctor does not have the means to satisfy the claim and/or there are indemnity issues, whether real or suspected.
Corporate insurance negates the risk in both these scenarios, as insurance is contractual and healthcare providers can buy much higher limits of indemnity (per claim and in the aggregate) than individual doctors.
Case study: Radwan Hamed v Dr Peter George Mills, Tottenham Hotspur Football Club and Athletic Limited, Dr Charlotte Myong Cowie, Dr Mark John Curtin [2015] EWHC 298 (QB).
Facts:
Radwa Hamed (RH) at 17 years of age had signed professional terms with Tottenham (the club). In 2006, whilst playing for the club’s youth team, he collapsed and couldn’t be resuscitated despite attempts made by bystanders and paramedics. RH died and was later diagnosed as having suffered brain damage and anoxia. Prior to his death opportunities were missed to explore ‘unequivocally abnormal’ findings on RH’s ECG. This would have resulted in a discussion with RH’s parents, who would have been informed that there was a low risk of sudden cardiac arrest. His parents could have made an informed decision about RH continuing his career.
Under the Football Association (FA) protocol, new entrants to any football academy had to be the subject of cardiac screening. New players were required to have an ECG and ECHO performed by a technician with results being sent to an FA Regional Cardiologist.
Dr Mills, the FA Regional Cardiologist for South East England, considered the scans and noted the ECG to be ‘abnormal’ and recommended to the club: ‘suggest cardiac MR scan and clinical review’.
Dr Cowie and Dr Curtin were employed by the club as specialist sports physicians. Due to a breakdown in communications between Dr Mills and the club, no review occurred.
Decision:
Dr Mills and Dr Cowie were found to have breached their duty of care to RH. The club was vicariously liable for Dr Cowie (who was an employee). The claim was made directly against Dr Mills and the club - both accepted causation. The court found Dr Mills 30% responsible for RH’s death and the club was held to be 70% responsible.
During the trial, the doctors’ defence organisations agreed to indemnify the club for any damages it may be ordered to pay.
The final damages sum was expected to be around £7m.
Observations:
In cases where the patient has unusually high earnings and/or earning potential, it increases the likelihood their legal representatives will rely on the legal principles of vicarious liability and employers’ liability.
This case occurred in 2006. This was prior to the defence organisations reviewing their position on providing indemnity for members treating professional sports people. It is imperative that treating clinicians are covered for treating sports professionals and have appropriate limits. This is now a commonplace policy exclusion so healthcare providers working with clinicians practising in this area would be wise to validate the consultants’ indemnity or arrange a corporate solution to protect the organisation.
Third party claims
In the insurance context, a third party is anyone who is not the ‘insured’ and seeks to rely on an indemnity that is available to an indemnity beneficiary:
- Employers, clients, service suppliers, other doctors and patients are third parties.
Employer/Client:
Where a contractual relationship exists between a healthcare provider/club/ organisation and a Doctor, the contract governs the relationship between the parties. This contract may require the Doctor to carry their own medical indemnity. Where the Doctor arranges the cover, the healthcare provider/club/organisation is potentially exposed up to at least the limit of indemnity the Doctor has purchased and possibly more subject to means.
There is a growing trend of organisations seeking to limit their liability by requiring the Doctor to contractually agree a clause whereby they provide a full indemnity for claims arising from the medical services provided (such as in RH’s case). It is increasingly apparent that sporting clubs and governing bodies will similarly seek to limit their exposure. However, where doctors purchase their own indemnity, the indemnity limits available to them will be limited compared to those available on corporate policies. It is therefore vital that corporate providers reassure themselves that the cover their individual doctors hold is sufficient for the work they are undertaking. Should they not be reassured then they should consider arranging a corporate cover for confidence that the correct level of protection is in place.
Service Supplier:
An example could be an independent radiology clinic providing images to an external radiology consultant. In the event a scan is misinterpreted and a patient consequently misdiagnosed, should a claim be made just against the radiology clinic, the clinic may be entitled to bring a claim against the consultant, seeking indemnity for any patient damages. The contract between the parties may include indemnity provisions in favour of the clinic.
Other Doctors:
Sometimes it is not obvious which Doctor is responsible for any alleged medical malpractice. Typically, a patient may bring a claim against Doctor A, who then brings their own claim against Doctor B, alleging Doctor B is actually at fault and should respond to the claims and/or indemnify Doctor A.
Patients:
The most obvious but often forgotten third parties.
Types of indemnity
The issue of indemnity should not be overlooked. The General Medical Council (GMC) have the power to remove a Doctor’s licence to stop them from practising altogether if they do not have appropriate insurance or indemnity in place.
The GMC ‘Good Medical Practice’ guide 2024 states: ‘You must make sure that you have appropriate and adequate insurance or indemnity that covers the full scope of your practice. You should keep your level of cover under regular review.’*
The Faculty of Sports & Exercise Medicine provide the following guidance:
“1.7. Ensure that you have adequate indemnity protection against damages, claimant’s costs and defence costs relating to a claim brought by a patient’s employer, club, agent, sponsor or event organiser in relation to alleged negligent treatment of a patient. Members and Fellows should discuss indemnity options with their employer and medical defence organisation. Indemnity insurance may only cover the Doctor for claims made by the patient, and not by their club, agent, sponsor or other.”**
This points to the fact that claims can be brought not just by patients but also by third parties. The interplay between indemnity providers and third parties is an important issue to consider. For example, in the context of a sports medical practice, a claim brought by a professional sports person (their club, agent or sponsor etc) directly against the Doctor may or may not covered by the Doctor’s indemnity provider, depending on discretion and policy terms.
MDOs may indemnify a claim made directly by a patient, however they may not indemnify a claim made by an employer, or other third party, for the same loss.
The types of cover vary in the insurance market and so it comes down to the wording of your policy. Some insurers specifically exclude cover for ‘high risk’ endeavours, such as treating professional sport persons, but all cap the limit of indemnity.
Many healthcare providers find corporate cover a simpler and cost-effective solution, as they have full oversight of the policy wording and remove the administrative burden (and risk) of reviewing and monitoring each consultant’s indemnity documents.
Additionally, most insurers will not distinguish between a claim made by a patient and other third parties and so will provide indemnity in the event “a claim” is presented from the alleged negligence.
Important Policy Check List
- Does your insurance policy wording specifically exclude:
- professional sports patients?
- third-party claims?
- Is the aggregate limit sufficient? Patient and third-party damages will come from this limit.
- Doctors – does your contract with the sports club ask you to indemnify them? If so, check to see if you require your insurer’s permission to agree to this contractual clause.
As described above the issue of indemnity is complicated by the ways legal liability can arise. Always seek specialist support and input from your broker.
Mitigating the Risk with Aon
Reliance on individual consultant indemnity is illusionary, as ultimately an organisation can still be held to account simply by making them a co-defendant.
This is becoming a regular occurrence, and consequently healthcare providers are increasingly raising their concerns around consultants being inappropriately indemnified and being liable when claims are rejected. Costs can be high for routine patients but for those treating sports professionals, the costs will be far greater.
Doctors receive little indemnity education. We’ve seen clinics presented with professional indemnity and public liability certificates in place of medical indemnity. Neither policy would respond to a bodily injury due to negligence.
It’s vital healthcare providers consider protecting themselves should one of their Doctors’ indemnity provisions fail to respond to a claim.
Insurance can be tailored to meet an organisation’s specific requirements. Aon’s team of healthcare specialists can guide you through these options and place the right cover for the business.
If you would like to learn more please email [email protected]
Author: Jagjit Singh Virdi, Mills & Reeve LLP
Jagjit is a partner and heads the national medical malpractice team for Mills & Reeve LLP. He specialises in defending claims brought against a wide range of healthcare professionals and healthcare practices. He acts for clients in the private sector with supporting professional indemnity insurers.
Jagjit also provides strategic advice to businesses to help manage and minimise their claims risk.
*good-medical-practice-2024---english-102607294.pdf
**FSEM-Flipbook - Adobe cloud storage
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