Brain Injury Lawyer - New York

NFL to require "independent" medical examinations following concussions--will they truly be independent?

FOX Sports has reported an important new policy development in the NFL policies toward concussions.  According to FOX, the NFL  will now require teams to retain the services of independent neurologists and neurosurgeons to assess players following a concussion or head injury.

FOX Sports has learned that the teams were instructed to immediately find "independent" doctors and send names to the league for approval. The league will then team with the NFL Players Association's medical people to determine that each doctor is in fact an expert in this field as well as impartial to the team they are handling.   You can read the full Fox report:  NFL Implements new concussion policy. The New York Times has also followed up with a story of its own on this same subject, NFL To Shift In Its Handling of Concussions.

While this all sounds good, the concept of an “independent” examination is always something I am always cautious of.  In the area of personal injury, insurance companies routinely seek the service of “independent” medical examiners to assess our clients.  Unfortunately, these physicians are anything but independent and are in reality doctors for hire.  They understand who pays the bills and what the insurance company wants them to find and/or not find.  Time and time again, in the context of traumatic brain injury litigation my clients have been subject to phony medical examinations by neuropsychologists and neurologists who were anything but independent, ignored the available medical evidence, gave improper and incomplete examinations, relied upon faulty data and made up medicine to come to a conclusion that insurance company who was paying the bill wanted.  In fact, I call these “independent” medical examiners, Paid doctors for hire.  Other professions have different names for paid services.

The travesty of these exams came to light recently in a three part New York Times expose on “independent” medical examinations in the workers compensation context.  The physicians were retained by third party providers and understood what expectations were regarding their opinions.  These physicians tailored their opinions in favor of those who were paying for their services.

The NFL is no stranger to these biased examinations.  In fact, the examinations conducted by the league's disability plan are anything but independent.  The medical providers hired to perform these examinations to determine a player's entitlement to disability benefits routinely come to conclusions that are biased and faulty.  If the league goes to these same "experts" this time, the results will be predictable and more players will suffer from the life long consequences of a traumatic brain injury.

I am all in favor of taking the decision away from team physicians and team trainers, but I believe that players need the ability to retain their own physicians to provide advice and make important decisions for them.

Some important insights into concussions from Harry Carson

Hall of famer, Harry Carson has delivered some important messages on the tragedy of concussions in professional sports today.

Harry has devoted a great deal of time to alert the public and especially those participating in amateur athletics to the dangers associated with concussions. As Harry aptly observed while a guest of  honor at the recent Brain Injury Association of New York State Journey of Hope Gala, "According to the NFL and their physician, Dr. Ira Casson, they've been conducting studies for fifteen years.  How much longer do you have to extend your research to come up with any kind of definitive conclusion?"

Here are some more of his comments:

“It’s that train that’s coming down the track and it’s coming full speed and more and more players are being affected by lingering effect of concussions,”

“As a parent you really should be concerned,” -- “So if there is one thing that should come out of this thing, parents should have the information to determine whether they want their child to play a contact sport, football or not. Unfortunately for many of us who have played the game, there’s nothing really that can be done. The damage is already done."

Hopefully the league and congress will both hear these important messages and take appropriate steps to reduce the risk of permanent damage from concussions to all players, both professional and amateur.

Concussions in the NFL--A problem that won't go away

On the heals of new medical evidence that chronic traumatic encephalopathy (CTE) is linked to repetitive concussive injuries in football players, the House Judiciary Committee has scheduled a hearing for tomorrow to examine the way that the NFL handles brain injuries both for present players and those who have unsuccessfully sought disability retirement benefits.

Last week, neurologists and pathologists associated with the Center for the Study of Traumatic Encephalopathy announced their findings that even college athletes who received multiple concussions were found to have this brain damage.  Dr. Ann McKee, an associate professor of neurology and pathology at the Boston University School of Medicine and co-director of the Institute is quoted in the New York Times as saying, "I've looked at more that 1,000 brains and I've never seen this in any individual living a normal life--it's only through head trauma. "

The health care crisis goes for beyond professional football players.  Evidence of this disease in younger athletes raises serious safety concerns and again raises the issue, is the NFL and their poor decisions setting the wrong example for younger athletes and leading to more brain injuries and permanent brain damage?

Here are some additional comments by Dr. McKee: "The fact that we are seeing this disease, it had a devastating effect on their lives, mow in a 42 year old who never played in the N.F.L. indicates that it's a more pervasive problem that we recognize.  What are we doing with our kids?  Are we doing enough to protect against their developing this awful condition?"

Tomorrow's hearing will focus on these issues.  Among those invited to testify are Dr. McKee and neurosurgeons, Robert Cantu and Julian Bailes who have also down extensive research on concussions and the effects of cumulative concussions in athletes.  Another witness, David Weir from the University of Michigan recently published research sponsored by the NFL that suggested that professional football players had rates of cognitive disease several time higher then the general population.

I also heard that Dr. Eleanor Perfetto, the wife of former lineman Ralph Wenzel who was institutionalized for dementia is also scheduled to testify.  I had the privilege of meeting Dr. Perfetto last week at the Sports Legacy Institute awards dinner in Boston, Mass. She has fought a long and hard battle with the NFL over this injury had has been a great friend and advocate for other football families who face the uphill battle with the league's disability plan to obtain benefits that these players are entitled to.

Chairman Conyers and the House Judiciary Committee must press NFL Commissioner Roger Goodell as well as players executive director Maurice Smith on why the league continues to try to minimize this serious condition and why players who suffer from traumatic brain injury can't obtain benefits that they bargained for as part of their collective bargaining agreement.

NPR Radio explores concussion issues in NFL

NPR Radio's sports program Only A Game aired today, October 3,  contains portions of an interview with me in their segment which explores the recent study which showed that former NFL players were much more likely to be diagnosed with Alzheimer’s and dementia than the non-football playing public.  Is the league and the players’ own union ignoring the health risks of playing in the NFL?  Only A Game’s Associate Producer Karen Given investigates.

You can listen to the program by clicking here.  (The NFL segment begins at 14.41 and runs until 18.40) 

NFL Players Association and Congress to Take a Closer Look at Concussions

Following stories in the New York Times earlier this week on the studies sponsored by the NFL which show a link between repeated concussions and early on set dementia, the NFL Players Association has formed a committee to address the issue of head trauma among players.

The player’s association concussion and traumatic brain injury committee will address diagnosis, treatment and prevention of concussions and brain injuries in active players; and the long-term cumulative effects of isolated or repetitive traumatic brain injuries in NFL players as patients.

At the same time,  the chairman of the House Judiciary Committee says he will hold hearings on head injuries among NFL players. The hearings will look at the lasting impact of head injuries, how to limit them, and how to compensate players and their families.

Both of these events are encouraging news in efforts by many including myself to bring attention to the epidemic of traumatic brain injury and to increase public awareness of the dangers of repeated concussions and ill advised decisions to prematurely allow athletes to return to play.

With new leadership in the NLF as well as the player’s association, perhaps a new rationality can be brought to bear on the issue and an honest recognition that concussions are serious and must be treated as a life threatening condition.

Perhaps the player's association will contact me and ask for my involvement in these important efforts. 

Further, injured players who submit competent proof of concussions and cognitive disorder should be properly compensated for their injury under league collective bargaining agreements. If they are not, then the courthouse door needs to be opened to these players to seek proper legal redress.

Read about the NFL players commiettee plans to study head trauma .

Read about the congressional hearings on concussions: Congress to hold hearing on NFL head injuries.

Tomorrow's Evidence Lecture

I am honored that tomorrow I will be lecturing to New York lawyers on recent developments in Evidence at the yearly law update conference sponsored by the New York State Academy of Trial Lawyers.

The Academy is composed of both plaintiff and defense trial lawyers from throughout New York State dedicated to protecting, preserving and enhancing the civil justice system. I am a proud member of the Academy's Board of Directors and support the academy's efforts to protect the right of trial by jury in all civil matters.  

New York State Governor Patterson has just signed into law the Nursing Quality Protection Act which requires hospitals and other heath care facilities to report information about nursing staff levels and certain data regarding the quality of patient care to State agencies as well as members of the public that request this information.

This information will hopefully aid state agencies in regulating the quality of care rendered and prevent injuries from taking place within hospitals and nursing homes.  It will also provide the public with the access to important information in making decisions concerning where treatment is to be rendered.

In the current health care debate, their are those who are seeking to limit the rights of those injured by medical negligence to receive full and fair compensation rather than than address the root causes of medical negligence.  Diminishing patient rights is not the solution.  The correct approach is the reduction in medical errors.  This legislation will expose inadequate staffing and provide important quality of care indicators.

Victims of medical error can seek redress by contacting the New York medical malpractice attorneys at De Caro & Kaplen, LLP

Important Civil Rights Ruling for Mentally Disabled

A very important decision was handing down this week in Brooklyn Federal Court concerning New York State's policy of housing mentally ill adults in large adult homes.

The Federal Court in Disability Advocates Inc. v. New York State 03 CV 3209, ruled that New York State violated the Americans With Disabilities Act by failing to place mentally ill individuals in the "most integrated setting"-meaning a setting that enables these individuals to interact with non-disabled persons to the full extent possible. The decision authored by US District Judge, Nicholas G. Garaufis is 210 pages with 914 footnotes.  It provides and excellent lesson in disability rights and the Americans With Disability Act.

In housing disabled individuals in adult homes, the State of New York was effectively warehousing these individuals who prior to this placement were in hospitals.  The State in then transferring them to adult homes has unnecessarily segregated them from society as a whole and has isolated them. Most of these individuals, the Court found were capable of living in supported housing within the community and receiving flexible support services.

The decision has important implications for the brain injury community who also are victims of discrimination in services which often times need to be provided in nursing homes or adult care rehabilitation facilities, but instead can be provided at home with community based supports.  That is the purpose of the New York State Traumatic Brain Injury Medicaid Waiver program. 

Much credited needs to go to Disability Advocates Inc. (DAI) for their hard work and efforts in achieving this important victory for the disabled.

Malpractice Reform and Health Care Reform Are Not the Same

Within President Obama’s speech on our national health crisis last evening were references to “reform” of medical malpractice litigation.  The problem is not that their are too many medical malpractice law suits, but that we have too much medical malpractice!

As medical malpractice brain injury attorneys, we see the tragic brain damage caused by medical errors.  We see brain damage caused by among other things, errors in anesthesia care, emergency room treatment, surgery, obstetrician and gynecological care as well pediatric care. These tragic and preventable errors lead to a life of disability for the victim and unimaginable consequences for their families.  To add insult to injury, the victim frequently cannot get the care that they deserve to correct the medical errors because of the refusal on the part of their health insurer to pay for comprehensive care and rehabilitation.  This refusal only adds to further injury and causes the taxpayer to foot the bill when care must be paid for by a state, Medicaid system. 

Here are some points in regard to medical malpractice that need to be stated in this debate on health insurance reform.

• Medical malpractice has no place in the health-care debate. Health care reform is about making sure that every American has access to quality, low-cost health care, not about limiting the legal rights of innocent patients harmed by medical negligence.
   
• Tort reform does not improve the quality of our health care system or produce cost savings. Forty-eight states have already enacted at least one medical malpractice tort reform measure. Yet, these legal restrictions have done nothing to improve our health care system—forty seven million Americans still have no health care, costs are still escalating and 98,000 Americans still die each year from preventable medical errors. Limiting the legal rights of injured patients will do nothing to fix these problems.
 
• Medical malpractice is about real people, with real injuries. The Institute of Medicine estimates that 98,000 people die each year in the US from preventable medical errors.  And, this number does not even include the countless other people who are injured by medical errors. Rather than reforming the legal system that provides protections to these injured patients, we must focus on reforming the medical system in this country to prevent these errors from ever happening in the first place.
 
• There is no medical malpractice crisis. In 2008, medical malpractice payments accounted to 0.2 percent of all health costs – the lowest level on record. Furthermore, researchers at the Harvard University School of Public Health have found that nearly all medical negligence claims are meritorious, with 97 percent of claims involving medical injury and 80 percent involving physical injuries resulting in major disability or death.
 
• Americans should not have to give up rights, in order to gain the right to health-care. President Obama has repeatedly stated that in America, health care is a right.  Likewise, Americans should not have to relinquish their constitutionally protected 7th Amendment rights in order to gain access to quality health- care. 
 
• Lawmakers should focus on the key issues. Achieving consensus on the health reform is an extremely delicate balance. Lawmakers must not unnecessarily insert extraneous, controversial issues such as tort reform into an already complicated issue.
  
• Health courts would be an expensive, bureaucratic nightmare. They would exchange a patient’s constitutional right to a jury trial for a schedule of pre-determined outcomes that would be handed out by judges more interested in appeasing special interests than rendering justice to the injured patients standing before them. And health courts would not protect patients from wrongdoers, but instead, would shield doctors and hospitals from accountability for their careless, harmful acts. Health courts truly are an unfair proposition for patients. 

Abusive Head Trauma-Shaken Baby Syndrome Conference

A conference to explore head trauma and shaken baby syndrome as well as other head injuries caused by assaults on children has been announced by the office of the Queens District Attorney.

The head trauma conference is scheduled to take place on Monday, September 21, 2009 at the offices of the New York City Medical Examiner, 421 East 26th street from 9:00 AM to 6:00 PM.

The topics scheduled to  be covered include:

• Forensic controversies in abuse head trauma
• Neuropathology of lethal child abuse
• Non-accidental injury from the pediatric neurosurgical perspective
• Retinal hemorrhages and their relationship to shaken baby syndrome
• A view of fatal head injury from the standpoint of a forensic medical examiner

You can obtain more information on the conference by clicking here.