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‘Standard of Care’ Laws May Not Dissuade Sport Concussion Lawsuits

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Standards of care regarding concussion management may vary among the states, health care attorneys told Neurology Today, leaving health care providers subject to legal liability. But they and other sports concussion experts stress the importance of adhering to evidence-based guidelines for managing care.

Although considerable progress has been made in the past decade toward reducing the risk of neurocognitive injury from sports-related concussive and subconcussive head impacts, concussion management plans alone may not fully protect physicians and other health care personnel from the legal risks associated with such sports-related head injuries, an attorney told attendees at the AAN 2019 Sports Concussion Conference in late July.

While all 50 states mandate some degree of sideline medical evaluation and subsequent management before an injured player can return to play or practice, the legal exposure of those providing such care and making such decisions remains less certain due to the ever-evolving standard of care, said Dylan Henry, an attorney with the law firm of Montgomery McCracken Walker & Rhoads, in Philadelphia.

He and his partner, Steven Pachman, have represented individuals and school systems in lawsuits filed against coaches, athletic trainers, and health professionals stemming from alleged premature return-to-play decisions and other negligence theories at the professional, collegiate, and high school levels, and they have also counselled those individuals and institutions on how to mitigate their legal risks before such lawsuits are filed.

In such litigation, Henry explained, legal liability primarily rests on whether a defendant is deemed to have breached the “standard of care” in responding to such injuries and whether that breach was the legal and factual cause of the harm alleged. Yet despite position papers and consensus statements from a number of professional medical organizations, including the AAN, the “standard of care” is often difficult to define, Henry said.

“Many of the holes that had existed for years [in concussion management plans] were plugged in 2017 when the Concussion Management Protocol was issued by the National Collegiate Athletic Association (NCAA). But there really isn't a universally accepted definition for the standard of care; it remains in flux,” Henry told Neurology Today.

The “standard of care” issue is at the heart of many sports-related head injury cases, and it continues to be the focus in these cases because of recent legal decisions and medical research developments, he said.

Standards for athletic trainers and other health care professionals vary and change depending on emerging legal decisions and new guidelines from athletic conferences and medical organizations focused on the issue, both domestic and international. Moreover, efforts to ensure that sport concussion and head injury plans cover all contingencies can make such protocols too complicated, said Pachman.

“The more detailed the requirements, the greater the potential risk of error,” he said. “All the i's must be dotted and all the t's crossed, or else there can be trouble. Also, many ‘standards of care’ overlap, so it can be tricky for health care providers. But in the event of a catastrophic outcome, it is necessary to demonstrate that a defendant's protocol complies with state laws as well as standards of the school, sports organizations, and medical groups like the AAN.”

Update Concussion Management Plans

Concussion management plans must also be closely monitored to keep pace with new research and regularly re-evaluated to ensure they are up-to-date, the attorneys said. Plans should reflect the most up-to-date research on diagnosing and treating concussions, and, more importantly, be carefully reviewed and followed by all involved, said Henry, who added that this is just as true for high-school athletic programs as it is for college-level and professional athletes.

Because standards of care are evolving so rapidly, it is conceivable that someone could sue for damages in the future if previous standards are considered outdated or incorrect, said Pachman. The best defense is to have a written concussion management plan and to audit it every year, he advised. In such lawsuits, as with any malpractice claim, plaintiffs must prove negligence in four domains—duty, breach, causation, and damages.

It is also important to recognize that certain research has shown evidence of long-term problems caused by subconcussive impacts purportedly leading to the development of chronic traumatic encephalopathy (CTE). Emerging theories about second-impact syndrome and post-concussion syndrome need also be considered— theories that the brain is more vulnerable and susceptible to subsequent injury after a concussion or repeated subconcussive events.

The utility of baseline neurocognitive and neuropsychological testing, although recommended and/or required by many state laws and professional medical organizations, is another controversial area, the attorneys noted.

Legal Challenges

Staying on top of changes in concussion research, legal theories, and obligations can be difficult, Henry said, a situation made even more difficult by the fact that there is a paucity of legal precedent. Only a handful of lawsuits have reached jury determination of any award. Most cases, none of which have involved neurologists, have been settled beforehand.

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“The more detailed the requirements, the greater the potential risk of error. All the is must be dotted and all the ts crossed, or else there can be trouble. Also, many ‘standards of care’ overlap, so it can be tricky for health care providers. But in the event of a catastrophic outcome, it is necessary to demonstrate that a defendants protocol complies with state laws as well as standards of the school, sports organizations, and medical groups like the AAN.”—STEVEN PACHMAN

One case in point was a 2017 lawsuit filed in the death of University of Texas football player Greg Ploetz. The case was widely followed and expected to have been a bellwether case, the first to reach a jury, but it was settled after three days in court. A jury decision in favor of Ploetz's widow would have exposed the National Collegiate Athletic Association (NCAA) and other groups to an avalanche of sports concussion cases, he noted.

Another example was a $7.1 million settlement in a longstanding Southern California case of a high school student who claimed to have suffered permanent brain injury when his coaches failed to recognize “clear and obvious” signs of a concussion and returned him to play.

The number of class action lawsuits filed against the NCAA by former college football players is rapidly increasing, with as many as 200 new lawsuits expected this year alone. Former players are alleging that the organization was aware of concussion risks, especially long-term risks, decades before it put into place protective measures in 2010.

On August 12, a federal judge approved a settlement with the NCAA that will put in place a 50-year concussion-related medical monitoring program for all collegiate athletes. The Adrian Arrington case was consolidated with other claims and an initial settlement was reached in 2016 creating a $70 million fund for monitoring of current and former college athletes for brain injuries and $5 million for research. The settlement did not however award any damages to the former players.

None of these cases involved neurologists, Henry said. But the point is that neurologists as well as any other health care providers who make assessments and return-to-play decisions must ensure that their concussion management plans are up to date and they are adhering to evidence-based care.

‘No Gold Standard’

Last January, the American Medical Society for Sports Medicine released an update to its 2013 position statement for medical professionals, notably emphasizing the need for multi-modal diagnosis, the trend toward more active management of concussion and the evidence supporting it, as well as clinical profiles and areas for future research.

“The absence of definitive outcomes-based data is challenging and requires relying on the best available evidence integrated with clinical experience and patient values,” according to the statement.

“I think CTE cases are where the rubber meets the road,” said Henry. “Standards of detection and care are evolving, but further complicating the matter is that I'm not aware of any case where a judge or a jury has awarded a verdict in a CTE case.”

Equally important was a 2016 settlement involving the death of Derek Sheely, who collapsed and died in 2011 from an alleged traumatic head injury during football practice at Frostburg State University in Maryland. The settlement was between his parents, the school, the NCAA, and individuals employed by Frostburg, including their head athletica trainer, he added.

“There's no gold standard because things are always changing. Right now, it's like the wild-wild west. We counsel our clients to ‘control what you can control.’ Assuming a management plan is up-to-date, it's best to understand and closely follow the plan to ensure it regularly audited and updated.”

Follow the Guidelines

Javier Cárdenas, MD, FAAN, director of the Barrow Concussion and Brain Injury Center at St. Joseph's Hospital and Medical Center in Phoenix, AZ, attended Henry's presentation at the recent AAN conference. He told Neurology Today that concussion guidelines and position statements, including the AAN's, were not developed for legal purposes.

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“The guidelines were never intended for lawsuits or to be legal standards of care; they are simply best practice guidelines for physicians. There is no uniformly accepted standard of care, and some consensus statements and guidelines do not address or even include neurological issues. Its a lot more challenging than many people think.”—DR. JAVIER CARDENAS

Figure

“Many of the holes that had existed for years [in concussion management plans] were plugged in 2017 when the Concussion Management Protocol was issued by the National Collegiate Athletic Association. But there really isnt a universally accepted definition for the standard of care; it remains in flux.”—DYLAN HENRY

“We are head and shoulders beyond where we were just a decade ago in every aspect of concussion prevention, diagnosis, and care.”

—DR. TAD D. SEIFERT

“The guidelines were never intended for lawsuits or to be legal standards of care; they are simply best practice guidelines for physicians,” he said. “There is no uniformly accepted standard of care, and some consensus statements and guidelines do not address or even include neurological issues. It's a lot more challenging than many people think.”

Most state concussion laws include education, removal from play, and return to play provisions, and these are where states differ the most, he explained.

There is also a lot of variability between states in who, where, and how such head injuries must be evaluated before a student is cleared after a concussion or suspected concussion. Also, graduated return-to-play recommendations are included in some guidelines, but are not always clearly defined in state laws.

He also cautioned that if injury evaluations are “take-home assignments,” it is important that they are validated, noting that there is always the risk that someone other than the injured student will take the test, “a sibling or parent who wants their kid back in the game.”

Finally, he told Neurology Today that while baseline concussion neurocognitive testing and evaluations are becoming a big issue in sport concussions, they can actually increase liability risk, no matter how well-intentioned, if they are performed poorly or documented incorrectly.

“I tell people to be wary of state-mandated cognitive testing, especially baseline tests. Also, if a student athlete is flagged and not re-evaluated, or if testing results are later invalidated, there can be problems.”

Another potential problem involves parents who are physicians or health care professionals who volunteer to evaluate injuries, yet have not undergone head injury training, according to Dr. Cárdenas.

“For example, say an Ob/Gyn steps forward to be a concussion monitor. They might have confidence in their ability to identify a concussion, but may not be up to date on testing or research. This is because concussion laws designating who is ‘qualified’ to perform field evaluations varies from state to state.”

With regard to CTEs and subconcussive or secondary impact syndrome, he said protective and preventive changes in professional guidelines and some state laws are welcome despite the current lack of supportive research.

“For students and other athletes who are exposed repeatedly to head impact we still have to see what the research will show.”

Tad D. Seifert, MD, clinical assistant professor of neurology at the University of Kentucky and director of the sports concussion program at Norton Healthcare, heads the NCAA Headache Task Force. Concussion guidelines like the AAN's have certainly made things better, Dr. Seifert said.

“We are head and shoulders beyond where we were just a decade ago in every aspect of concussion prevention, diagnosis, and care,” he told Neurology Today.

He also pointed to the 2017 Berlin Statement on Concussion in Sport, a non-binding document developed for physicians and health care providers involved in athlete care, whether at a recreational, elite, or professional level.

“The various consensus statements and position papers, including the 2017 Berlin consensus, have helped put concussion awareness, prevention, and care on more solid footing, but none are bullet-proof when it comes to lawsuits,” he said.

“Each state has a mandated standard of care, but there are differences between them—including who evaluates and clears injured athletes to return to the field—but I still don't think the job of counseling has progressed far enough. Most is focused on immediate risk rather than potential long-term problems like second-impact syndrome, CTE, and subconcussive impacts, symptoms of which may not appear for years or even decades after an athlete has stopped playing sports. Many of them, their loved ones, and others, are caught off guard by long-term recovery difficulties.”

Link Up for More Information

• Giza CC, Kutcher JS, Ashwal S, et al. Summary of evidence-based guideline update: Evaluation and management of concussion in sports: Report of the Guideline Development Subcommittee of the American Academy of Neurology https://n.neurology.org/content/neurology/early/2013/03/15/WNL.0b013e31828d57dd.full.pdf. Neurology 2013;80(24): 2250–2257.
    • Harmon KG, Clugston JR, Dec K, et al. American Medical Society for Sports Medicine position statement on concussion in sport https://bjsm.bmj.com/content/47/1/15. Br J Sports Med 2019;53(4):213–225.
      • McCrory P, Meeuwisse W, Dvorak J, et al. Consensus statement on concussion in sport—The 5th International Conference on Concussion in Sport in Berlin, October 2016 https://bjsm.bmj.com/content/53/4/213. Br J Sports Med 2017;51(11):838–847.