Issue: November 2018
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Migraine Litigation Risks: Liability Headaches

Introduction

Migraine Liability Risks

Migraine is a neurological disease that affects more than 39 million Americans. Almost a quarter of U.S. households have a migraine sufferer. Annually, approximately one million visits to hospital emergency departments are made for acute migraine attacks. 

 

Lost employee productivity and healthcare costs associated with migraine are estimated to be as much as $36 billion annually. Employers may lose an estimated 113 million work days because of employee migraine.

 

It has been noted that “[v]erdicts in headache cases can exceed a million dollars,” which may, in part, be the result of physician testimony that there is no expectation that the plaintiff will get relief from the headaches in the future.

 

Attorneys, physicians, hospitals, risk managers, insurers, employers, and other potential parties to litigation need to understand the types of litigation issues that may arise in connection with an injury related to migraine.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for a claim involving a migraine-related injury? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for a migraine-related injury? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for a migraine-related injury? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer be subject to liability for an employee’s migraine headaches or a related injury? And, what is a potential strategy for the employer to use?

Risk Managers:

Can a risk manager prevent liability or mitigate damages related to an employee or patient’s migraine headaches or a related injury? And, what is a potential strategy for the risk manager to use?


Practice the Technique: Checklists

Attorneys:

Check this list of facts and circumstances tending to show a provider’s liability for migraine-related malpractice or negligence.

Physicians:

Presented is a checklist of items a physician must consider when defending against claims of migraine-related malpractice or negligence.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of migraine-related malpractice or negligence.

Employers:

Presented is a checklist of items an employer must consider when determining if the employee’s injury related to migraine is compensable.

Risk Managers:

Use this checklist to determine if the risk manager has identified and implemented all appropriate policies, practices, and procedures to avoid liability or mitigate damages related to migraine-related malpractice or negligence and whether all affected parties complied with these policies, practices, and procedures.

Expert Analysis

What Are Recent Advances in Migraine Treatment?

Mark W. Green, MD, FAAN

Is There a Link Between Migraine and Stroke?

Linda McGillicuddy

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, may be mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer and risk manager would want to reach settlement, and not take the action to trial.


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, or employer and risk manager would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in cases involving injuries related to migraine headaches?



Medical Examples

Migraine

This section provides detailed medical information on migraine, the causes and triggers, the types of migraines, migraine onset, stages, and symptoms, migraine diagnosis including the differential diagnosis, and testing, treatment, and complications. Also discussed is the patient’s prognosis and ability to work.



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on migraine headache and medical malpractice or negligence.


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Migraine Litigation Risks: Liability Headaches

Table of Contents
Introduction

Expert Analysis
   Mark W. Green, MD, FAAN
   Linda McGillicuddy

The Perspectives: Improve Your Strategy
   Attorneys Perspective
   Physicians and Health Providers Perspective
   Insurers Perspective
   Employers Perspective
   Risk Managers Perspective

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist
   Risk Manager Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Migraine

Law and Medicine Resources