Professional sport has evolved hugely in the last 20 years. Gone are the days of part time players, the ‘trainer’ with the magic sponge and the idea that injuries are just part of the game.
Players are on big contracts and have huge worth to themselves and to clubs. Academy players aspire to ‘make it’ and join the elite. Even journeyman players make a decent living, but often have little planned for their retirement in their 30s.
To look after these ‘assets’ there has been a revolution of the back-room staff with doctors, physios, strength and conditioning coaches, psychologists, analysts, and more, employed within professional sports clubs, particularly football and both rugby union and rugby league.
These employees are provided by the clubs to provide best care for the clubs ‘assets’ but are equally ethically and medically responsible for the individual player / patient. A difficult balance to strike.
The actions of these staff are vicariously the responsibility of the Club and any claim is made against the club as well as the employee.
The amount of money in sport has inevitably led to recriminations by players should the medical care provided by the club be deemed to be inadequate in returning that player to full fitness. In consequence, careers and contracts are lost. The assertion that ‘I would have been the next Wayne Rooney if I had been treated better’ is a common call.
The typical case is a player who makes a claim against the medical department of a rugby or football club for alleged poor treatment or mis or delayed diagnosis. Often it is an academy player who, because of his injury and alleged poor treatment, has missed out on a contract or progression in a highly competitive environment.
It is not, however, just alleged poor medicine. There remains an understanding that injury on the field of play is part of the game but increasingly, injuries sustained in training are being viewed as due to irresponsible training methods by club employees. If an injury is then felt to have affected a career progression, then claims are made against the staff and therefore, vicariously, the club for loss of earnings, lack of opportunity to progress and loss of contracts.
There are many issues that arise in these cases.
The sporting environment is very different to a hospital or private clinic. The physio room is the hub of the club, full of banter and energy. This provides a positive place to recover from the small knocks and bruises but does not always lend itself to good practice in complex cases. Players are constantly popping In for a ‘quick look’ as they go out to train, asking clinicians to make snap diagnoses in a few seconds. Unfortunately, these diagnoses are later held to account.
The players themselves are young and not the best historians or patients. They ‘just want to play’ and as a physio you are constantly managing expectations and youthful enthusiasm. What is more difficult to manage is what happens outside of the physio room and gym. Several cases have had players laying blame on medical staff for poor recovery, only for it to become clear that external activities have, on balance of probability, caused rehabilitation issues.
The measure we are asked to apply as an expert is whether the care was ‘reasonable’ and that of a ‘responsible body’ of clinicians. The word ‘reasonable’ is, however, not one that sits well with the elite sports environment. Elite sport is all about ‘excellence’ and ‘top class’ and with this comes an expectation that the medical care should also be at that level. This dichotomy leads to clashes between experts as to what is ‘reasonable’ at these levels.
Do players/patients have a right to expect more than they would receive at a private or NHS clinic just because they are good at sports?
How can the players demand that level of care when they expect it to be provided in that swift 2-minute quick look?
Is it indeed reasonable for the clubs to put the clinicians in the position of being asked for such opinions?
This is, however, the elite sport environment and typical across all sports. As a physio if you don’t like it then there are many willing to take your place.
What is reasonable recovery?
Within sport there is an increasing expectation that, regardless of the injury, a player should be able to return to at least the playing level they were at pre-injury and that if they do not then it is the ‘fault’ of the physiotherapy or medical team.
This is simply just not realistic and there are many studies that show that, however good the rehab, a percentage of elite players do not recover to that elite level.
The classic case is the Anterior Cruciate Injury (ACL). Prior to Paul ‘Gazza’ Gascoigne’s injury in the 1991 FA Cup final, this was a career-ending condition. Now, an ACL is seen merely as a 9-month blip in a football career and that, inevitably, you will come back ‘better than before’.
Manchester United striker Zlatan Ibrahimovic said, after his recent ACL, that because ‘lions do not compare themselves to humans’ he would return better than ever. In fact, the research shows that at best 82% of players get back to their pre-injured level – meaning 18% do not. Moreover, only 30% of injured players are still playing 3 years later. Is this the fault of the rehabilitation team?
Whilst the very elite are well looked after by dedicated and experienced physios and medics, even at Premiership clubs the fringe players and academies are understaffed and the staff themselves are, typically, not very experienced.
Working for a club carries a huge kudos, a badge of ‘quality assurance’ for the C.V. Being seen in and treating the public in the local club tracksuit gives credibility. Clubs know this and can easily fill academy posts with cheap, inexperienced youngsters whose dream it is, to run on the pitch with the stars. This inevitably leads to poor diagnosis and poor rehab. Add this to a hectic environment and care standards drop.
Remarkable when you consider the value these players have to a club and the demand for ‘excellence’ in care.
Physios as Medics
Physiotherapists, with their diverse range of skills, are often, even at international level, the first port of call and ‘triage nurse’ for all medical matters. Many clubs do have sports medicine doctors, but these are often part time. Sports medicine is a new specialism and they are in demand, expensive and not often attracted to lower profile clubs. Thus, the inexperienced physio is asked to make decisions on matters not necessarily within their scope of practice and in a challenging environment. Consequently, cases are coming forward whereby physios have missed medical issues.
It is easy to be critical, but one also must have sympathy for the position physios are put in by clubs. You can argue that they should not be placed or allow themselves to be placed in that position and you would be right, but they are.
As an expert, though, you must decide if the physio acted reasonably in giving ‘medical’ advice. Clearly there is a human level of interaction. Is it reasonable for a physio to give a player a paracetamol for a headache or period pain or should they say that this is out of their scope of practice? What if the headache turns out to be concussion or the period pain is something more sinister in a tummy? Retrospectively, it is easy to say that they should not have ‘diagnosed’ the headache as simply that, but you can see the scenario.
Rehabilitation and training process
The object of training and rehabilitation is to prepare a player for the rigours of competition. Injuries on the competitive field of play are traditionally seen as inevitable.
However, injuries on the training pitch are now being seen as the fault of the coach, the strength and conditioning staff and the rehabilitating physio. The argument being that players should be protected from injury by club staff, much like a health and safety code in a work place.
The counter argument is that unless you train a player at match intensity and with match forces then you are not preparing them for the rigours of the game. If injuries are inevitable on match day, then it follows that ‘fit for purpose’ training also comes with the same risk of injury. Indeed, it can be argued that training and rehabilitation that is not rigorous enough to be the equivalent of a match falls below a reasonable standard because it does not properly prepare the player for the game and is therefore a breach of care.
Still experts are increasingly looking at complaints that a drill or exercise ‘hurt’ a player, leading to lost playing time and opportunity.
Rehabilitation is about returning the player and the injured area to the point where training can be ‘safely’ undertaken. When deciding whether a rehab plan was reasonable you need be able to see the progression of loading and how the physio tested the injured area with ever increasing physical demands to the level akin to that of that player training and playing. A ‘return to play’ plan should include a set of physical criteria that a player is required to meet. This helps to make the process more scientific. For example, the needs of a rugby prop forward are very different to those of a goal keeper in football.
Clinical decisions in a club environment have additional pressures. ‘When can I play again?’ is the constant question. ‘I need to play in that game to show the manager what I can do’, i.e. my contract is running out and I need to be proving myself. Furthermore, the same question coming from coaches and managers applies more pressure on the physio, especially the young and inexperienced. Players and managers are powerful figures and use that to get the answer they want. The physio may also have a fan’s affiliation to a club and feel the pressure to have a quality player back on the pitch. This leads to poor decisions being made about readiness to train and play and breakdown and re-injury inevitably follow, as do the claims.
Notes or lack of…
A feature of cases, even at elite level, is very poor record keeping by club medical staff. They will claim busyness and the type of environment and to an extent they are right, but, of course, it does not help when things become litigious.
The environment is one where you see the players day in and day out, on the training pitch, in the gym, in the treatment room, in the massage room and in the canteen. It is not a formal clinic and conversation and actions are fluid, and this makes proper note keeping hard. Having been there I have a certain sympathy with the physios involved and I have been just as guilty. There are electronic note-keeping systems, but in my experience these are haphazard and subject to the vagaries of Wi-Fi connections.
Conversations between experts writing up joint statements often focus around the poor medical notes. Some experts feel the notes should be perfect and up to the high SOAP note standards of The Chartered Society of Physiotherapy while others have a little more sympathy, within reason. A good example of this is a case with which I ended up in court that had essentially no physio notes covering a whole 9-month rehab period. The judge and experts had to, effectively, rely on the 6-weekly letters from the surgeon. In the end the Judge accepted those as proof of ‘reasonable’ progress.
This raises an issue of what is a reasonable standard of note keeping and indeed if a poor standard is in itself both ‘un-reasonable’ and a ‘breach of duty’. As physios we were taught that without quality notes you could be hanged, drawn and quartered as you could not prove that what you did was right. The court case seems to say that the balance of proof is more incumbent upon the claimant to prove poor practice, than the defendant having to be able to prove that their actions were reasonable.
As an expert, therefore, it is hard to pick that middle line. How far does ‘on balance of probability’ go when deciding if you feel actions fell below a reasonable standard if you have little to go on but reported memories of what happened, maybe as long as 3 years ago, from both claimant and defendant?
Some experts will scan medical records for every little bit of information, almost trying to build the case, whilst others will simply say the notes don’t show evidence to counter the claim so that in itself is a breach.
My view of the middle line is that you should look at everything and piece it together, apply a view of whether the actions, as far as you can see, were reasonable, but qualify it with comment about the quality of the evidence.
Clearly there can ultimately be no excuse for poor note keeping. It is a fundamental part of being a clinician and part of your responsibility to the patient. However, it still happens and with the very elite. Last year Dr Chakraverty, then of British Athletics, admitted to a Parliamentary Select Committee investigating allegations of doping in sport that he had failed to note in Sir Mo Farah’s medical records an injection of a controversial substance. Dr Chakraverty described it as a lapse and that he had simply forgotten due to the ‘immensely busy job’ and ‘being on the road’. He also said it was ‘just the scenario you are in and not an excuse’. The Parliamentary Committee report of March 2018 found this ‘shocking’ and asked the GMC to look at it.
Claimant recollection versus contemporaneous notes
Claimant recollection, which feature in Particulars of Claim, can sometimes seem to come straight out of Google. Experienced players will have inevitably picked up an amount of sports injury knowledge over a career. This is particularly obvious on those occasion when there are good contemporaneous notes made by the Physios and that the reported symptoms do not match the claims in any way.
Often, bigger clubs will have several physios and massage staff and I have seen repeated accusations of a player being ‘ignored’ by all these clinicians when complaining of various symptoms. This then comes down to a ‘dispute of fact’, despite what any notes may say, and the expert must present this, as they see fit, with a view on ‘balance of probability’ attached to it for the solicitors or judge to make their decision.
Experts will differ in their opinion of this. Some will say, ‘if the claimant did report this then it was wrong not to act on the complaint and thus unreasonable’. Others will say, ‘the claimant complained to numerous physios over the years about numerous other issues, all of which were acted upon so why would they ignore this one? Especially as, on face value, it was quite a serious complaint?’ It is a balance of probability opinion based on a dispute of fact for the solicitors and judge to decide.
A further problem for solicitors and therefore experts in the sports field, following on from the poor notes, is that there is a high turnover of staff within clubs. A claim is lodged against a club and its employees and the club’s insurers pick up the case. If a case is a couple of years old then often the club employees, the physios, will have moved on. As quickly as managers. Poor records and the fast moving, fluid consultations style in clubs makes memories of what happened sketchy which means that the experts are left trying to form an opinion on limited contemporaneous information.
Physios are often difficult to track down and sometimes they will have moved abroad. In such cases, as it is ‘just’ a claim against the old club, trying to get those physios engaged with the issues is a difficult task which further limits the information coming to the expert.
Sports Injury Clinic
In comparison to the club a private or NHS clinic should be much less pressured. Rehabilitation should be comfortably paced, and expectations managed and met. Note keeping should and often is much better. The types of cases that arise concern misdiagnosis and both poor rehabilitation and treatment. Picture above, ‘Clinic environment’
Typical misdiagnosis cases are of things like Cauda Equina, where a low back pain and sciatica ends up being large disc injury and causes permanent damage to the nerves. This can be mitigated by early referral for surgery at the initial outpatient assessment. The expert must decide if the right questions were asked, the right tests performed and if the responses and results were interpreted correctly or ‘reasonably’ by the clinician.
The difficulty is that signs, symptoms and results are not black and white, and conditions do not present themselves perfectly or the same each time.
Thus, the view on what is reasonable must be balanced. Sometimes the signs were clearly missed, and the right protocol was not followed indicating an obvious breach. Alternatively, with the benefit of hindsight the patient, when the full diagnosis is known, will claim that the Physio should have acted differently. The expert has to decide if the actions related to the signs seen at the time of the assessment in question were reasonable. Furthermore, this is to be seen in the context of best practice at that time, not considering subsequent research and methods.
Poor rehabilitation and treatment
The cases where patient outcome is not what were expected still occur in NHS / private practice. As note keeping is better in the clinic environment without the distractions experienced in a sports setting, it is easier for the expert to follow the clinical reasoning and pathway. Good notes will show progression of healing and of rehabilitation loading. Bad notes are also harder to view as anything other than a breach of duty.
The same principles of a return to sport plan apply – although it might be a return to jogging or work plan. Sometimes the patient expectation is out of line with the reality, at other times the lack of understanding of the physio of the nature of the tissues and the healing process leads to too much load too soon. The expert must decide if the loading was either grossly inappropriate or reasonable in the context of the assessment. No rehab process is without its ups and downs and a physio is only ever using a sort of best guess as to what is appropriate. The human body is not predictable but there is still a line to be drawn between reasonable and irresponsible progression. Picture above, ‘Hands on loading’
Even the clear-cut cases can be difficult to judge. For example, I have been involved in a few cases of acupuncture-induced pneumothorax (collapsed lung). The patient has received appropriate acupuncture treatment for shoulder pain. The points used, however, are known risk points for pneumothorax if treated incorrectly and the patient might go on to develop this condition following treatment. Clearly, you would say the needle was inserted incorrectly and caused the lung collapse.
Maybe, but there is a common condition called spontaneous pneumothorax – where it can simply happen to any of us at any time. Indeed, the research shows that the chance of a spontaneous pneumothorax is greater than the chance of one being caused by acupuncture. So again, there is a balance of probability to be weighed. If the pain and symptoms were felt immediately then it is probably attributable to the acupuncture. But what if the signs came on hours or more later?
Accurate recording of technique is important, but I have yet to see a set of notes that record that the needle in these risk points was placed ‘obliquely to the chest and into pinched skin’ as it should be to avoid pushing it through the chest wall. Does not recording this show a breach of duty or that the physios didn’t do it? When is it probably acupuncture induced as opposed to spontaneous?
The world of sports injury is therefore a diverse and pressurised one. The working environment in clubs is difficult and leads to poor clinical practice and standards of record keeping. Despite the vast monies at stake, clubs cut corners in their care of players by employing inexperienced physios and ask them to make quick decisions on a player’s fitness. The inevitable mistakes that arise from these factors have to be balanced between the “completely unreasonable and reckless” through to the ‘on balance’, “they probably did a reasonable job”.
Clinical judgment and research has to be tempered with experience of both the condition and the process to provide an expert view to assist the court and the judge. Picture above, ‘Physio in action in the field’
Mark Buckingham is a Chartered Physiotherapist with 25 years’ experience in both elite sport and private practice. Having spent many years working with British Athletics and running the High-Performance Centre at Loughborough through several Olympic cycles Mark now owns a large private practice treating a wide variety of patients, from the elite athlete to the general public.
Mark is involved in all types of medicolegal work from preliminary views to full reports and court appearances. www.wpbphysio.co.uk. www.medicolegalphysio.co.uk.