Brain Injury Lawyer - New York

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.

Brain Injury Association Legislative Update

Her is the latest brain injury legislative update prepared by the Brain Injury Association of America (BIA)

Health Care Reform Update

On Wednesday, October 28, 2009, House Democrats introduced their consensus health bill, HR 3962, at a rally on the Capitol's West Front.  According to House Majority Leader, Steny Hoyer, the bill could be considered on the House floor as early as November 5, 2009.

The consensus bill prohibits insurance rating based on health status or pre-existing conditions and prohibits annual or lifetime limits on medical spending. It also establishes important consumer protections, including internal and external appeal requirements, provider network adequacy requirements, and greater transparency by insurance companies.

BIAA will continue to monitor the situation closely and alert grassroots advocates if any action is necessary.

BIAA participates in Sports and Concussion hearing on Capitol Hill

On Wednesday, October 28, 2009, the House Judiciary Committee held a hearing on legal issues relating to brain injuries sustained while playing football.  Testimony was given from the National Football League, Commissioner Roger Goodell, and retired players, Tiki Barber and Merril Hoge, as well as Congressional Brain Injury Task Force Chairman, Congressman Bill Pascrell, jr. and the Co-Director of the Center for the Study of Traumatic Encephalopathy at Boston University and member of the Brain Injury Association of America board of directors, Chris Nowinski.

The Committee investigated the findings of a recent study done by the University of Michigan regarding the prevalence of brain injuries among former football players.  The study raised significant health concerns about concussions and how they may contribute to lasting effects starting at both the professional and amateur levels.

BIAA is committed to assisting in the awareness campaign to educate coaches, parents, and players regarding the dangers of concussion.

Appropriations Update

Consideration of an appropriations measure that would fund labor, health and education programs for Fiscal Year 2010 continues to stall in the Senate.  This week, Congress cleared a continuing resolution that will fund the federal government at the FY2009 levels through December 18, 2009.

BIAA will continue to monitor the situation and alert advocates when action is needed.

BIAA supports S. 801, The Caregiver and Veterans Health Services Act of 2009

BIAA and our friends at the Wounded Warrior Project are currently working towards enactment of legislation establishing a national program to provide training and critically-needed supports to family caregivers of veterans living with traumatic brain injuries and other severe wounds.

Reported in the Senate, S. 801, the Caregiver and Veterans Health Services Act of 2009, would provide comprehensive supports for caregivers of veterans who sustained severe injuries after September 11, 2001.  The bill has been approved by the Senate Veterans Affairs Committee and is awaiting floor action. 

A proposal to reduce brain injuries in football

Today's congressional hearing on the prevalence of brain injuries in the NFL produced few surprises.  The league unfortunately still refuses to concede the connection between chronic brain damage and repetitive concussions.  This denial in the face of overwhelming medical evidence is further evidence that the league may be incapable of policing itself and may cause congressional action including the revoking of the league's antitrust exemption.

Congress needs to go further and also needs to address the protection afforded to the league in erroneous decisions in regard to granting players disability benefits for the chronic and long term consequences of traumatic brain injury.  Injured players deserve access to the Federal court's to present their legitimate claims to a jury.

The following proposal to save the game of football and reduce the incident of concussions and other types of brain damage was presented at today's hearing by Chris Nowinski, president of the Sports Legacy Institute and co director of the Center of Traumatic Encephalopathy of the Boston University School of Medicine.  Chris is also the author of Heads Up, a book which provides a detailed look at the issues of concussions in athletes.

Here is the proposal presented at today's hearing:

10 Point Plan to Save Football:

In the past few years, former football players have begun being diagnosed with Chronic Traumatic Encephalopathy (CTE), a progressive neurodegenerative disease caused by repetitive trauma to the brain
which eventually leads to dementia. Some were famous NFL Hall of Famers like Mike Webster and Lou
Creekmur. Others, like Mike Borich, only played through college. All died sooner than they should have,
and all suffered terribly in their final years.

Since the discovery of CTE in 1928, the disease has been seen almost exclusively in boxers, which is why
it is often referred to as “punch drunk” syndrome. However, it is now diagnosed regularly in ex‐football
players, and in the past year, the Center for the Study of Traumatic Encephalopathy at Boston University
School of Medicine (CSTE) has diagnosed CTE post‐mortem in 11 of 11 former college and professional
football players that died at ages ranging from 37‐82 years. This is significant, as the disease should not
naturally exist in a single human being. The early stages of the disease have even been seen in an eighteen year‐old former football player. In 2009, it is clear that football is in the midst of a brain trauma
crisis.

The game of football has not always been played as it is today. In fact, the most consistent aspect of the
game has been change. In 1905 the game was so dangerous, regularly killing participants, that President
Theodore Roosevelt summoned the coaches of Harvard, Yale, and Princeton to Washington D.C. for a
summit on how to make the game safer and threatened to take action in the absence of significant
reform.

From this meeting the American Intercollegiate Football Rules Committee was created, and that Committee, among other things, legalized the forward pass and made other changes to eliminate dangerous collisions. Over and over, football has had to be changed to be made safer. Now it faces a new challenge.

CTE is a deceptive, quiet killer. The disease begins during a player’s career and then hides, slowly
killing brain cells until the athlete begins showing symptoms years later. Football has evolved into a something it was never intended to be. Football collisions may now be more dangerous for the brain than ever. With the combination of bigger, stronger, and faster players and hard‐shelled helmets that are often used as a weapon to initiate contact, we’ve created a type of repetitive trauma to the brain that has never existed before.

The discovery of CTE inside the brains of so many ex‐football players has shown us that it is again time
for change, and a new Committee. Only this time, it is a Committee to Save Football. Among high school
students, football is the most popular sport in America, played by one in eight American boys. While
football was first played by colleges, today football is a children’s game, with 95% of participants under
the age of 18.

These children are not old enough to make informed choices. Therefore, in light of the new evidence of
CTE in 100% of players studied at Boston University, it seems appropriate that we again reevaluate how
“Solving the Sports Concussion Crisis” we play the game of football before the 2010 season and at all levels of play: youth, high school, college, and professional.

If we can agree that the game is broken and needs to be fixed, we have an incredible number of paths to
a safer game without fundamentally changing football. If we know that practice collisions account for
over 50% of brain trauma, the proposals below could easily eliminate over 75% of brain trauma and
concussions today – it is simply a question of leadership.

Below are 10 paths to a safer game that can and should be used to reduce brain trauma. This would
serve as the basis for evaluating the options available to the Committee to Save Football.

1. Reevaluate how the game is practiced
• Greater than 50% of hits to the head occur outside of games. NFL teams rarely hit in practice due to risk of injury. Youth teams could only be allowed to have full‐contact once a week. Dangerous drills could be banned or used less frequently.

2. Encourage mandatory brain trauma and concussion education  for coaches, athletic trainers, parents, and athletes
• Coaches, athletic trainers, and athletes cannot diagnose concussions if they aren’t trained to look for them or know how to recognize them. Coaches, athletic trainers, and athletes will not voluntarily choose to rest concussions and reduce overall brain trauma if they don’t understand why it is good for the athlete’s short and long‐term health.

3. Reevaluate protective equipment
• Investigate changes to helmets, shoulder pads, and other types of protective equipment to reduce brain trauma.

4. Develop better methods of concussion detection and diagnosis
• The CDC provides clipboards with concussions diagnosis protocols on the back at no cost. Coaches could be required to carry them. We can invest more in research to find simple, objective ways to diagnose concussion that can be utilized in any program.

5. Develop better methods of concussion management
• Return‐to‐play too soon after concussion can result in more extensive brain damage, and can actually result in death. It is now law in Washington state that players are required to see a medical professional with brain trauma expertise before return‐to‐play. Minimum return‐to‐play standards should be enforced at all levels.

6. Consider minimum medical resources
• Football is a dangerous game. Minimum medical resource standards, like having an athletic trainer or doctor on the sideline, should be considered.

7. Reevaluate techniques of tackling and blocking
• We can teach and enforce different methods of tackling and blocking that minimize contact to the head.

8. Reevaluate the rules
• Recently the NFL banned the wedge on kickoffs to reduce trauma. Many other rules could be changed, at all levels of football, to reduce brain trauma.

9. Reevaluate rule enforcement and the role of referees
• The NCAA recently began suspending players for intentional helmet‐to‐helmet hits. Referees could eject players for illegal hits to the head. Referees could be trained to identify concussed players on the field.

10. Reconsider the culture of the game
• Television announcers could stop glorifying illegal hits. Children could stop being pressured to play through concussions.

The evidence now exists to support immediate and radical change to the game of football to dramatically reduce brain trauma. Let us not let this opportunity pass.

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.

Congress has scheduled hearings on Concussion Injuries in NFL

NFL commissioner Roger Goodell and Players Association executive director DeMaurice Smith will testify at a Congressional hearing on head injuries among NFL players.

House Judiciary Committee Chairman John Conyers, Jr., D-Mich., said that the committee will hold its hearing Oct. 28.

The hearings will look at the lasting impact of head injuries, how to limit them and how to compensate players and their families.

The decision to hold the hearings follows a preliminary study which suggested retired pro football players may have a higher rate than normal of Alzheimer's disease or other memory problems. The study was done at the University of Michigan.

Brain Injury Legislative Update

The following brain injury legislative update has been prepared by the Brain Injury Association of America:

FY10 National Defense Authorization Act

On Wednesday, October 7, 2009, the House and Senate Armed Services Committees announced that they had reached an agreement on a conference report to H.R. 2647, the Fiscal Year 2010 National Defense Authorization Act.

In a major victory for the brain injury community, the report included an amendment that authorizes the Secretary of Defense to carry out a pilot program for providing cognitive rehabilitation therapy services under TRICARE.  BIAA worked with the Congressional Brain Injury Task Force to preserve its status as part of the final conference report.  We are thrilled to have contributed to this important step towards providing better access to care for returning service members.

A link to the full text of the amendment can be found here .

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.

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.