Brain Injury Lawyer - New York

Why the Court must not dismiss the lawsuit by players against the NFL

I am honored that my thoughts on the current players lawsuit against the NFL, "NFL Lawsuit Sheds lIght on Concussion Risks"  was published this evening on the Huffington Post, blog:

 

http://www.huffingtonpost.com/michael-v-kaplen/post_4612_b_3039472.html

 

April 9, 2013, marks the date for oral argument in the United States District Court in Philadelphia, Pennsylvania, on the National Football League's motion to dismiss the lawsuit brought by brain damaged professional football players. The players allege that the league intentionally concealed the risks of concussion and permanent brain injury. It is essential and necessary that the district court allow these law suits to proceed to expose the reprehensible pattern of deception and intentional misconduct committed by the league, whose management exalts profits over player safety.

The suit spotlights players who have sustained brain damage while playing professional football, while the league knew and intentionally obscured the known risks of serious brain injury. If this theme sounds familiar, it is. Similar successful claims have forced the tobacco industry to be accountable to seriously injured individuals for intentionally misleading them and the general public by hiding the known risks of smoking. So, too, the asbestos industry was found responsible for its intentional cover-up of the dangers of asbestos exposure and the serious pulmonary consequences. The NFL, like tobacco companies and asbestos manufacturers, has concealed relevant and crucial evidence from those whose very lives depend on the league's behaving in a responsible manner to protect them from these dangers.

The popular appeal of professional football and the inherent violent nature of the game, encouraged by the league to garner a larger fan base, make it imperative that the truth be revealed. The public not only has a right to know, they have a need to know that these deceptions and misrepresentations have nurtured both a professional and amateur culture that condones and celebrates violence. Over the years, the NFL staunchly refused to acknowledge the accumulating body of impartial medical evidence highlighting the risk of permanent brain damage from repeated blows to the head. More than 40 years ago, the prestigious Congress of Neurological Surgeons repudiated the misconception that concussions are not brain injuries.

The NFL, however, hid behind the inaccurate statements made by its own Committee on Mild Traumatic Brain Injury. The committee's inaccurate statements include their unsupported assertion that "mild TBIs in professional football are not serious injuries;" their questionable studies which reach the suspicious conclusion that the second impact syndrome and permanent brain damage as a result of multiple concussions is not a risk to professional football players; and their dangerous statement that "many NFL players can be safely allowed to return to play on the day of the injury after sustaining a mild TBI." These deceits imperiled professional football players and innocent children, who model themselves after their football idols, with the permanent cognitive, behavioral, social and emotional consequences of brain trauma. Their coaches all look to the NFL for guidance in protecting their players.

The Committee formed in 1994 was a charade. The group's leader, a rheumatologist, was unqualified to render any opinion about brain injury, possessed no formal training or certification in neurology, and misrepresented his credentials on his CV and during Congressional testimony. The committee reports were deliberately designed to mislead the players and the public. Twenty-five years later, when Congress held hearings on the important issue of concussion and player safety, committee and league representatives denied the connection between football and brain trauma.

The NFL mild traumatic brain injury committee's co-chair, Ira Casson, in a written statement to Congress stated: "My position is that there is not enough valid, reliable or objective scientific evidence at present to determine whether or not repeat head impacts in professional football result in long-term brain damage,"

Representative Linda T. Sánchez, Democrat of California, skeptically responded to similar assertions by NFL Commissioner Roger Goodell by stating; "And it sort of reminds me of the tobacco companies pre-'90s when they kept saying, 'Oh, there's no link between smoking and damage to your health.'" The league and its physicians prior to, during and after this hearing, have conspired together in what amounts to a pattern of civil racketeering, to deprive injured players of their right to disability benefits, medical care and rehabilitation treatment coverage.

A searchlight must be directed at the morally reprehensible long-term conduct of the NFL in failing to be truthful and protect the lives and health of players. The players and their attorneys must be given the opportunity to conduct discovery and expose the game of Russian roulette that the league has played with dire consequences to players. The questions, "What did they know?" and "When did they know it?" must be answered under penalties of perjury.

There has never been any serious question that football is a concussion delivery system. But despite this knowledge, over the years, players have been encouraged to "shake it off." They have been rewarded for big hits and for violently sacking a quarterback. They have been told there is no evidence linking concussions to long-term brain trauma. The conduct of the NFL is duplicitous and must be scrutinized under a bright and honest light to reveal the truth.

American Academy of Neurology issues important updated sports concussion management guidelines

The American Academy of Neurology has issued important revisions to its guidelines for sports concussions in the Journal Neurology.

 

The academy has attempted to answer the following questions:

 

1. For athletes, what factors increase or decrease concussion risk?

2a. For athletes suspected of having sustained concussion, what diagnostic tools are useful in identifying those with concussion?

2b. For athletes suspected of having sustained concussion, what diagnostic tools are useful in identifying those at increased risk for severe or prolonged early impairments, neurologic catastrophe, or chronic neurobehavioral
impairment?

3. For athletes with concussion, what clinical factors are useful in identifying those at increased risk for severe or prolonged early post- concussion impairments, neurologic catastrophe, recurrent concussions, or
chronic neurobehavioral impairment?

4. For athletes with concussion, what interventions enhance recovery, reduce the risk of recurrent concussion, or diminish long-term sequelae?

Here is the summary of their results:

“Specific risk factors can increase or decrease concussion risk. Diagnostic tools to help identify individuals with concussion include graded symptom checklists, the Standardized Assessment of Concussion, neuropsychological assessments, and the Balance Error Scoring System. Ongoing clinical symptoms, concussion history, and younger age identify those at risk for post-concussion impairments.  Risk factors for recurrent concussion include history of multiple concussions, particularly within 10 days after initial concussion. Risk factors for chronic neurobehavioral impairment include concussion exposure and APOE e4 genotype. Data are insufficient to show that any intervention enhances recovery or diminishes long-term  sequelae post-concussion.”

 The bottom line?  All concussions are different and each player suspected of having a concussion needs to be
individually evaluated with a combination of resources including neuropsychological assessment and medical evaluation.  Concussions are serious injuries and when in doubt, keep them out!

New research to develop novel traumatic brain injury imaging technology

Traumatic brain injury research received an important boost this week as a result of a $60 million joint initiative between the National Football League (NFL) and General Electric (GE) whose aim is to develop novel imaging technology and other tech-based approaches to aid in the prevention, detection and management of traumatic brain injury (TBI) and concussions.

The theme of a video shown at a joint news conference was “the better we understand the brain, the better we can protect it”.

Hopefully the research that is developed will enable scientists to better understand the effects of trauma on the brain and brain functioning.

According to NFL Commissioner, Goodell, the primary aim of the initiative is “better diagnosis, treatment and prevention of brain injury”. He admitted that “there is a lot more to do” and that any way to “speed up” the process to “develop new technology to better protect the brain” would be in the best interests of all players– but also younger players in high school, college and those much younger”.

The project will proceed in two parts. The first part will involve a $40 million research project led by GE to better diagnose mild traumatic brain injury (TBI), and to predict the outcomes over time. The second phase will focus on materials and structural design of equipment (helmets) to protect the brain from impacts.

Simple blood test may detect brain damage in athletes even from subconcussive blows to the head

New research from The Cleveland Clinic and the University of Rochester suggests that even sub concussive blows to the brain may cause long term brain injury and can be detected by a simple blood test.

The researchers found that cumulative trauma to the head cause a brain protein to leak into the blood stream following a head injury.  The study conducted among college found that even though none of the players suffered a concussion during the season, four of them showed signs of an autoimmune response that has been associated with brain disorders.

The study was published March 6, 2013, in the online journal PLOS ONE and was sponsored by the National Institute of Neurological Disorders and Stroke (NINDS). 

The protein, known as S100B is found only in the brain; finding S100B in the blood indicates damage to the blood-brain barrier and is widely used as a marker of traumatic brain damage when other typical signs or symptoms are absent. The researchers studying the release of this protein found that once in the bloodstream, S100B is seen by the immune system as a foreign invader, triggering an autoimmune response that releases auto-antibodies against S100B. Those antibodies then seep back into the brain through the damaged blood-brain barrier, attacking brain tissue and leading to long-term brain damage.

It has been suggested that utilizing this blood test may prove to be an effective, quick and cost effective means of detecting traumatic brain injury in athletes.A blood test will be much less expensive (about $40) and could be performed anywhere, such as locker rooms or doctors' offices. More importantly, though, the blood test could offer a yes-or-no determination of whether an athlete requires medical intervention as a result of in-game collisions.

 

NASCAR may require baseline neuropsychological testing for its drivers

Baseline concussion testing may become mandatory for all NASCAR race drivers as early as 2014 according to news reports.

 Reportedly, NASCAR spokesman Kerry Tharp said that NASCAR has been providing information during competitors' annual preseason physicals about the imPACT test, which measures several neurocognitive functions including memory, reaction time, attention span and other cognitive abilities.

Baseline testing is performed at the beginning of each season to determine an athlete’s cognitive abilities before a concussion takes place. The athlete is then retested after a concussion or head injury and the results are compared to the earlier test. This provides medical professionals with important information on how the brain is healing and whether a player has fully recovered from the concussion. While the test cannot provide all of the answers, it is part of the arsenal of information that allows for an intelligent decision on when an athlete can return to play.

New government sponsored concussion study reported

Reuters News Service reports that a new sports concussion study has been initated by the United State Institute of Medicine, which is part of the National Academies of Science to investigate sports related concussions among our nation’s youth.  The study will look at concussions in children from elementary school through early adulthood and will also include military personnel and their dependants.

The government study will review concussions and risk factors pertaining to this type of brain injury.

The study is being headed by Robert Graham, a public health expert at the George Washington University School of Public Health.  According to Reuters, the study panel will likely submit its findings to the Institute of Medicine in the middle of the summer, with publication expected in late 2013.

Sponsors of the study include the Department of Defense, the CDC and the National Institutes of Health. The panel will also examine studies being done by the CDC and the American Academy of Neurology.

Web site to track concussions in the NFL

ESPN has partnered with FRONTLINE to track concussions and other head injuries sustained by football players in the NFL.  They have created a web site to “track which players are being removed from games after a hit to the head — and which players are not — and to keep score of how long they are kept from the field following a concussion.”

There  will be considerable difficulties in tracking all of the brain injuries sustained by these players since there is no uniform way that exists among all teams for reporting concussions and head injuries or brain trauma. But, the project is a very worthwhile effort to get some meaningful information on something that the NFL likes to keep quiet about.

More information can be obtained from the concussion watch web site.

 

An insidious conspiracy by the NFL and its insurers to deny brain injured players access to the courthouse

An article in yesterday’s New York Times, Concussion Liability Costs May Rise and Not Just for NFL, discusses the ongoing dispute between the NFL and its insurance companies concerning insurance coverage issues for the law suits commenced charging the league with fraud in their concealment of the dangers of concussions to their players.  The article also discusses the anticipated increased costs for insurance coverage faced by school districts faced with concussion related claims.

The sad truth is that insurers, teams, school districts will all use this as an excuse to seek limitations on liability and hold school sports programs hostage.  Those who cause injuries to innocent victims and insurers always cry foul when the day of reckoning approaches.

Player safety either in the NFL or in school districts can never be held hostage by this sort of argument. This is an insidious conspiracy to do away with these cases and obtain legislative immunity to purportedly "save" school districts from a "flood of litigation"  I never saw anyone drown when the “flood gates of litigation” are opened.  This is typical rhetoric to avoid legal liability.

 All players deserve safety and full access to the courthouse to protect their rights when teams, school districts and the league ignore their legal obligations.

 You can read the full New York Time story by clicking here.

It is also a calculated business decision by insurance carriers to fashion an exit strategy for them to avoid paying out on legitimate claims, that until this time they have avoided.  Now, with the burgeoning law suits they might have to pay out on insurance claims that have never been made before, although they have been collecting premiums for years.  Similar to homeowner’s insurance companies that are trying to find ways to limit their Hurricane Sandy exposure.

A portable device to detect traumatic brain injury and concussions?

Can a portable diagnostic device be developed to quickly determine a traumatic brain injury?  According to researchers in Singapore at Singapore's Institute of Microelectronics (IME), such a device is being developed to diagnose concussions and forms of brain trauma.

The researchers are working to produce a device that is fully-integrated and has automated biosensors. All it will take is a drop of blood to detect up to three biomarkers released by the brain after sustaining brain damage.

These biomarker readings will be displayed on an easy-to-read screen.  An indicator will alert the caregivers on the severity of the injury and enable them to prevent the condition from worsening.  Since the device is portable, it can be used on sports fields and at accident scenes to determine whether further evaluation or care is required.

Click here to read the full story.

Brain Injury and Concussion in High School Football

Football and concussions continue to be debated. Is the game worth the risk of permanent brain damage?  Should head hits be prohibited?  Should you allow your child to particpate in a sport that can result in permanent brain injury?

I recently came across a PBS Frontline Documentary on Head Injuries (and other issues) in High School Football. Worth watching no matter how you feel about the game.  You can get more informatoin by clicking here.