When investigating a claim of multiple concussion injury or Second Impact Syndrome, the insurer should carefully evaluate the actions of the health provider, the patient, and any other party implicated in causing the patient’s head injury.
The insurer should look for the following “red flags” and consider how they impact the insurance coverage and the liability for payouts:
The Health Provider’s Failure to:
- Review the patient’s medical history including any athlete baseline testing
- Evaluate the patient completely
- Determine the diagnosis
- Provide the proper treatment
The Hospital’s Failure to:
- Monitor the patient for symptoms of concussion
- Follow protocols or mandated guidelines for head injuries
The Patient’s Failure to:
- Report all continuing symptoms of concussion
- Take any prescribed medication properly
- Follow a prescribed physical therapy regimen
- Avoid harm (Example: patient returned to playing contact sports before cleared by physician)
Review of the Liability Coverages
- The insurer must carefully review and understand the coverages, considering the duty to defend the physician-defendant or other defendant, exclusions, and non-covered conduct.
- The insurer should evaluate whether all required notices were provided to it on a timely basis.
See: Attorneys Medical Advisor, Concussion §§ 36:56 to 36:70; Traumatic Brain Injuries, 72 Proof of Facts 3d 363; Litigating Sports Injury Cases, 114 Am. Jur. Trials 269.