Cillian Willis to sue Sale over 'career-ending concussion'

[ALJ]

http://www.bbc.co.uk/sport/rugby-union/37173849

Do people think this is a fair law suit?

Feels like a little bit of ambulance chasing but probably not party to all the facts.

(P.S. New here so apologies if this is a double post or in the wrong place).

 

[Vieux Talonneur]

Welcome ALJ.

Nice easy question for a first post! Hard to comment without the facts, but a very difficult area and certainly not as prominent in 2013 as now. Not what I want to see at all - cans of worms etc, but equally if someone has genuinely lost a career because of their employer's negligence its hard to argue against it.

Would interesting to see what he is actually suing for.

 

[ncurd]

Under current concussion protocols I'd say this was slam dunk case if it can be proved he wasn't assessed properly.

Back then less certain its like Rugby Union learnt they weren't being careful enough and have now remedied it. How many players in the past have been allowed to continue on with potential concussion or injury? I imagine its in the hundreds possibly thousands. We'll see but I hope common sense prevails here under the knowing potential issues of playing contact sport as long as your team are working under advice for the time you shouldn't be allowed to sue.

 

[Peat]

The only way this sport will take concussion seriously enough is if someone threatens their wallets. I don't know whether Willis has a case here or not, but certainly some players do, and I welcome them stepping forwards and taking their swing.

 

[ALJ]

Completely agree that concussion needs to be taken seriously and (a couple of notable exceptions aside), it appears to be the case now.

He's going to have to prove negligence though isn't he?

 

[smartcooky]

The only way this sport will take concussion seriously enough is if someone threatens their wallets. I don't know whether Willis has a case here or not, but certainly some players do, and I welcome them stepping forwards and taking their swing.

Well the sport, at least in this neck of the woods, takes concussion very seriously... any doubt and players are stood down as a precautionary measure.

This is mandated by the NZRU, and a heavy fine awaits any club, team or franchise who fails to comply

Completely agree that concussion needs to be taken seriously and (a couple of notable exceptions aside), it appears to be the case now.

He's going to have to prove negligence though isn't he?

If he was Florian Fritz playing for Toulouse, there is video evidence of Guy Noves' negligence.

http://en.espn.co.uk/france-top-14-2013-14/rugby/story/224859.html

I hope Willis wins... it will send out a warning to people like Noves et al who treat players as a disposable commodity

 

[TRF_Olyy]

If we've made him play on when clearly concussed then we deserve to be bent over a barrell.
If it was negligence in not noticing he was concussed when assessing him then it's not as bad, but still crap by whoever did the assessment (it's not unheard of for players to say they're fine, it's up to the medic to see through it).
This was pre HIA, wasn't it? So it was someone who would have gone on to the pitch to check him?

 

[Peat]

Smartcooky - Have there been any fines?

 

[ALJ]

(it's not unheard of for players to say they're fine, it's up to the medic to see through it).
This was pre HIA, wasn't it? So it was someone who would have gone on to the pitch to check him?

I'd say it's pretty bog standard for players to say they're OK to carry on (we've all done it).

I believe it was pre-HIA, kind of why I made the post tbh.

 

[smartcooky]

I'd say it's pretty bog standard for players to say they're OK to carry on (we've all done it).

I believe it was pre-HIA, kind of why I made the post tbh.

AFAIK, not so far, but compliance is universally accepted here across all levels of Rugby. The mandate was introduced after the Josh Hohneck incident where the player was clearly concussed and then was allowed back back on. Also introduced was some video technology to help sideline doctors spot potential concussion incidents and call for a SCAT3 test.

 

[RedruthRFC]

If we've made him play on when clearly concussed then we deserve to be bent over a barrell.
If it was negligence in not noticing he was concussed when assessing him then it's not as bad, but still crap by whoever did the assessment (it's not unheard of for players to say they're fine, it's up to the medic to see through it).
This was pre HIA, wasn't it? So it was someone who would have gone on to the pitch to check him?

I'm not sure that failing to notice a concussion is quite so forgivable. If this happened, surely the club failed in their duty of care for their employee.

I'm not sure how relevant HIA is here, this is a UK law matter, not one of rugby rules / regulations, although the court may well take queues from the recommendations of the governing bodies at the time. As the protocols in place at the time were very poor, I'd have thought that Willis' lawyers would be arguing medical malpractice rather than failure to follow guidelines. As has been noted, I'd have thought that any physician would testify that a player's own opinion of their ability to carry on playing safely is close to irrelevant - they're not medically trained and may have recently been subject to brain trauma, making it a weak defence against malpractice.

I would have thought that the process of establishing culpability is as follows:

For starters, you would need to establish that this incident lead to his being forced to retire.

If it did, did the medical practitioner fail to make a competent assessment of the injury? If not, no case to answer.

If so, then was the practitioner sufficiently qualified? If not, then the club have failed in their duty of care, so must be liable.

If so, then it sounds like medical malpractice, so all that's left to establish is whether the club are vicariously liable for their employee's incompetence or whether the liability would lay with said practitioner (and his / her insurer).

One more thing that I'm surprised hasn't been noted, if Willis is related to BOD, presumably, he's related to BOD's uncle Barry, who has been outspoken about World Rugby's handling of concussion. I wouldn't be at all surprised if it's him behind the scenes pulling the strings here.

FWIW, I'm glad to see a case like this brought. It's unfortunate for Sale that they're on the receiving end and I accept that at the top end of the game, concussion is being taken far more seriously and being dealt with better, but it's a useful reminder to all clubs, particularly those further down the pyramid of the potential consequences of not taking this seriously.

 

[ALJ]

Don't get me wrong, duty of care is clearly crucial but it sounds to me like we're going down a dangerous road here.

Put this scenario into a local club game - and a could player potentially sue for loss of earnings (rather than career being ended).

Does this mean we need medical practitioners (i.e. doctors) at every game to ensure this can't happen?

I was a first aider of physio, I'd be extremelly reluctant to make a call on a concussion if I risk getting sued for malpractice.

Where does it end?

 

[RedruthRFC]

We've already been down that road, albeit not in a case relating to a medical issue:

http://www.independent.co.uk/sport/rugby/rugby-union/the-punch-that-rocked-rugby-917738.html

AFAIK, doctors are required to be in attendance in club games down to level 4 in this country. This case is about a level 1 match, I'm pretty sure that Sale would have had multiple doctors in their employ at the time, presumably all in attendance at the match. I imagine that the courts would take a view on the level of medical expertise that it's reasonable to expect to be in attendance dependant on the level the match is being played at. In Willis' case, doctor(s) were in attendance, so the contention must be that either they weren't used at the appropriate time (i.e. someone with a lower level of qualification taking a decision that should have been referred to said doctor) or that the doctor failed to make a correct assessment. Not saying that either was the case, just that this is what Willis' lawyers will be seeking to establish.

At a much lower level, I would hope that a court would take the pragmatic view that a first aider who has passed a Pitchside Trauma course would be sufficient and assess possible incompetence accordingly. However, as you say, a test case in which a court took a hard line view could force a radical rethink from the RFU and make lower level matches hard to play. As I said above, this is a legal matter, not one of rugby rules and regulations, so if the legal view is radically different to the rugby one, goalposts could be moved significantly.

I have no legal or medical training, my post is pure speculation based on cases I've heard about. I'm a bit of a belt and braces type, but I would want to be sure I understood my level of liability before acting in any capacity on a rugby pitch, particularly in a medical capacity and would certainly make sure that I carried liability insurance. If stories like this encourage people not to act outside their remit / level of expertise and to exercise caution, this must be a good thing. In the scenario you describe, if any doubt exists, the call must always be for the player to leave the field.

Being a medical case, I don't know whether there is less scope likelihood of vicarious liability on the basis that the club employed suitably qualified individuals who were members of their professional body or not.

 

[Which Tyler]

Without knowing the details of the case, and without any legal training...

It would seem that, for the club to be responsible there would need to have been a diagnoses of concussion; but that the club applied pressure on the player to play anyway (the latter would essentially be a given). If the diagnosis was missed at the time (and before the days of HIA protocols), then at worst it's medical negligence, and you go after the Dr (though we all know that lawyers will throw suits around like candy and hope that something sticks); at best, it's a misdiagnosis... which happens; especially under time pressures and with a patient who's lying to you.

A test case has been inevitable for a good 3-4 years now; and in fairness, Rugby has upped its game in regards to concussion; just nothing like enough.

TBH at the elite end, there's no particular excuse for not using objective measures (ie fMRI scans) on an annual basis, rather than partially objective measures (neurological testing and Pt questionnaire) which can (and are known to) be faked. Obviously, the further down the ladder you go, the less finance there is, and the more you have to take personal responsibility.

I don't think anyone now can play the ignorance card that was at the heart of the NFL cases - rugby players DO know the risks associated with playing rugby, and choose to anyway; there's no hushing up of information, attempts to discredit Dr.s or to pretend that it's not an issue.

 

[pagliaccio_euforico]

Don't get me wrong, duty of care is clearly crucial but it sounds to me like we're going down a dangerous road here.

Put this scenario into a local club game - and a could player potentially sue for loss of earnings (rather than career being ended).

Does this mean we need medical practitioners (i.e. doctors) at every game to ensure this can't happen?

I was a first aider of physio, I'd be extremelly reluctant to make a call on a concussion if I risk getting sued for malpractice.

Where does it end?

a club player doesn't have their career ended by concussions unless it is a life altering one

a professional on the other hand has to find another career and i think it should be treated similar to workers comp, if you get hurt in the line of work they should compensate you

and there should be at least a first responder at every game

 

[ALJ]

a club player doesn't have their career ended by concussions unless it is a life altering one

a professional on the other hand has to find another career and i think it should be treated similar to workers comp, if you get hurt in the line of work they should compensate you

and there should be at least a first responder at every game

No, hence the 'loss of earnings' reference rather than career ending.

Getting hurt in the line of work has to be a standard part of playing professional rugby doesn't it? I imagine that their compensation is that they carry on getting paid and receive the best possible medical treatment.

I think all clubs carry insurance to protect players (and themselves) but at the lower levels, a relatively small increase in premiums would potentially have a big affect.

Agree on first responder, the question is; What degree of liability is that first responder being exposed to?

Interesting to see the response from the coaches:

http://www.bbc.co.uk/sport/rugby-union/37191102

 

[ncurd]

A few fair points in regards to substitutions. Baxter's quote is the most worrying.

My big concern is, are we going to create - if we are not very careful - a scenario for our medical staff where they are almost having to drag players off the field just in case? That's the big worry for me.

Of course they should be dragging players off "Just In Case" any hint of concussion the player shouldn't be playing.

 

[ratsapprentice]

A few fair points in regards to substitutions. Baxter's quote is the most worrying.Of course they should be dragging players off "Just In Case" any hint of concussion the player shouldn't be playing.

I think he means they'll be dragged off regardless of the outcome of the assessment - if you make the doctor/assessor so scared of litigation then it's a logical end.

You want them to be making decisions purely based on the assessment - not whether they're going to be sued or not.

 

[TRF_heineken]

This is very interesting.

I wonder what would happen in South Africa with our law.

I'd be very interested to see the English law for civil lawsuits that handles on negligence and the parameters that one has to prove that the respondent was in fact negligent. It would also be interesting to see how Willis and his legal team goes about in linking the club as the negligent party. To me, unless the Club's director told the medical staff directly that Willis must stay on, then sure he can take them on. But If the medical team or doctor made an on-field call and got it wrong, then the negligence is with that person and not the club.

Does medical practitioners also have a Fidelity Fund and Insurance to cover them when there are negligence cases? That's what we have here in SA.

 

[RedruthRFC]

I think he means they'll be dragged off regardless of the outcome of the assessment - if you make the doctor/assessor so scared of litigation then it's a logical end.

You want them to be making decisions purely based on the assessment - not whether they're going to be sued or not.

Agreed, but doesn't Baxter's attitude effectively say that the HIA as it stands isn't effective? Of course medics are going to make incorrect diagnoses, surely and court is going to accept this as long as best practice according to the GMC has been followed.

- - - Updated - - -

But If the medical team or doctor made an on-field call and got it wrong, then the negligence is with that person and not the club.

Assuming that negligence can be proved, then I would think so, but as whoever made the assessment is an employee of the club, who in turn have a duty of care for the player, then the club could be vicariously liable for their employee's (whoever made the assessment) actions in the same way that the NHS here in England could be liable for medical malpractice in a hospital or doctor's surgery. It's not an area of law I have a very clear understanding of at all.

Does medical practitioners also have a Fidelity Fund and Insurance to cover them when there are negligence cases? That's what we have here in SA.

I'm 99% sure that they would carry indemnity insurance.

- - - Updated - - -

I think all clubs carry insurance to protect players (and themselves) but at the lower levels, a relatively small increase in premiums would potentially have a big affect.

I'm not sure that this is true at the very lowest levels. I've heard players at the lowest level in my neck of the woods talking about carrying personal insurance.

I'm not a fan of this quote from Baxter either:

Everything is so grey, that to really protect yourself, you could easily see 10 HIAs in a game. We just have to be a bit careful about where it will end up.

My understanding is that everyone who has suffered and head injury or suspected head injury should have a HIA. He's effectively saying that currently players who should be assessed aren't being.