Sports physicians adopt new concussion protocols to avoid medical malpractice liability

Image Source, Medical Daily: Health Care In The NFL: Are Football Players' Medical Needs Being Met?
Image Source, Medical Daily: Health Care In The NFL: Are Football Players’ Medical Needs Being Met?

Traumatic brain injuries are increasingly known to lead to significant long-term damages to athletes. The NFL concussion lawsuits highlighted the need for research, awareness and new protocols to reduce and prevent the incidence of brain trauma. The medical community, in connection with the legal and media communities, is developing new protocols and medical standards for the prevention and treatment of concussions. Sports medicine professionals leading safety and treatment initiatives are helping physicians better treat brain injury patients and as new protocols are adopted, the standards for medical practice and malpractice are changing. To avoid negligence claims, sports and general physicians are adapting to the new standards for care and treatment of concussion patients, on and off the field.

Sports medicine generally includes athletic team doctors and trainers who can now conduct baseline testing for athletes to better measure concussion symptoms. Medical professionals also use new and better protocols and treatment plans to ensure their patients are recovered from and at decreased risk of future problems in connection with head trauma. If concussion symptoms and ailments are not properly managed, the long-term results to the injured can include permanent physical and mental damage, leading to death in some cases, as the world witnessed with the untimely suicides of well-known former professional athletes.[i]

Physicians have a legal duty to practice medicine by the standards set in the local medical community.

No physicians want to receive a medical malpractice claim or be listed as a named defendant in a civil lawsuit for money damages. Insurance rates can rise, state medical licensing boards can get involved, and a career and reputation can suffer from a medical malpractice case.

Physicians are held to a legal duty to practice medicine with a standard of care established in their medical community. Doctors in major cities like Chicago, with access to the best research, facilities and staff have a different standard of care than a doctor practicing medicine in a small rural area with less available resources. The standard of care is also a function of specialty practice areas. While sports medicine is not a specifically recognized by the American Board of Medical Specialties, a doctor who treats athletes can be held to the same standard as like-kind doctors routinely treating athlete patients.

Adopting new protocols and standards of care are necessary to prevent medical negligence and malpractice claims.

A plaintiff’s attorney suing a doctor for malpractice will likely assert the highest possible standards of care and argue that the doctor failed to meet their legal duty to render healthcare services consistent with that highest standard of care. For example, if a doctor practices sports medicine, they are expected to adopt and use the latest and best protocols for treating concussion victims. Plaintiff attorneys use investigators and experts who testify in court to sway a jury to adopt and apply the standards of care to the doctor on trial, arguing the doctor failed to meet their legal duty to meet those standards.

The defense attorney’s position is to argue that the doctor accused of malpractice, did indeed practice medicine to the standards required of them in their local medical community. The prevalence of new protocols for the treatment of brain injuries, for example, might be new and complex, and not yet adopted across the board in the local area in which the defendant physician practices. As new protocols and standards for medical care are published in medical journals and as they become the subject of lectures and continuing education, they become more accepted in the determination of what the doctor’s standard of care and duty to practice.

Michael V. Favia and the Illinois Professional Licensing Consultants work with physicians and the prosecution and defense of various legal matters including malpractice, licensing and regulation.

With many years of experience in health law and litigation, Michael V. Favia is a sought after lawyer asked frequently to co-counsel on both sides of medical malpractice suits, for both prosecution and defense of those claims. A major consideration for any physician facing a medical malpractice claim is the potential for ancillary problems in the event a case is settled or resolved against the doctor’s interests. For example, a medical malpractice settlement, which will be reported to the National Practitioner Databank, can lead to state medical board investigations and physician discipline.

Insofar as traumatic brain injuries are concerned, physicians who practice medicine and work with concussion patients are well advised to seek and find the research and findings associated with new brain injury treatment and protocols for care, as they may be held to a high standard.

Michael V. Favia & Associates are available to advise and represent physicians with a variety of legal issues. With offices conveniently located in the Chicago Loop, Northwest side and suburbs, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates’ professional licensing work, please visit and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.

[i] PBS, New: 87 Deceased NFL Players Test Positive for Brain Disease, by Jason Breslow, Sept. 18, 2015. “87 out of 91 former NFL players have tested positive for the brain disease at the center of the debate over concussions in football, according to new figures from the nation’s largest brain bank focused on the study of traumatic head injury.”