Growing up a rabid football fan, Mr. B dreamed of becoming a coach. But like many childhood aspirations, this one faded with time. His love of athletics remained, however, and he went on to study sports medicine as an undergraduate. After completing physician assistant school, Mr. B was able to combine his passion for the gridiron with his training as a clinician. A professional football organization looking for a “physician extender” hired him to work with the team doctor. Mr. B’s dream job soon turned disastrous when a player who suffered a concussion filed a malpractice suit to try to salvage a ruined career.

The patient was a linebacker known for the vicious hits he delivered on opposing players. These collisions frequently included helmet-to-helmet contact, leading to a number of minor concussions, none of which had resulted in any permanent damage. Mr. B was asked to check the player before every game, especially if he had suffered a concussion the week before.

During the final practice game before the season opener, the patient suffered a heavy blow to the head. The players’ helmets met with great force, and Mr. B’s patient was knocked unconscious for nearly 20 seconds. He was helped off the field and taken to the team’s training room to be examined by the medical staff. Mr. B’s supervising physician diagnosed concussion and recommended that the patient not practice for one week. The player was given permission to participate in the season opener as long as he passed Mr. B’s pregame exam.

After being cleared for the game, the player was knocked unconscious and carried off the field again. He was taken to the ER and held for observation. A neurologist diagnosed severe concussion and advised him to retire from football to prevent more permanent neurologic damage. Even before he could make a decision, the player was cut from the team. Given his history of injury, it was not surprising that no other organization picked him up. His football career was over.

The player consulted a plaintiff’s lawyer to look into recovering the remaining two years of income from his three-year contract, as well as damages for pain and suffering. Well aware of the high-profile nature of a case featuring a football star cut down in the prime of his career, the plaintiff’s lawyer filed a malpractice suit against Mr. B and his supervising physician.

The plaintiff delivered his deposition first. He described each of his head injuries and explained that his hopes of financial security had been dashed because of the negligence of Mr. B and the rest of the team’s medical staff. When asked what physical evaluations had been performed before the opening game of the season, he answered, “None at all. Mr. B just kept asking me if I felt all right.” Mr. B was shocked. He had spoken at length with the plaintiff and observed him carefully throughout the entire period. Mr. B was confident that he would have picked up on any neurologic dysfunction indicating unhealed microhemorrhages in the brain.

During his deposition, the plaintiff’s lawyer grilled Mr. B on his experience with head injuries and his ability to detect subtle changes by merely speaking with a patient. The team physician supported Mr. B’s assertions of competence. Conversely, the plaintiff’s expert neurologist stated that Mr. B was not qualified to make such vital assessments and that the supervising physician should have been the one responsible for examining the player for signs of residual damage. The defense decided to forgo settlement (the plaintiff had asked for $2 million) and take the case to trial.

At trial, the plaintiff told jurors that he blamed the demise of his career on the team physician and Mr. B. The plaintiff’s experts argued that the career-ending injury would have been prevented if the player had been given a full neurologic exam prior to the game.

Defense experts argued that the player had recovered from the first head injury and that Mr. B’s informal exam was sufficient to rule out residual head injury before the next game. Mr. B described how his apparently casual observation of the player could be considered a comprehensive neurologic exam used to assess the player for residual effects of prior head injury. He was cross-examined by the plaintiff’s lawyer regarding his qualifications and neurologic experience (which was admittedly slight). His supervising physician testified that the plaintiff’s head injury from the prior week had healed completely and that the event which ended his career had been a new injury. The jury deliberated for eight hours and returned with a $1.5-million judgment in favor of the plaintiff.

Legal background

Juries are made up of individuals with biases and prejudices who often sympathize with a perceived underdog or local hero. The jury in this case identified with a local athlete whose difficult childhood had been balanced by a chance at superstardom. The most persuasive evidence was not the medical facts but the personal testimony of the plaintiff, whose livelihood was destroyed by multiple head injuries.

Damages in medical cases can be difficult to measure. The jury calculated the damages as the maximum amount the player could have earned under his present three-year contract. This rough estimation failed to consider that many professional athletes are forced out of competition for reasons other than injury (e.g., poor performance, contract disputes). In many malpractice cases, once the question of liability is determined, jurors will look at alleged damages with one eye closed and allow the plaintiff’s lawyer to claim large amounts on very slender evidence. Studies show that damages in malpractice cases are significantly larger than those in nonmedical events (e.g., car accidents) with similar injuries.

Risk-management principles

Certain situations present a high risk of an unexpected adverse outcome and should be treated accordingly. Head injuries, especially recurring head injuries in athletes, are particularly risky. Athletes with concussion, even if asymptomatic, should be approached vigilantly and referred for neurologic opinion and further testing before being cleared to resume play. This can be difficult because of the considerable pressure placed on medical personnel to get the player back on the field as soon as possible. Of course, if the player is injured again, the clinician is blamed for releasing the player prematurely.

A patient with chronic headaches presents a challenge. Since a very small percentage of chronic headaches involve such unexpected causes as aneurysm or brain tumors, they represent a slight but serious litigation risk. Clinicians should be alert for changes in the location, type, frequency, and severity of symptoms. Some providers advise patients with chronic stable headaches to undergo periodic review by a specialist, but this depends on the individual’s willingness, resources, and insurance coverage.