What proof is needed for a lawsuit involving multiple concussion injury? And, what is a potential strategy for the attorney to employ?
The attorney representing the victim of a multiple concussion injury may need to consider a number of potential theories of liability, including negligence, medical malpractice, products liability, workers compensation and intentional torts. Under all of these theories, however, to be successful the attorney will need to prove the extent of damages attributable to the multiple concussions.
For an action based on negligence or medical malpractice, the attorney will have to present evidence of the prima facie elements of the cause of action, beginning with the legal duty owed by the defendant to the plaintiff and ending with damages.
The defendant’s duty – and the standard of care used to measure this duty – will vary depending on the relationship between the parties and any special qualifications of the defendant. For example, the standard of care owed by a physician to a patient generally is to use reasonable care and skill in diagnosis and treatment, but the physician will be held to the standard of care and skill of the average practitioner of the medical specialty in question, taking into account advances in the profession, or the state of the medical profession at the time. See: 61 Am. Jur. 2d, Physicians, Surgeons, Etc., § 189. The standard of care owed by a high school coach to an athlete typically is to act as a reasonably prudent person would act under similar circumstances, but a defendant who has special skills, training, knowledge or experience may be held to the higher standard of a person with the same specialized skills, training, etc. See: Traumatic Brain Injuries, 72 Proof of Facts 3d 363, § 13.
In a Nebraska case involving a high school football player who received a head injury during a football game but was allowed to return to play later in the game, and to participate in contact practice several days later, the court found that the high school football coaches were required to meet the standard of a reasonably prudent person holding a state teaching certificate with a coaching endorsement. This standard, at the time of the injury, required the coach to (1) be familiar with the features of a concussion, (2) evaluate an athlete who appeared to have suffered a head injury for symptoms of concussion, (3) repeat the evaluation at intervals before permitting the athlete to return to play, and (4) make a determination, based on the evaluations, of how serious the injury was and whether the athlete should be allowed to return to play or should be removed from all contact pending a medical examination. See: Cerny v. Cedar Bluffs Junior/Senior Public School, 262 Neb. 66 (Neb. Jun 29, 2001), appeal after new trial, 267 Neb. 958 (Neb. May 07, 2004).
Proving damages for multiple concussion injury can be more challenging than expected. Victims of these injuries may not develop symptoms immediately; some symptoms of brain injury manifest over a long period of time. See: Presenting Plaintiff’s Medical Proof-Common Injuries and Conditions, 6 Am. Jur. Trials 1 § 12. In situations of cumulative damage from multiple concussions, it may be difficult to prove that the symptoms were caused by a specific injury or series of injuries, particularly for plaintiffs who may have participated in injury-prone activities over extended periods of times, such as athletes or members of the military. See: Presentation and Proof of Damages in Personal Injury Litigation, 59 Am. Jur. Trials 395; Predicting Personal Injury Verdicts and Damages, 6 Am. Jur. Trials 963.
Damages from multiple concussion injury may include, but are not limited to: (1) reasonable and necessary medical expenses (past and future); (2) lost earnings (past and future); (3) physical pain and suffering (past and future); (4) mental pain and suffering (past and future); (5) loss of enjoyment of life; and (6) legal fees and costs. See: Am. Jur. 2d, Damages, §§ 1 to 833; Determining the Medical and Emotional Bases for Damages,109 Am. Jur. Trials 161. Counsel should expect to present expert testimony on most, if not all, of the types of damages, including both medical and economic experts. See: Selecting and Preparing Expert Witnesses, 2 Am. Jur. Trials 293.
For counsel to be successful in litigation involving multiple concussion injury, investigation of the facts and circumstances must be conducted and proof must be presented of:
- the legal duty owed to the defendant by the plaintiff;
- the standard of care that applied;
- a breach of the defendant’s duty to use appropriate care;
- a causal relationship between the breach and the plaintiff’s injuries (i.e., proximate cause); and
- the damages caused by the injury
See Practice the Techniques - Checklists providing an example fact checklist tending to show an athletic trainer’s liability for multiple concussion injury.