Footballer makes claim against physiotherapist for failing to spot damaged knee

Posted by Malcolm Johnson on

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Footballer physio on knee
In the case of Hall v Thomas and Others [2014] EWHC 1625 (QB) the Claimant was a professional football player. He suffered a twisting injury on the 12th August 2005 whereby there was a rupture of the Anterior Cruciate Ligament ('ACL') and a tear of the posterior horn of the lateral meniscus for which he underwent appropriate surgical treatment.

His football club put him in for a programme of rehabilitation. He claimed that during that rehabilitation, his physiotherapist failed to realise that far from recovering, his knee was in fact getting worse. On the 18th July 2006 extensive chondral damage was discovered in the knee, in particular degenerative changes in the medial compartment and the lateral compartment together with the presence of numerous loose cartilaginous bodies.

However the story did not stop there. On the 20th August 2007 a MRI scan discovered a complex tear of the posterior horn of the medial meniscus for which the Claimant underwent an operation for its sutured repair in an arthroscopy on the 7th September 2007. A complication from that operation, namely the subsequent infection of the knee by a particularly virulent bacterial organism known as staphylococcus aureus ('Staph A') caused septic arthritis in the knee. This in turn gave rise to further chondral (cartilage) damage to the knee and other damage to the joint.

This infection was first identified and treated by aspiration, washout, debridement and the intravenous introduction of appropriate antibiotics in an operation on the 19th September 2007. The decision was taken by the treating surgeon, not to give up on the meniscus repair which was left intact in the hope that it would still succeed. In the event that hope was not fulfilled and on the 12th October 2007 an operation was carried out in which the medial meniscus tear was found to have propagated and not healed. A medial menisectomy was performed.

The Claimant was left with a knee which was unfit to withstand the rigours of a professional football career.

The Claimant pursued the Second Defendant, the physiotherapist and his employer, the Third Defendant for failing to realise that his knee was getting worse and continuing with rehabilitation. He also pursued the First Defendant, the football club's doctor for failure to take steps to ensure that he was treated for the Staph A infection by the afternoon/early evening of the 17th September 2007 when he saw him.

The First Defendant admitted a breach of duty by reason of such failure but only for the two day delay between the 17th and 19th September 2007.
Mr Justice King found no breach of duty on the part of the physiotherapist.

The Claimant's case was that the brevity of the physiotherapist's notes were such that they could not be viewed as reliable or an answer to his evidence that he was consistently and continually complaining about pain in his knee throughout the rehabilitation. King J rejected that evidence. The analysis of the documented history of the rehabilitation disclosed no 'red flags' ever being raised of which the Second Defendant ought to have been aware that the rehabilitation programme he had been pursuing was inappropriate or was putting the Claimant at risk of damage being caused to his knee.

The Claimant’s counsel had submitted that no proper on going assessment of the Claimant was ever made by the Second Defendant properly to permit the Claimant's progression to training. Counsel relied on the expression of principle by the Court of Appeal in Keefe v The Isle of Man Steam Packet Company [2010] EWCA Civ 683 to the effect that 'a defendant who has in breach of duty made it difficult or impossible for a Claimant to adduce relevant evidence must run the risk of adverse factual findings'. Keefe was applied on causation rather than breach of duty in Shawe-Lincoln v Neelakandan [2012] EWHC 1150 (QB).

However King J said that the lack of detailed notes could not in itself amount to a cause of action giving rise to any actionable damage.

Although it was unnecessary, King J did find that the issue of causation was established as against the Second and Third Defendants. He considered the opinions of the expert orthopaedic surgeons, and he found the Claimant’s orthopaedic expert more compelling. The rate of changes in the initial 12 months to summer 2006 was remarkably high, and highly unusual and it was remarkably less in the 12 months thereafter. Consequently had King J concluded that there had been activities instigated in the programme at the behest of the Second Defendant in breach of his duty of care, then he would have had no difficulty in concluding that such breach of duty had materially contributed to the damage complained of in this case.

King J now turned to the claim against the First Defendant. The Claimant attended hospital on the 16th September 2007 with a slight swelling of the knee and fever and generalised aching. He was sent home with the recorded impression being that of a 'flu-like infection'. He was also put onto antibiotics but these were oral and not the intravenous type required to kill/treat the Staph A bacteria.

The next day, the 17th, when the Second Defendant spoke to the First Defendant, the First Defendant conceded that he should have asked about the full blood tests results but did not. Rather the Claimant was continued on the oral antibiotics on the premise he was suffering from a general viral infection. Had however the First Defendant asked for those results he would have discovered that the White blood cell (leukocytes) count (WBC) was raised (18.9) indicative of a host response to an infection and the CRP level (C Reactive Protein) were very high again indicative of a host response to an infection. The result was that it was not until he was examined and treated on the 19th September that the correct front line treatment for the Staph A infection began.

The rate at which the damage would occur following the invasion of the bacteria was a matter of some dispute. Having considered the expert evidence, King J found that the likelihood was that 50% of the septic arthritis induced damage would have been avoided by treatment on the 17th September and hence that was the damage for which the First Defendant was responsible.

He would however one important caveat to the above finding. It concerned the issue whether, absent any negligence on the part of the First Defendant, the meniscal repair which was found not to have healed on the 12th October, would have succeeded or would have failed in any event. This was important since even if the First Defendant was responsible for 50% of the septic arthritis induced damage, this would not, on the evidence, make him responsible, even to the stated degree, for the difference between a career in professional football and not having one if regardless of the delay in treatment the meniscal repair would have failed.

King J said that he did not find it necessary to resolve those particular issues since all the orthopaedic experts were agreed that once the septic arthritis had set in for 48 hours the meniscal repair was probably going to fail.

Consequently the Defendant would only be responsible for two days delay in treating the knee.

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About the Author

Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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