Will Guidelines for the Evaluation of Head Injury Establish a Standard of Care?

By: Daniel L. Freidlin and Ryan T. Cox
Monday, January 11, 2016

Sports medicine is a subspecialty encompassing the evaluation, treatment and prevention of injuries related to sports and exercise.

Although it is not recognized by the American Board of Medical Specialties as a distinct specialty, subspecialty certificates may be obtained by practicing physicians from their underlying board. Professional, collegiate and high school teams often hire these subspecialists to evaluate and treat their athletes.

Recently, well-publicized sports-related injuries involving ephedra use, heat stroke and clearance of players for return to play have led to increased scrutiny of the care rendered. With this increased scrutiny came increased litigation instituted by current and former athletes. And as the earnings potential of the professional and aspiring professional athlete will continue to soar, the exposure for treating physicians will similarly rise.

An emerging trend in the practice of sports medicine litigation involves the evaluation of head trauma. A recent study estimated that up to 3 million sports-related concussions occur annually in the United States. The incidence may be even higher, as many injuries go unreported.1

Recent class-action lawsuits initiated by retired NFL players have brought a heightened awareness to the short- and long-term consequences of head injuries. This national spotlight caused an increase in the resources devoted to the study of concussions, as well as enactment of federal, state and associational protocols for the evaluation and management of head trauma. As new information emerges, so too may the standard of care for evaluation and treatment of head injury.

In medical negligence litigation, the plaintiff has the burden of demonstrating that the defendant breached his/her duty of care to the patient. Expert testimony is required to establish that a deviation from applicable standards of care in the medical field caused injury to the patient, and these standards may vary from specialty to specialty. Generally, the plaintiff’s medical expert will rely upon his/her education, training and experience to demonstrate that there was a departure from the applicable standard of care. However, the plaintiff’s attorney may also attempt to cite medical literature and applicable protocols to persuade a lay jury that the defendant physician acted negligently.

Whether the medical literature is admissible evidence at trial will depend upon whether the case is brought in federal or state court, and in some jurisdictions, whether the defendant physician acknowledges the literature as authoritative. With respect to the use of guidelines, the overwhelming majority of courts have held that failure to follow established protocols does not in and of itself constitute a departure from the standard of care without expert testimony supportive of a deviation. However, most courts will generally permit the protocol to be admitted into evidence for the jury’s consideration in deciding whether the defendant physician conformed to generally accepted standards of medical practice. A defendant’s failure to follow an established guideline is powerful evidence used by the plaintiff’s attorney to sway the jury in his/her client’s favor and is difficult to overcome.

As protocols and standards related to the evaluation of head injury continue to evolve, it is important that team physicians continue to stay abreast of current developments and literature, as well as the team, association or other applicable guidelines. Further, it is critical to remember that while a team physician has a responsibility to both his employer and the player, the inherent potential for a conflict of interest must be resolved in the favor of the patient to whom the duty of care is owed.

Daniel L. Freidlin is a Partner at Martin Clearwater & Bell LLP. He focuses his practice on the defense of physicians, hospitals and medical centers in medical malpractice actions. Ryan T. Cox is an Associate at the firm. His practice encompasses all aspects of medical malpractice defense. For more information, visit mcblaw.com.