Traumatic Brain Injury: The Hidden Malpractice Risk

March 31, 2013

Traumatic brain injury claims can be brought years after an initial injury, so physicians need to take steps to identify, prevent, and follow through.

I always find it fascinating to look at data and see what is trending both nationally and within our own claims analysis. Recently, we’ve started noticing a new trend - not just in files - but also in court cases, and overall awareness; the rise in the number of traumatic brain injury (TBI) claims.

Part of the public interest in TBI stems from the increased attention such injuries are receiving because of the highly publicized cases of former National Football League stars. Many trace an array of illnesses ranging from neurological disorders to debilitating mental disorders to a severe head injury. There’s also increasing scrutiny on such injuries because of concerns over injuries to kids playing sports - from football to soccer. As a result, there’s been a concerted effort on identification, preventing, treatment and continuous follow-up.

And that effort is all very good. But we also need to look at TBI for other reasons. The insurance industry is taking note because settlement costs on such claims are incredibly high. According to industry resources, jury settlements for TBI can range between $10 million to 15 million and higher.

There are other reasons for concern. The CDC estimates that in the United States, on average, approximately 1.7 million people sustain a traumatic brain injury annually and there are currently 5.3 million individuals suffering from a traumatic brain injury that could have life-long implications. The highest rates of ER visits for TBI are in boys age 0 to age 4 years; the highest rates of hospitalization and death are in adults 75 and over. (These stats are interesting for a number of reasons, not the least of which is the current high-profile emphasis on sports-related TBI and the relatively lower level of effort focused on the very young and elderly).

But I digress; the really chilling part is that virtually any provider who treated a patient for a head injury could be at risk for involvement in a medical malpractice or disability claim if a medical condition, learning disability, neurological, psychological, or other problem is diagnosed even years later. So if you have a 30-year-old-patient, who fell off a bike at 12 and is now suffering from a neurological disorder an attorney traces back to a fall …you may be at risk.

And, because TBI involves complex issues, substantiating that you did not cause or contribute to the TBI issues as a medical professional is hard to prove. So, TBI medical-professional liability claims are difficult (and therefore expensive) to defend.

I’m saying this not to sound overly dramatic, but all of us (physicians in particular) need to become more aware of the basic TBI indicators. The CDC has a simple chart outlining the four primary symptom categories for TBI:

1. Thinking/remembering

2. Physical

3. Emotional/Mood

4. Sleep

We encourage our physician clients to familiarize themselves with this and any other chart that can help with identification of symptoms.

Much of what I have learned about TBI is from what I see through our physician clients’ eyes at the time of a claim.  If you have a patient that may be at risk of TBI, make sure you take every step to continue appropriate follow-up. Here are some other steps you should consider:

• Familiarize yourself and your staff with the clinical protocols for recognizing TBI

• Adapt a standard set of written protocols - based on accepted best practices - for identification and treatment

• Ensure proper and periodic follow up with patients at risk

• Inform other providers on your team and ask them to inform you of problems or unusual symptoms with at-risk patients

TBIs are a heartbreaking and growing concern. I for one am glad they are receiving increased attention. In the meantime, I hope we can find ways to encourage everyone in the healthcare community to ensure they are taking every step possible to help and to protect their patients who have suffered a brain injury now, and into the future.