If West Bromwich Albion wins its damages claim against a surgeon who treated one of their star players, the "flood-gates" could open for a host of similar cases against the medical profession, Appeal Court judges were told yesterday.
The football club is bidding for more than £1 million compensation amid claims that the surgeon's "negligence" destroyed the career of Michael Appleton after he injured his knee during training in November 2001.
However Consultant Orthopaedic Surgeon Medhat El-Safty insists that the only "duty of care" he owed was to his patient, Mr Appleton, and not to the club.
High Court judge Mr Justice Royce ruled in Mr ElSafty's favour last December, but West Brom is now battling to reverse the decision at London's Appeal Court.
Jeremy Stuart-Smith QC, for West Brom, argued that Mr El-Safty, as the surgeon regularly used by the club for treating its players, owed a legal duty, both as a matter of contract and under the law of negligence, not to cause the club "economic loss".
He said that, although the surgeon's bills were usually ultimately paid by Bupa under the club's medical insurance policy, they were sent by Mr El-Safty's wife, who acted as his administrator, directly to West Brom for settlement and not to the patient.
That was "potent objective evidence" that a contract existed between the club and Mr El-Safty, and Mr Stuart-Smith told the court it would be reasonable for the surgeon to be found liable not just to Mr Appleton, but to West Brom as well.
Mr Stuart-Smith said the case should be considered on its own unique facts and denied that a court victory for West Brom would "open the floodgates" to similar claims against doctors by their patients' employers.
However, Stephen Miller QC, representing Mr El-Safty, argued Mr Appleton had been sent to him by the club's senior physiotherapist, Nick Worth, who had acted in his capacity as a "healthcare professional referring a patient".
He never considered that he had any contractual relationship with the club, and Mr Miller added: "As far as he was concerned, if there was a contract, it was between himself and Mr Appleton."
If the surgeon did have a contract with the club, it would have given rise to a "conflict of interest," Mr Miller said.
"The long-term interests of the player in making a full recovery might not have been the same as the short term interests of the club in having him playing matches," he added.
After Mr Appleton suffered his injury, he was referred to Mr El-Safty who carried out an operation in December 2001 to repair a torn cruciate ligament.
Mr Miller said although the operation had been "technically successful" - in that the tear was repaired - it led to continued problems with the knee joint that resulted in pain, swelling and discomfort.
Mr Appleton, a former Manchester United trainee, was just 27 when he retired from professional football due to the injury in 2003.
Mr Miller told the Appeal Court: "It has been admitted that it was negligent to have advised surgery at the outset".
But he said those admissions did not by themselves entitle West Brom to compensation as the club had to first prove that Mr El-Safty owed the club a contractual obligation or a "duty of care" recognised by the law of negligence.
Judgement is expected later.
