How Can Sports Medicine Providers Protect Against the Risk of Concussion Injury Lawsuits?
In recent years, the media has been covering sport-related concussions as never before, focusing on how subsequent more serious injuries, such as subdural hematomas, could or should have been averted. Health care professionals are on the front line of managing these complex injuries and must be more informed than ever before. The number of sport-related injuries continues to increase at the high school, collegiate, and professional levels. At the same time, the number of lawsuits being filed against sports medicine personnel alleging failures to meet the appropriate standard of care also continues to rise. The growing popularity of these cases appears attributable to the growth in knowledge about the frequency of concussions and other more serious sport-related injuries, as well as the highly-publicized nature of sports injuries.
In our litigious society, doctors and other health care professionals have become popular targets of lawsuits alleging failures to meet the standard of care. In fact, certain plaintiffs’ law firms are now specifically targeting these matters. Team physicians and athletic trainers often have the closest contact with a team’s players; thus, they are the ones primarily responsible for protecting their players’ health and well-being. Whenever an unfortunate incident occurs on the field, the actions or inactions of these and other health care providers are likely to be questioned, second-guessed or even directly blamed. Health care professionals in these cases may face allegations that include improper evaluation and testing of the athlete, flawed or incomplete documentation of the athlete’s injuries, mistaken or misunderstood communications with the athlete, and a failure to warn or educate the athlete.
Defending a health care professional’s conduct against a plaintiff’s allegations can be especially challenging under difficult fact situations. In some actions, a jury may have to struggle with a complex medical or scientific theory regarding the cause of the player’s injury, such as Second Impact Syndrome. In others, the player’s injuries may be so severe that juror sympathy could outweigh a more objective assessment of the facts. In such cases, jurors who are ambivalent about whether a defendant met the standard of care may return a verdict for the plaintiff simply to avoid having to confront other, sometimes even harder, issues.
Health care professionals can minimize the risk of becoming a defendant in a legal action following a sport-related injury. Prudence dictates that they take the most conservative approach in managing sports injuries. Such an approach, which also will help health care professionals better defend themselves in the event a case is filed against them, includes:
- Developing, implementing, and following proper policies, guidelines, and procedures
- Conducting appropriate testing, including pre-season baseline testing in all contact or collision sports
- Maintaining complete, accurate documentation of injuries and follow-up care, including return-to-play decisions
- Requiring physician supervision
- Encouraging clear athlete communication
- Continuing education on the risks – and potential consequences – of injury
Steve Pachman is a Partner in the Litigation Department of the Philadelphia, Pennsylvania-based law firm Montgomery McCracken and recently represented a university, an athletic trainer, and others in a high-profile, nationally-publicized lawsuit involving a catastrophically-injured football player who allegedly sustained a concussion and Second Impact Syndrome. Steve regularly advises doctors, athletic trainers, and other health care professionals on liability issues concerning sport-related concussions and other sports’ injuries. Steve is a frequent speaker on legal matters concerning the proper management of sport-related injuries, and has authored a number of articles on the specific topic of how health care professionals can minimize their risk of legal liability for sport-related injuries. Steve’s comments and opinions on related issues have been published by various news magazines and newspapers across the country.