Recent media attention regarding traumatic brain injuries (TBIs) has raised national awareness of the risk associated with these injuries—with the result that healthcare organizations could see a rise in lawsuits claiming medical negligence in the treatment of TBIs.

At a Glance

Healthcare providers should take eight steps to ensure their organizations are prepared for the potential risks associated with traumatic brain injuries:

  • Review current procedures.
  • Educate parents and caregivers.
  • Create targeted programs for seniors.
  • Adopt standard written protocols for providers for identification and treatment.
  • Ensure proper and periodic follow-up with all patients at risk.
  • Add a question about recent falls and head injuriesvto the patient intake discussion sheet
  • Conduct thorough debriefings and analyses following confirmed TBIs.
  • Evaluate the organization’s current insurance policy to ensure it provides the coverage needed.

During an end-of-season baseball game, a 13-year-old boy is struck on the side of the head by a wild pitch and is rushed to the nearby emergency department (ED). The ED staff perform a number of tests and evaluations and can find no evidence of serious injury. The boy is eager to be found well enough to play again, because his team has earned a place in the championship series on the next weekend. The ED physician prescribes a follow-up visit to the boy’s primary care physician, who is also in the hospital’s physician network. 

The primary care physician says he cannot find any reason why the boy should not participate in the championship game, and the boy returns to practice the next day. Then, on game day, in the final inning of a close game, the boy collapses suddenly. He is rushed unconscious to the hospital where he revives, but remains dizzy and disoriented. For the next several months, he undergoes continual therapy for what now is diagnosed as a traumatic brain injury (TBI). His physicians are unable to offer any prognosis for a full recovery. The boy’s family brings a medical negligence lawsuit against the hospital’s primary care physician for giving the boy the “all-clear” to play in the championship game. A jury finds against the physician, and the boy is awarded a $2 million settlement.

Many of the nation’s health systems, emerging accountable care organizations (ACOs), and other provider groups remain relatively unaware that significant risk lurks in their claims files with respect to treatment of TBI. If the recent attention that TBIs have received in the mainstream media is any indication, these healthcare organizations or provider groups face a growing potential of being subject to malpractice lawsuits related to treatment—or lack of treatment—for this condition. This risk is of particular concern to health systems that have providers covered by malpractice insurance. 

What is a TBI? The Centers for Disease Control and Prevention offers the following definition:
A TBI is caused by a bump, blow, or jolt to the head or a penetrating head injury that disrupts the normal function of the brain. Not all blows or jolts to the head result in a TBI. The severity of a TBI may range from “mild” (i.e., a brief change in mental status or consciousness) to “severe” (i.e., an extended period of unconsciousness or amnesia after the injury). The majority of TBIs that occur each year are concussions or other forms of mild TBI. 

The widespread media attention given to TBIs recently has focused on high-profile cases involving NFL players and increased coverage of the horrific head injuries suffered by veterans of the Iraq and Afghanistan wars. Yet these two groups are far from being the only ones affected by TBIs, and the attention given to TBIs within these groups has raised the nation’s general awareness of this condition and its effects on other demographic groups. 

Healthcare providers therefore should be aware that they face a real potential future risk of being targeted by TBI-related litigation, as suggested in the opening anecdote, and take steps to reduce that risk. Providers also should fully understand the nature of TBIs, because they can lead to an array of long-lasting conditions, higher medical and insurance costs, and—should such a finding against an organization in a malpractice lawsuit become publicized—a compromised reputation. 

TBIs pose a particularly noteworthy risk for healthcare providers because they can be difficult to identify and confirm and also challenging to track in patients at risk, as a seemingly innocent “bump on the head” from a childhood fall can lead to seizures, learning disabilities, and even psychiatric disorders that are not easily traced back to the original injury. Thus, virtually any provider along the continuum of care could be exposed to litigation and claims that may be brought years after an initial incident. 

Better education, awareness, analysis of existing data and programs, along with comprehensive risk management programs, can help organizations address this potentially costly issue and minimize exposure and risk.

Malpractice Implications of TBIs

Currently, healthcare providers accused of negligence account for a small percentage of TBI-related litigation. However, when malpractice lawsuits center around brain injuries, the financial consequences can be substantial, so it behooves healthcare finance leaders, in the very least, to be aware of the potential risks posed by these conditions. 

For example, in one of New York’s largest medical malpractice verdicts ever, a jury awarded $120 million to a woman who suffered brain damage after finding that three separate medical facilities had been medically negligent in treating the condition (Flegenheimer, M., “Brain-Damaged Woman Wins Suit Against City Hospitals, The New York Times, May 25, 2012). Although the condition was not specifically identified as a TBI, the case does illustrate the high potential for special damages that brain injury cases can present, especially those involving younger, previously healthy patients. 

Again, however, it should be stressed that the actual state of the healthcare industry with respect to TBI-related malpractice risk is uncertain at this time, and future potential costs associated with TBI are difficult to project because of the lack of predictive data. Nonetheless, four key considerations justify the expectation that the healthcare industry will see rising costs in this area.

First, insurers have undertaken trending analysis for TBI cases, and many are highlighting the need for healthcare organizations to be more aware of emerging risks.
Second, according to internal industry reports and analysis, plaintiffs in TBI cases are increasingly including a wide range of healthcare providers as defendants, even when it is clear that a specific healthcare provider may not be the target defendant.

Third, juries tend to look at the impact on defendants in terms of long-term earning and cost implications, often making assumptions about lifetime earnings and costs. Such assumptions quickly add up for defendants. Healthcare providers therefore should expect and be prepared for higher defense and indemnity costs associated with these claims. 

Fourth, as shown by the case of the three New York hospitals described previously, malpractice cases involving serious conditions such as brain trauma are likely to result in high settlements, making it reasonable to assume that any growth in the numbers of TBI cases is likely to be costly for providers such as hospitals, health systems, and medical groups. 

Focus on Outcomes

Of course, the primary cost concern for healthcare organizations with respect to TBIs is in managing the ongoing cost of providing care for those with such conditions.

According to the results of a U.S. government study of 17 federally funded TBI research and treatment centers, the average daily cost of acute inpatient care for brain trauma care amounted to $8,034 per day in 2011, with average daily costs for inpatient rehabilitation care amounting to $2,227. The USA Today article reporting these findings noted, “On average, the total cost per patient is $162,194 for initial brain-trauma care and $59,862 for inpatient rehabilitation, which lasts about two weeks” (Sternberg, S., “For Brain Injuries, a Treatment Gap,” USA Today, May 2, 2011). Moreover, those figures reflect short-term care only.

Although costs can be high, recent studies show that aggressive therapies and better care coordination can lessen those costs—and most significant, perhaps reduce future risk. For example, researchers at the Perelman School of Medicine at the University of Pennsylvania have found that although aggressive TBI treatment costs more, it also “yields significantly better outcomes, improved quality of life, and lower long-term costs” (press release, “Aggressive Traumatic Brain Injury Care Improves Outcomes, Reduces Long-term Costs, Penn Study Shows,” Penn News, March 6, 2012). The study highlighted that finding with an example of a 20-year-old TBI survivor who, on receiving more “aggressive” care, had exhibited better outcomes and whose costs were $100,000 less when compared with results of routine care. Such results held true across all age groups. 

Steps for an Improved Risk Management Programs 

Finance leaders should be aware of TBI because of the potential financial risks associated with this condition. They also can play an important role by promoting awareness of TBI in their organizations’ patient management programs and in ensuring that organizations’ risk management programs are set up to address this particular type of risk. The low risk that their organizations currently face of being targeted for a TBI-related lawsuit is no excuse for inaction, as steps to address TBI-related risks also can more broadly enhance the overall performance of an organization’s risk management program. 

Notwithstanding the uncertainties involved in diagnosis and care of patients with TBI, organizations can take the following steps to better manage TBI-related risk. 

Consult with the organization’s broker and insurance provider. Look at current claims costs and trends for the organization, its peers, and the region. Where does the organization stand? What benchmarks can the organization establish?

Review current procedures. Determine what steps and processes are already in place to identify and treat TBI. Some organizations may find that the systems are in place and all that is needed is some refinement, whereas others may need to build a program from the ground up.

Educate parents and caregivers. The first responder is often the parent, so educational outreach offering guidance to parents about TBI is an excellent place to start. Also consider partnering with local sports organizations to educate coaches at all levels and ensure they have information on how to identify children with head injuries who should not be allowed back into games or to continue practice.

Create targeted programs for seniors. Seniors are at particular risk for TBI, and the needs of senior health plan members, patients, or those in nursing homes are distinct from other populations. Important issues to consider include surroundings, family support, and cognitive status.

Adopt a standard set of written protocols for providers for identification and treatment. These protocols should reflect accepted best practices for treatments and therapies based on evidence-based medicine and outcomes. The medical team should receive frequent updates, because this area of medicine is developing quickly. Studies highlighting better outcomes from more focused and aggressive treatments should be noted.

Ensure proper and periodic follow up with all patients at risk. Tracking of such patients should be ingrained in the organization’s culture. All providers on the healthcare team should be informed of problems or unusual symptoms associated with at-risk patients, and they should likewise be asked to share such information with the team. 

Encourage providers to add a question about recent falls and head injuries to the patient intake discussion sheet. Each patient should be asked to mention any incidents involving a hit on the head and a subsequent headache. 

Conduct a thorough debriefing and analysis in the event of a confirmed TBI. Key questions to ask: How did the injury occur? What was the timeline between the injury and the diagnosis? Was there any delay? What was learned? How can this knowledge be applied in treating the next TBI patient?

Study the organization’s current malpractice insurance policy with the organization’s legal advisers to ensure it is up-to-date and provides the coverage needed. Also, examine the status of the organization’s current insurer, as recent volatility in the industry has led to downgrades. To protect the organization over the long-term, look for insurers with an A+ rating or higher.

Managing Risk Through Education and Prevention

Insurance industry insiders caution healthcare industry providers that the increased spotlight on TBI may signify the beginning of a potentially costly claims cycle. There is no way to prevent TBIs from occurring, but steps can be taken to minimize their impact, quickly intervene when they do occur, and manage the continuum of care from injury through each treatment phase. 

Healthcare providers have a mission-driven obligation to pledge to do more to help identify and treat patients with brain injuries and to raise awareness of TBIs to help minimize the incidence of such injuries. By acting decisively to fulfill that pledge, providers can expect to see better outcomes for their patients and lower risk for their organizations.

Molly L. Farrell is president, operations, MGIS Underwriting Managers, Inc., Salt Lake City (Twitter: @marymol).

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The Growing Cost of TBIs 

The Centers for Disease Control and Prevention (CDC) estimates that in the United States, approximately 1.7 million people, on average, sustain a TBI annually, and about 5.3 million individuals suffer ongoing effects from such injuries. 

The Brain Injury Association of America estimates that direct medical costs and indirect costs of brain injury (including loss of productivity) cost the nation $76.3 billion annually (“Brain Injuries Do Not Discriminate,” fact sheet, March 2013).

Most significant, an estimated 15 to 20 percent of the population never fully recovers from their brain injury. For these people, the financial, emotional, medical, and personal toll from such injuries will last a lifetime. Although expenditures vary according to the extent of the injury and its specific long-term effects, according to the Brain Injury Resource Center, the cost of caring for a survivor of severe TBI can amount to between $600,000 and $2 million over a lifetime. 

Although the impact of such statistics on people, families, and society is troubling enough, also of growing concern to insurers and healthcare organizations is the reported increase in the number and size of settlements for TBIs. According to industry data, claims costs for TBI typically range from $10 million to $16 million. However, a few high-profile but significant outliers have recently been awarded settlements of more than $100 million. 

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Populations at Risk of TBIs

The increasing costs associated with TBI-related litigation make it important for healthcare organizations to understand which populations are at greatest risk of experiencing these injuries.

In addition to high profile cases involving NFL players and student athletes, attention is also being brought to TBIs because of the horrific injuries suffered by veterans. However, TBIs affect a far wider population, and patient profiles are highly diverse. Characteristics of TBIs can be seen in both children and adults who have suffered a brain injury caused by an external physical force. The most common causes of traumatic brain injury include motor vehicle accidents, sports injuries, falls, and violence or abuse (including firearm incidents). 

The Centers for Disease Control and Prevention (CDC) notes the highest rates of emergency department (ED) visits for TBIs occur among young boys, age 0 to 4 years, and the highest rates of hospitalization and death are among adults 75 and over. 

The CDC also notes the following additional demographics:

  • Children aged 0 to 14 years account for almost half a million (473,947) ED visits annually.
  • The third highest rate of TBIs occurs among 15–19 year olds, with student athletes sustaining, on average, 300,000 brain injuries annually.
  • Falls continued to be the leading cause of TBI, accounting for 35.2 percent of cases in the United States. Falls account for 50 percent of TBIs among children aged 0 to 14 years and 61 percent of TBIs among adults aged 65 years and older.

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