Abstract
All doctors require indemnity before they can be involved in the treatment of patients. Where patients are treated in the National Health Service, this is provided by Crown Indemnity. If a patient is treated outside the NHS the doctors treating the patient need to seek some other form of indemnity and, in the United Kingdom, this is obtained from one of three sources, the Medical Protection Society (MPS), Medical Defence Union (MDU) or Medical & Dental Defence Union of Scotland (MDDUS).
Since April 2007 the MPS has not offered indemnity to doctors who are newly employed by or contracted to a Premier League football club, and from 1 April 2008 that position has been extended to those existing members such that the MPS now no longer offers indemnity membership to any doctor who is employed by or contracted to a Premier League football club.
Doctors who are employed by or contracted to a Premier League football club have two responsibilities – to the player and to the club. If something goes wrong and the doctor's treatment has been found to be negligent, financial recompense may have to be made not only to the player but also the club to compensate for their financial loss resulting from the loss of the player. If the player cannot return to football his loss of earnings may run into many millions. The club not only lose his services but also the transfer fee if he has been recently bought or the potential transfer fee if he were to be sold, the latter may run into tens of millions and may be much more expensive than the loss of players' earnings. Currently, in the UK, transfer fees in excess of £30 million have been paid and there has been discussion about a possible transfer fee in excess of £100 million. It is for this reason that the MPS will no longer indemnify members who are employed by or contracted to a Premier League football club. The latter includes all doctors who treat a Premier League football player outside the NHS and accept a referral from a non-medical professional such as the player's agent, manager and/or send the fee to the club. If a player is referred by a healthcare professional, such as the club doctor, the fee note is sent to the player, even if it will be paid by the club and the contract for treatment is between the doctor and player only (and not the club) then the treating physician or surgeon will not be considered to be contracted to the football club.
One of the difficulties that arises is that many players do not want to divulge their home address and want all correspondence to come to them care of the club. There is a concern that if their home address is on a hospital database it may become more widespread knowledge. This may make it difficult for the treating doctor to communicate with his/her patient unless they are regularly attending the club, for example as part of their rehabilitation.
The MDU and MDDUS currently will continue to indemnify doctors employed by or contracted to Premier League football clubs but all doctors are advised to contact their defence organization to confirm that the organization is fully conversant with the nature of their work practice and that their indemnity cover encompasses all aspects of their work. While MDDUS continues to provide indemnity for doctors employed by or contracted to Premier League football clubs, it will not accept new applications and has the whole question under review. The indemnity cover for contracted work provided by the MDU is ‘dependant on the MDU having been informed, in advance, of the work you are undertaking and agreeing to indemnify this work’.
UK-paying members of the MDU each receive an individual professional indemnity insurance policy which covers clinical negligence claims up to a limit of £10,000,000 for each and every claim or in the aggregate. If a large claim, or a number of claims, cause an individual member's policy limit to be exceeded, then that member would be in a position to approach the MDU to seek ongoing assistance on the traditional discretionary basis but it is likely that the MDU Board would limit the indemnity to the £10,000,000 available under the insurance policy.
If a doctor has a contract with a club it does not matter whether they are paid or a volunteer. The setting (clinic/pitch side/changing room) in which a sportsman is assessed is not as important as the level of sports person.
If a Premier League footballer is treated in the NHS, the doctor(s) treating him would be covered by Crown Indemnity but if the player is subsequently transferred to the private sector the above conditions apply.
Any contract and indeed the duty of care should be between the treating doctor and the player himself. If a referral is accepted from the employing football club, the fees are sent to the club and/or the contact is with the club, the MPS may not indemnify the treating doctor.
There are other elite athletes who earn large sums, for example in golf, tennis, etc. Doctors who treat such athletes are also advised to question the extent of their cover and, if deemed insufficient, to make additional arrangements.
The question arises as to the position of Doctors who are employed by or contracted to a club. The MPS will no longer provide indemnity, the MDDUS will not accept new applications and the MDU has a limit of £10,000,000 which will not cover the cost likely to be awarded if a doctor is found negligent and there is a claim from the player for loss of earnings and a claim from the club for substantial losses. The same applies to doctors contracted to a national team.
However, some doctors who have been asked to assess an injured player selected for England have negotiated with the FA lawyers to provide cover over and above the cover provided by their defence organization.
As yet there has not been a successful claim against a doctor for treating a Premier League footballer but the potential is there and it is likely that with time there will be further restrictions on the indemnity provided by the MPS, MDU and MDDUS. It is essential therefore that arrangements are made to indemnify doctors treating Premier League footballers otherwise we are likely to see the scenario where a doctor will not treat a footballer who is in need of urgent treatment until suitable indemnity has been provided by the club or Football Association, depending on who is responsible for the player at the time (illness or injury on Club duty versus injury or illness on international duty).
Although the indemnity providers have stated any contract and indeed the duty of care should be between the treating Doctor and the player himself, the player's agent may have other ideas. There is at least one Premiership footballer whose agent was not happy with the referral from the club physiotherapist and insisted that the player be treated elsewhere and, in this instance, the player was treated abroad.
There also is the issue of international versus Club responsibility and it has been reported in the press that the England manager would not accept the advice of the player's club and insisted that the player be assessed by the England medical staff. If the England medical staff agreed to assess the player their contract is not with the player himself and they will not have a referral from a health professional. Secondly, are they in a position to assess whether a player is fit to play? The player may have sustained a fracture, the fracture may have healed but the medical staff may not be in a position to give an expert opinion on the player's fitness to compete.
Should a player, for example who has sustained a metatarsal fracture, play under these circumstances and sustain a hamstring injury, a case may be made against the international medical staff that the hamstring injury occurred because the player was not match fit. It may be difficult to defend if the player's club doctor, club physiotherapist and others claim that although the fracture had fully united the player was not yet match fit and was still undergoing a rehabilitation/fitness program. The more pressure that is applied to medical staff by managers and others, the less likely are the most senior and experienced doctors to accept such referrals.
The escalation of transfer fees and salaries also raises difficulties, for example a surgeon treating a footballer whose potential loss of earnings, if he can't continue to play football any longer amounts to many tens of millions, may find the cost of additional indemnity insurance higher than the fees for the operation and may not accept referrals because of the potential financial cost to himself should he accept the referral.
The position is likely to become critical in the near future and the sooner the Football Association, the Premier Football clubs and the Professional Football Association meet with the medical profession to make suitable arrangements regarding indemnity costs the better. If not we may reach a stage where premier league footballers seeking private treatment will not find it available in the UK.
A further difficulty with the treatment of elite athletes, particularly Premier League footballers is confidentiality. The professional duty of confidentiality puts a doctor in a difficult position when a patient, his agent or manager goes to the press. No matter what has been placed in the public arena, with regards to the individual's diagnosis, treatment or prognosis, the doctor must respect the patient's confidentiality. To do otherwise risks disciplinary action. The GMC has issued draft guidance on responding to press enquiries (See
Doctors who are employed by clubs have a dual responsibility – to the player (their patient) and to the club (their employer). They must inform the club that the player is not fit to play and/or train because of an injury, illness or incapacity but may not reveal any details without the player's consent, irrespective of the demands of the player's agent, club manager, et cetera. The player must be made aware that details of his condition may have to be made known to other health professionals involved in his treatment and rehabilitation.