How can liability for medical malpractice be avoided for multiple concussion injury? And, what is a potential strategy for the physician to employ?
Proof that a high standard of care was provided by the health care provider may avoid liability. Alternatively, the health care provider may be able to show that its negligence was not a proximate cause of the patient’s injury.
All the standard elements for a medical malpractice action must be present for a physician or other health care provider to be found liable for malpractice in a situation involving multiple concussions. See: Malpractice: diagnosis and treatment of brain injuries, diseases, or conditions, 29 A.L.R.2d 501.
In particular, causation is an issue that must be proven for malpractice to be found. The plaintiff may need to demonstrate that no other cause, such as Alzheimer’s disease, resulted in the plaintiff’s medical problems. See: Daniel J. Kain, “It's Just a Concussion:” The National Football League's Denial of a Causal Link Between Multiple Concussions and Later-Life Cognitive Decline, 40 Rutgers L.J. 697 (2009).
Although health care providers were found to be negligent in not accurately diagnosing a child who suffered a head injury in a fall, when they treated him for concussion but failed to discover that he had suffered a fractured skull, the court found that their negligence was not a proximate cause of the injuries the child sustained as a result of the fall. Gregory v. Cortland Memorial Hosp., 21 A.D.3d 1305 (N.Y.A.D. 4 Dept Sep 30, 2005).
For the physician or other health provider to be successful in litigation involving multiple concussion injury, and avoid malpractice, proof must be presented that:
- The health provider provided a high standard of care
- The health provider did not breach the standard of care
- Even if the physician or other health provider breached the standard of care in evaluating and/or treating the patient’s head injury, the health provider’s actions were not a proximate cause of the multiple concussion injury
- Alternatively, there was no health provider-patient relationship
See Practice the Techniques - Checklists providing an example fact checklist tending to show liability for multiple concussion injuries.