Category Archives: Concussion News

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? bit.ly/1RcAp3d

Image Source, Medical Daily: Health Care In The NFL: Are Football Players’ Medical Needs Being Met? bit.ly/1RcAp3d

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 www.IL-Licensing.com 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.”

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Representing injured plaintiffs in catastrophic injury cases involving common carriers, cruise ships

download (1)An Illinois man, James Hausman, recently won his catastrophic injury lawsuit against Holland America Line cruses after he suffered a traumatic brain injury on a cruise, when an automatic sliding-glass door closed on him, striking him in the head (Watch US News Video) in 2011. The federal jury in Seattle awarded $21.5 million in damages after a nine-day trial where attorneys argued that dozens of other passengers were also injured by the same type of automatic doors on Holland’s cruise ship fleet, with arguably faulty sensors.[i] The jury verdict includes $16.5 million in punitive damages, punishing the defendants for failing to keep its ships safe and protect the safety of its passengers.

Michael V. Favia and QPWB law firm represent injured plaintiffs, including those injured on cruises.

In Chicago, Attorney Michael V. Favia represents injured plaintiffs who suffer traumatic brain injuries and all other types of injuries. Favia is a Chicago attorney licensed to practice in the State of Illinois, and he is an attorney of-counsel to Quintairos, Prieto, Wood & Boyer, P.A. (QPWB), a multi-state law firm with offices on both coasts, Panama City and on the U.S. Virgin Islands.  The QPWB website has a legal practice area section dedicated to Admiralty and Maritime Law cases involving cruise ships and catastrophic injury cases.

The plaintiff injured on the Holland America Line ship was treated for concussion on the ship. Further medical attention addressed a minor brain injury, the effects of which still challenge the injured man four years later. “”He still has trouble with things that would have been simple before,” said Hausman’s lawyer, Rick Friedman, adding that his client has sold his gold and precious-metals retail business.”[ii]

Common carriers, including cruise ships owe the highest legal duty of care to passengers and cargo.

A common carrier in the business of transporting cargo and people has a special legal duty owing the highest degree of care and diligence in the safety of cargo and passengers. Cruise ships are common carriers according to Section 3(6) of the Shipping Act of 1984[iii]. Cruise ships must warn passengers about potentially dangerous conditions. Failure to warn passengers of dangerous conditions is negligent and the common carrier is liable for injuries when it knew or should have known about the dangerous condition, and did not do anything to warn or protect passengers. In this case, attorneys for the plaintiff identified dozens of passengers who were similarly injured by Holland America Line’s automatic sliding-glass doors with faulty sensors.

Punitive damages are awarded in cases where a court finds punitive damages a proper punishment to deter a defendant from continuing similar outrageous conduct. Punitive damages punish conduct that is in bad faith, fraudulent, wanton and reckless. $16.5 million is the court’s award to James Hausman, sending a clear message to Holland America Line cruises that knowing their doors were dangerous and their failure to repair or warn passengers is unacceptable.

The law firm of Michael V. Favia & Associates, of counsel to the QPWB law firm, can hold common carriers to their duty to keep their passengers and cargo safe.

Unfortunately, it can come down to an economic decision, to make the repairs or risk paying out for a few injured passengers. In many cases in recent history, we hear about large companies saving huge amounts of money not making corrections, because it is less expensive to pay minor consequences. A large punitive damages award in the millions of dollars, however can rattle some cages where corporate decision makers are held responsible.

Michael V. Favia & Associates is a health law and injury litigation law firm. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, 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 FaviaLawFirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.

 

[i] US News and World Report, Man Wins $21.5 Million From Holland America, AP, Nov. 11, 2015.

[ii] See HNi above

[iii] 46 U.S.C. Sec.1702(6)

Baseline testing helps doctors assess concussions in youth sports

The baseline testing assesses cognitive functioning, reaction time, memory and how the subject processes information.

The baseline testing assesses cognitive functioning, reaction time, memory and how the subject processes information.

The parents of 10-year-olds have enough to worry about raising their kids, including the risk of traumatic brain injury if the children are involved in competitive contact sports. Hockey, soccer, football and basketball players have a risk of concussions. In hockey alone, there are chances a player will hit the wall, the ice or another player, which is a leading cause of traumatic brain injury. The plaintiff personal injury lawsuits filed by former NFL players increased the attention paid to athletes and injury, from the professional leagues to youth sports. While the 10-year-old hockey players are not hitting as hard as the high school students, it is important to educate and train both players and parents about concussions and their prevention and treatment.

A baseline test makes a record of healthy brain function and balance, before a concussion.

Among the education and prevention curriculum, baseline cognitive testing allows physicians to establish the normal brain function and balance testing in a healthy state. If a child suffers a head injury or significant impact, post-injury testing can be performed and the results can be compared against the baseline test, to help determine the level of injury, helping parents, coaches and physicians determine recovery protocol and assess how long a student athlete should be sidelined during the healing process.

The baseline testing assesses cognitive functioning, reaction time, memory and how the subject processes information. Conducting the same testing some time after the baseline testing allows physicians to measure any changes in immediate recall and accuracy in recalling information. When an individual suffers a traumatic brain injury, there is a measurable change in how fast the concussed individual thinks, remembers and can concentrate; the worse the injury the more profound the change.

Teaching children to recognize concussion symptoms increases the opportunity for proper treatment.

Interpretations of some studies lead researchers to believe that girls are more prone to concussions than boys playing the same sports. Some theories suggest that girls’ necks are not as strong which could lead to easier concussions, while others think girls might be more likely to report injuries and symptoms to doctors and nurses than the boys who don’t want to claim an injury.  It is important to teach children what to look for and what a concussion is. Kristen in Ohio, the parent of a 10-year-old hockey player shared her experience in educating her child, “I kind of explained it to him that your brain is in your head and if it hits real hard on a solid spot it’s shaking in there and that’s what causes the damage,” Kristin said[i].

The symptoms of concussions that young athletes, parents and coaches can be aware of include dizziness, headache, nausea, balance, fatigue and sensitivity to light and noise. Symptoms can be less prevalent immediately following major impact and can increase in severity in the time following the injury event. If there is a time delay between injury and noticing symptoms, there can be a disconnect between the symptoms and their underlying cause, if it indeed was a head injury, therefore awareness and education about traumatic brain injury is important.[ii]

Researching and identifying baseline testing opportunities is suggested to parents of young athletes.

In educating and working to prevent concussions, experts suggest young athletes brains be protected by proper fitting equipment, skills and form training, and the use of baseline testing. Some schools and athletic organizations offer baseline cognitive testing for young athletes. In the event, however, your child(ren)’s school or sports club does not offer baseline testing, many local doctors might be available to measure and track cognitive brain functioning in healthy children to measure against follow-up testing in the event of a sports injury where there might be a concussion.

Michael V. Favia & Associates is a health law and litigation law firm focused on helping educate and prevent concussion injuries as well as representing injured clients. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, 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 FaviaLawFirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.

[i] WBNS-10TV, Central Ohio, Baseline Testing: Critical Part of Concussion Care, by Tracy Townsend, Nov. 5, 2015.

[ii] See HNi above.

New tool can measure balance in concussion patients, Equilibrate is used in many settings

"Equilibrate is a proprietary, web-integrated, clinical assessment, therapy and data reference tool that combines real time objective upper and lower body measures with the judgment and experience of a clinical professional to improve patient outcomes." - company website

“Equilibrate is a proprietary, web-integrated, clinical assessment, therapy and data reference tool that combines real time objective upper and lower body measures with the judgment and experience of a clinical professional to improve patient outcomes.” – company website

It is easy to take balance for granted. Our sense of equilibrium, also called equilibrioception[i], is the physiological sense we need to stand and walk without falling over. Our eyes work with our ears and our body’s sense of where we are in space compared to other objects. Loss of balance, due to a failure in our balance systems can be rather upsetting and stressful. Balance functioning can be impaired by traumatic brain injury. Concussions are serious injuries because the upset to the balance systems can lead to more serious injuries when an individual cannot control their balance to walk, run or stand correctly.

Professional football players, college athletes and orthopedic surgery patients are more frequently treated with a new technology designed to measure an individual’s balance. The tool known as Equilibrate is made by a New York company, Balance Engineering. Since 2009, Equilibrate has been used to evaluate military combat personnel and elderly patients with falling risks. Balance Engineering chairman and co-founder, Jack Shickler, states “Balance indicates everything about what’s going on in your body.[ii]

Healthcare professionals for a wide variety of purposes use Balance testing tools.

The Equilibrate software was an initial concept that Shickler thought would be useful for his daughter who owns a dance studio. If you were able to test an individual’s sense of balance, you might be better able to predict who would be a better candidate for dance instruction. The ideas for other uses quickly spread. Now competitive athletes and their trainers can better rely on Equilibrate testing to better judge a player’s balance and safety before deciding to allow them to return to practice or play after a concussion.

Hospitals are using this balance measuring software from coast to coast. According to Balance Engineering, the Equilibrate system meets evidence-based preventative medicine needs to correctly assess and treat patients with balance issues. Watch this promotional video to see more!

Significant money, time and effort is invested in the growth of the Equilibrate systems for balance.

Equilibrate’s parent, Balance Engineering, has invested more than $1M in its product. Based in New York State, the company sought to join the Albany Medical Center’s incubator program; “The incubator at Albany Med is among several accelerators in the region that are aiming to tie research to commercialization and create a regional support system for entrepreneurs.[iii]

With dedicated investors and an infrastructure to foster further awareness and application of the Equilibrate system for balance measuring, we are likely to see more industries using the software tool to better treat and monitor football players, dancers, military troops, injured people and our elderly patients.

Michael V. Favia & Associates works with injured people who suffer from concussion symptoms due to a variety of sources, from accidental falls to sports injuries. To learn more about the risks involved with traumatic brain injury and how the law protects injured parties, please be in touch. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a meeting with an attorney at your convenience. For more about Michael V. Favia & Associates, please visit the firm’s website and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.

[i] www.TheMedSchoolProject.com, The Sixth Sense: Equilibrioception, by Marco Narajos, Nov. 26, 2011.

[ii] Albany Business Review, Startup focuses on patients with concussions, balance issues, by Chelsea Diana, Jun. 29, 2015.

[iii] Albany Business Review, Albany Med to open accelerator this spring, by Megan Rogers, Feb. 25, 2015.

Awareness and prevention methods might lead to a reduction in NFL concussion rates

(Credit: CBS 2)

(Credit: CBS 2)

If professional football players are really playing the game differently, the NFL correctly claims that concussion rates are 25 percent less; education and awareness campaigns must be working. The NFL data on injured reserve list players shows the significant decrease in the rate of player concussions. This news was recently promoted at the annual pre-Super Bowl health and safety news conference.

The retired NFL player lawsuits and media coverage promoted increased awareness and research into player education, injury and reporting. The 2014 season was the first in which NFL injury data was electronically collected from all of the teams in the league.

With the new methods for reporting there are more reports of injuries.

There has been a 15 percent increase in injury reporting in the 2014 season, up from last year.  “We knew it was going to be up this year, because we transitioned to the electronic medical records,” Mack said in a telephone interview, echoing Miller’s explanation. “We can’t conclude the incidence of injuries is up. We know the reporting of injuries is up.[i]

Among the data highlights, there were 59 concussions resulting from helmet-to-helmet or shoulder-to-helmet hits during the 2014 season. Last year’s number was just around twice that many. Educating players about how to avoid dangerous hits seems to lead to players avoiding head injuries.

“Players are changing the way they’re tackling,” NFL Senior Vice President of Health and Safety Policy Jeff Miller said. “They’re changing the way they play the game.[ii]

Some claim reduced practice time and new safety protocols affect injuries and reporting.

At the end of the 2013 season, New England Patriots coach, Bill Belichick, suggested that a decrease in the allowed number of practices in both the regular season as well as preseason and offseason contributed to higher injury numbers.[iii] When the U.S. Congress examined NFL concussion policies, and thousands of retired players also criticized the league, the decision was made to implement new safety measures and reduce practice times.

Technology advances for monitoring players, on site game day neurologists, and protecting receivers from being hit by the crown of the helmet are all part of a collection of new methods the NFL is using to reduce head injuries and monitor players to make sure they are blocking and hitting appropriately.

Michael V. Favia & Associates represent clients with sports injuries. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a meeting with an attorney at your convenience. For more about Michael V. Favia & Associates, please visit the firm’s website and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.

[i] CBS New York: AP: NFL Claims Concussions Down 25 Percent. Jan. 29, 2015.

[ii] See HNi above.

[iii] See HNi above.

Congress on Concussions: A review of recent press and activity on contact sports and brain injuries

Thursday in testimony on Capitol Hill. “That's one of the reasons we love it.”"

“UNL physics professor Timothy Gay explains the physics of football in this file photo. “American football is an inherently violent sport,” he said Thursday in testimony on Capitol Hill. “That’s one of the reasons we love it.”” Article Link 

According to research calculations conducted by a physics professor at the University of Nebraska-Lincoln, “professional football players have become so much bigger and faster than the amount of force at work along the line of scrimmage is now twice what it was when the NFL started.[i]” Professor Timothy Gay testified at a congressional hearing in Congress about the current research findings about concussions and in explaining the force of some hits in football. “A helmet-to-helmet collision at top speed is roughly the same as having a 16-pound bowling ball dropped on a player’s helmet from 8 feet up.[ii]” Is football dangerous? Yes, as professor, Gay says, “American football is an inherently violent sport,” he said. “That’s one of the reasons we love it.[iii]

Congress appears to be urging the NFL to continue making changes to its policies with respect to concussions.

VIDEO LINK: ‘This Week’: Congress on Concussions. ABC News’ Jim Avila and ESPN’s Jeremy Schapp on the recent congressional hearing on sports concussions.[iv]

Sports and safety go together more frequently than peanut butter and jelly lately. The increase in research, published findings, and incidents of long-term injuries and damages from concussions are popular topics on the field, in the courtroom and on Capitol Hill. The video linked above mentions some notable facts about sports and traumatic brain injury:

  • 250,000 kids get head injuries
  • 6 million kids play tackle or flag football
  • Players absorb 650 hits to the head every season.
  • Forces each players hitting at full speeds exceeds ¾ a ton.
  • Soccer players are the second most at risk of injury

Contrary to what many critics think, the intention behind many of the concussion lawsuits, research, publications and discussion is not about taking contact sports away, rather the goal is to teach players how to tackle safely and learn to avoid the most dangerous hits.

A change in the culture of contact sports like football is also a factor. Historically there has been what some call a “misplaced macho attitude” encouraging injured players to continue practicing and playing despite their concussion injuries. In the early days of brain injury research, less was known about the long-term effects of concussions. Today, doctors and organizations concerned with sports safety conduct extensive symposiums to share information and promote awareness.

What can or should Congress do? The video linked above suggests Congress should continue to nudge the NFL to make sure research is funded and advances are made in concussion education and prevention. The NFL can send a message that football can be played safely.

Michael V. Favia & Associates represent clients with sports injuries. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a meeting with an attorney at your convenience. For more about Michael V. Favia & Associates, please visit the firm’s website and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.


[i] Omaha World-Herald: UNL professors take the lead at concussion hearings in Congress. By Joseph Morton, Mar. 14, 2014.

[ii] Omaha World-Herald quote from article cited above.

[iii] Omaha World-Herald quote from article cited above.

Why the $765M agreed settlement of the consolidated NFL concussion cases remains on hold

Chicago attorney, Thomas Demetrio confers, that more evidence must be seen to justify that the settlement will satisfy the needs of the injured players over the next many years.

Chicago attorney, Thomas Demetrio, agrees that more evidence must be seen to justify that the settlement will satisfy the needs of the injured players over the next many years.

U.S. District Judge, Anita B. Brody, wants more calculations to ensure just awards of damages for ex-NFL players in the settlement of the well-publicized consolidated concussion cases. Denying a motion to approve the $765M settlement on Tuesday, Brody, “noted that the class of approximately 20,000[i] could overwhelm the [settlement] fund, even if only 10 percent of its members [with cognitive injuries] file claims against the $675 million set aside to pay claims, working out to $337,500 per player,” as reported by Fox News.[ii] To receive part of the special injury compensation fund the former players must present medical evidence of their cognitive injury.

Judges in cases like this must ensure that a settlement amount is adequate and fair?

Settlement amounts are commonly disputed in litigation involving multiple defendants and the variety of damages they sustain. In this case the retired players have a variety of short and long-term physical and cognitive injuries. Some are deceased former players whose families will receive part of the settlement as authorized representatives. The settlement proceeds will be used to cover medical benefits for injured players, to fund medical and safety research, and for the expenses of litigation, including attorneys’ fees.

Judge Brody said in the court opinion, “in the absence of additional supporting evidence, I have concerns about the fairness and adequacy of the settlement.” The lawsuit in this case includes more than 4,500 retired NFL players who sued the league for traumatic brain and head injuries sustained during their employment[iii]. The exact amount of injured players qualified to take from the special $675M fund is unknown, so it is difficult to know if that fund will be adequate and fair.

Medical experts, economists and actuaries are expected to provide additional reasonable and necessary information the judge may review to evaluate if the agreed settlement will be enough to compensate the injured and families of deceased former players.

Many people think the NFL is getting off lightly given that the settlement funds are to be paid over a period of 20 years.

WATCH: Judge fears $765 million not enough 

The link above is to an ESPN video discussing reactions to Judge Brody’s decision. Tia McNeill, former wife of retired NFL player, Fred McNeill[iv], states that she is happy with the ruling because it allows another look at the qualifying factors for eligibility to receive the settlement. Chicago attorney, Thomas Demetrio, agrees that more evidence must be seen to justify that the settlement will satisfy the needs of the injured players over the next many years.

The Law Offices of Michael V. Favia represents injured people, including athletes. Michael V. Favia is an advisory board member and is active with the Sports Legacy Institute and its work in increasing awareness of and education to increase safety and prevent traumatic brain injuries among athletes.  With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a meeting with an attorney at your convenience. For more about Michael V. Favia & Associates, please visit the firm’s website and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.


[i] Terms of the settlement include an award of damages to any retired NFL player as of the date the settlement is accepted. See CBS Sports: NFL, former players reach settlement in concussion lawsuit. By Ryan Wilson, Aug. 29,2013.

[ii] Fox News: Ex-NFL players eye $765M settlement, even if they haven’t signed on. By Joshua Rhett Miller, Jan. 16, 2014.

[iii] CBS Sports: Judge rejects initial $765M NFL concussion lawsuit settlement. By Will Brinson, Jan. 14, 2014.