legal aspects of sport concussion by steven pachman and adria lamba
TRANSCRIPT
Policies | Testing | CommunicationEducation | Documentation |Safety Supervision | Transparency | Independence
University of Michigan Injury CenterSport Concussion Summit
Legal Aspects of Sport ConcussionSeptember 24, 2015
Steven PachmanAdria Lamba
Experience
• Counsel Schools/Health Care Providers
• Defend Schools/Health Care Providers
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November 5, 2005
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August 28, 2011
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Potential Defendants
• Coaches/Managers
• Athletic Trainers
• Team Physicians
• Athletic Directors
• Colleges, Universities, Other Schools
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• Failure to conform to the required standard of conduct
• Departure from conduct expected of a reasonably prudent person under the circumstances
Theory of Liability:Negligence
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NFL Settlement Will Not Shield You• NFL litigation (Easterling):
Whether NFL concealed long-term effects of concussions
• Arrington v. NCAA
• “Concussion Cases” – Premature RTP
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Problem: Competing Views of Experts
Issue: Neuropsychological TestingCase Against University and Others
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Neuropsychological Testing
• Designed to examine cognitive abilities– Attention Span– Memory– Reaction time
• Used for managing sport-related concussions
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Expert Report of Neuropsychologist for Plaintiff,Michael Collins, PhD
Failure to employneuropsychological testing:
“CRITICAL FAILURE”
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Expert Report of Neuropsychologist for Athletic Trainer,Christopher Randolph, PhD, ABPP-CN
“The poorly-established reliability and utility of
neuropsychological testing in evaluating
sport-related concussion”
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CRITICAL UNRELIABLE
Neuropsychological Testing
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Other Areas of Disagreement Standard of Care
• Documentation of Injuries
• Communication with Athletes
• RTP Protocol
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Other Areas of Disagreement Science/Causation
Second Impact Syndrome
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Other Areas of Disagreement Science/Causation
Does second impact syndrome EXIST? Clin J Sport Med. 2001 Jul; 11(3):144-9.
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Plaintiff’s Attorney n. The attorney who represents a plaintiff (the suing
party) in a lawsuit.
Concussion Injury Attorneys
If you or a loved one has sustained a serious sports-related injury that may have been caused by negligence, give us a call today!
DO YOU NEED A SPORTS INJURY LAWYER?
If you are injured because of someone’s negligence and suffer a concussion, you may be entitled to compensation.
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Charleston Concussion Lawyer
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Concussion in SportsBrain Injury Lawyers
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Cincinnati Concussion Lawyer
THE POINT: LAW FIRMS ARE TARGETING CONCUSSION CASES…
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• Negligence/Premature RTP Following Concussion 32 Days Earlier
• The Defendants– University– Coach– AT– NP– Physician
Nature of Plevretes Action
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Allegations in Complaint
Concussion Policies
• Failure to have adequate policies and procedures
• Failure to enforce policies and procedures
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Allegations (cont)
Against Coach
• Failure to train players on the “proper rules of the game of football”
• Failure to train players on “the type of accepted contact under the rules of college football”
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Allegations (cont)
Evaluation/Testing
• Failure to properly evaluate initial injury
• Failure to monitor post-concussion
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Allegations (cont)
Referral
• Failure to refer Plaintiff to doctor for post-concussion evaluation
• Failure to refer Plaintiff to doctor regarding RTP decision
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Allegations (cont)
Failure to properly document all pertinent information surrounding initial injury, including:
•mechanism of injury;
•initial signs and symptoms; and
•prior concussion history
Documentation
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Allegations (cont)
• Failure to warn of risks of playing football while still symptomatic
• Failure to warn of risks of premature RTP
Education
• Failure to educate on signs and symptoms of concussion and risks of playing football while symptomatic
Failure to Warn
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Battle of Expert ATs:
Proper Standard Care
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Report – Expert AT for Plaintiff
Failure to have adequate concussion protocol
Failure to use recommended concussion assessments
Failure to keep adequate medical records
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Report – Expert AT for Defendant
Delayed return to activity, continued questioning regarding symptoms, referrals back to Student Health, and graded exertional program all are an appropriate part of a RTP protocol.
No evidence to suggest mismanagement of a suspected concussion contributed to the injury.
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Key Issue: Second Impact Syndrome
Battle of Expert Neurosurgeons
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Report – Plaintiff’s Expert on Second Impact Syndrome
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Report – Expert on Second Impact Syndrome for AT
NO evidence of “second impact syndrome”
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Unclear Standard of CareLESSON:
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Complex Scientific Issues
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Substantial Injuries
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The “Sympathy” Factor
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Recent Head Injury Verdicts and Settlements
• Premature RTP Permanent Brain Damage$7.5 million verdict
• Injuries Sustained in Football Game$7.9 million settlement
• Failure to Supervise Catastrophic Football Injury$8.0 million settlement
Demands $10 million+
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• Death of player at a college in MD
• Defendants– Head Coach– Assistant Coach– AT– NCAA
Ongoing Lawsuit
Parents Sue University Over Son's Death
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• “challenged players to play through pain,” to the point of risk
• “created an environment where players would be punished if they disclosed their injuries”
Allegations Center Around Claims That Defendants . . .
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Complaint highlights . . .
• “two-a-day” practices• practices involving “virtually unlimited, full-contact,
helmet-to-helmet collisions”• players encouraged to “lead with your head”
(“Oklahoma drills”)
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Alleged Facts Leading to Death
• In days before injury, sustained multiple head injuries (never tested for a concussion)
• Day of injury, during practice, complained of headache and not “feeling right,” and was bleeding from his forehead
• Assistant Coach: “stop your . . . moaning . . . and get back out there”
• Returned to field, collapsed, never regained consciousness
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Other Allegations
• “Incompetence”
• “Egregious Conduct”
• “Disregard for Player Health and Safety”
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Total Costs of Cases
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THE POINT:
Prevent This Experience
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Take Most Conservative Approach FOLLOW YOUR POLICY:
UNC Chapel Hill Sport Concussion Policy
THE BOTTOM LINE:
STAYCURRENT
Schools, Coaches, and Health Care Providers:
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Safety in College Football SummitJanuary 2014
3 Paramount Safety Issues
• Contact in football practice
• Concussion diagnosis/management
• Independent medical care
Net: 3 separate sets of guidelines
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Concussion Safety Protocol Committee MeetingMarch 2015
• Use of “Concussion Safety Protocol Checklist” for Developing Concussion Management Plans
• Adopted by Power 5 Conferences(ACC, Big Ten, Big 12, Pac 12, SEC)
• NCAA.org
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2015 Spotter RequirementFootball Games
• Independent AT in replay booths
• Own monitor
• Ability to directly contact officials
• In addition to presence of on-field doctors/ATs
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NCAA Concussion Policy and Legislation
• Written Concussion Management Plan on File
• Concussion Evaluations by Medical Staff Member – with Concussion Experience
• No Same-Day RTP
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NCAA Concussion Policy and Legislation (cont)
• Athletes Cleared by a Physician
• Concussion Education
• Signed Student-Athlete Statements Accepting Responsibility to Report Injuries
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TESTING
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Volume 10. Number 1. January/February 2011
There is no evidence to suggest that the use ofbaseline testing alters any risk from sport-related concussion
high false negative rate
may increase that risk
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Baseline Testing Managing Sport-Related Concussions
• Not a Safe Harbor
• One Tool in the Toolbox
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DOCUMENTING “ALL PERTINENT INFORMATION”
“If it’s not documented…
it didn’t happen”
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COMMUNICATION
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ATHLETE EDUCATION
• Concussion Symptoms
• Prevention
• Reporting
• Consequences
• Statutory Requirements
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STAYING EDUCATED/UP-TO-DATE
• Guidelines
• Sports Medicine Handbook
• Current Literature
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WHY?...
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ATHLETE SAFETY
HEALTH and SAFETYof the ATHLETEALWAYS COMES
FIRST
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Post-Injury
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To Minimize Risk• Following Policy
• Testing
• Documentation
• Communication
• Athlete Education
• Staying Educated63
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To Minimize Risk• Medical line of authority established independent
of a coach
• Transparency in medical line of authority
• AT Supervision
• Medical director to oversee health care providers64
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NCAA & NFL Class Action Lawsuits
Case Summaries, Settlements, What Happens Next
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Class Action Basics
• Lawsuit brought by a sufficiently large group with sufficiently similar claims against same defendant(s)
• General Requirements– Numerosity, commonality, typicality,
adequate representation, notice, opt-outs• Why Class Action?• Limitations
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NCAA Lawsuit• Alleges NCAA should have known of
long-term effects of concussions but failed to protect student-athletes– Class: all current and former NCAA
student-athletes who experienced one or more head impacts while playing sports at an NCAA school resulting in concussion/concussion-like symptoms
• Adrian Arrington’s story– Allegations– Future health problems– Currently opposing the proposed
settlement
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Proposed NCAA Settlement
• Medical monitoring– Initial screening,
medical evaluation– Independent
committee• Funding for
concussion research• New guidelines for
member schools
• NCAA immunity from future medical monitoring suits and personal injury class actions
• NCAA admits no liability
• Potential lingering problems
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Future Suits Against NCAA
• Individual cases for personal injury damages by plaintiffs
• Difficulty establishing NCAA’s duty– NCAA denied duty in Sheely
• Difficulty establishing causation
• Lack of benefits of class action
Concussion:The (NFL) Settlement
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Allegations• NFL failed to take reasonable
actions to protect players from the chronic risks created by concussive and subconcussive head injuries
• NFL fraudulently concealed risks from players
• NFL culture glorified violence and encouraged players to play despite head injuries
• Declaratory relief, medical monitoring, monetary damages
• Class: all living NFL players who retired before preliminary approval date, representatives of deceased/incompetent players, derivative claimants
Terms of Settlement• Unlimited payments for 65
year life of fund• Qualifying diagnoses with
individual maximum awards– Causation presumed– Neurocognitive Impairment
(2 levels), Alzheimer’s, Parkinson’s, ALS
– Death with CTE - LIMITED– Most mood and behavioral
symptoms not included• Revisit every 10 years
• NFL receives immunity from all similar claims arising out of or relating to head/brain/cognitive injury, and concussions or subconcussive events
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Why Did It Settle?• Collective Bargaining Agreement (CBA) arbitration
provision could mean the suit would otherwise be dismissed
• Difficulties with proving elements of negligence & fraud– Duty of NFL– Causation– Fraud
• Quick, definite payments• Public pressure on NFL• Cost of individual litigation
Future Cases Against NFLSettlement Opt Outs
• Proceed with individual lawsuits
• Why?– Higher value claims– Potential discovery– Questioning settlement
• Lingering issues with CBA provision, causation, liability
Other Future Cases
• Using other symptoms to bring claims for CTE in living persons
• Subconcussive injuries as basis for lawsuits
• Current and future players
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Questions?
SPORT CONCUSSION SUMMIT
September 24, 2015 #uminjuryctr