Brain Injury and Sports, Brain Injury Association Information, Brain Injury Lawyers and Law, Current Affairs
NFL Concussion Litigation: Brain Injury Association of America Files Amicus Brief With Third Circuit Court of Appeals
My partner, Shana De Caro and I are honored to have submitted an amicus brief on behalf of the Brain Injury Association of America (BIAA) to the United States Third Circuit Court of Appeals in the NFL concussion litigation explaining the science of Traumatic Brain Injury (TBI) and the misconceptions inherent and relied upon by the District Court in the settlement agreement.
We hope that the information and authorities we have provided will assist the Court in reexamining the settlement terms in proper context and set the agreement aside in the interest of all retired NFL football players who have sustained brain injury.
Founded in 1980, the Brain Injury Association of America (BIAA) is the oldest, largest, non-profit, nationwide brain injury, advocacy organization. As the leading advocate for all victims of brain injuries, BIAA has an interest in ensuring this settlement fairly considers all brain-injured players for whose benefit this action was commenced. BIAA seeks to provide the Court with unbiased, accurate information regarding consequences of traumatic brain injury and protect the integrity of traumatic brain injury scientific research.
From the amicus brief submitted on behalf of the Brain Injury Association of America:
“The settlement neither recognizes nor compensates the majority of players suffering long-term consequences of brain trauma, but merely rewards certain, small, discrete groups. The vast majority of retired football players experiencing physical, emotional, and behavioral impairments following repetitive concussions remain excluded and uncompensated under settlement terms. In the interest of expediency, the District Court relied on self-serving submissions of counsel, which unjustifiably categorized the vast majority of brain injuries as not being “serious” or unrelated to repetitive head trauma, ignoring the overwhelming scientific consensus regarding the causes and ramifications of traumatic brain injury.”
“The settlement, as approved by the District Court, is faulty in many respects, including but not limited to : 1- failure to consider subtle differences and distinctions of developing brain damage not immediately apparent; 2- omission of mild brain injury; 3- failure to compensate recognized physical, behavioral, emotional, and cognitive sequelae of concussion; 4- exclusion of well-recognized categories of presumptive brain injury; 5- failure to provide meaningful benefits for cognitive impairment; 6- arbitrary compensation distinctions based upon years of play and age; 7- implicit disregard of overwhelming medical evidence that one concussion can precipitate life-long consequences; 8- an illusory benefit failing to account for required Medicare and Medicaid lien offsets; 9- insurmountable neuropsychological testing criteria; 10- ignoring physical, emotional, and behavioral impairment undetectable by the settlement’s testing protocol; 11- overemphasis on malingering tests; and 12- failure to consider alternate testing modalities, such as diagnostic imaging.”
Shana De Caro, Esq. is a member of the Board of Directors of the Brain Injury Association of America and immediate past chair of the American Association for Justice, Traumatic Brain Injury Litigation Group. Michael V. Kaplen, Esq. is a Professorial Lecturer in Law at The George Washington University Law School teaching the only course on traumatic brain injury law in any US law school and past president of the Brain Injury Association of New York State.
Shana and Michael are partners in the New York personal injury law firm, De Caro & Kaplen, LLP
Brain Injury Prevention, Brain Injury Publications, Current Affairs
CDC Updates on Traumatic Brain Injury
The Journal of Head Trauma Rehabilitation released a special issue highlighting work from CDC and CDC’s partners to prevent traumatic brain injury (TBI) and to help people better recognize, respond, and recover if a TBI occurs. These studies present a clearer picture of TBI in the United States and the progress in the field.
Some key findings include:
• Online Training Effectiveness: CDC and the National Federation of State High School Association’s concussion course online was effective in increasing concussion-related knowledge across a wide range of individuals.
• Sports and Recreation TBI: About 7% of all sports and recreation-related injuries treated in United States emergency departments were TBIs.
• Data Sources: New sources of TBI-related data on emergency department visits and hospitalizations will improve the ability to examine subpopulations most at risk for TBI.
• Unemployment: About 60% of people (ages 16 to 60) who were discharged from inpatient rehabilitation following a TBI between 2001 and 2010 were still unemployed two years after their injury.
• Motorcycle TBI death: Motorcycle crash patients with a TBI were 3 times more likely to die in the emergency department compared to those without a TBI.
You can review the special issue of the Journal by clicking here .
Brain Injury and Sports, Brain Injury Association Information, Brain Injury Lawyers and Law, Brain Injury Legislative News, Current Affairs
Brain Injury Association of America files motion in federal court disputing the terms of NFL settlement
The Brain Injury Association of America (BIAA) filed a motion today in the United States District Court for the Eastern District of Pennsylvania seeking permission to appear as a friend of the court )amicus curiae to explain concerns it has with the proposed NFL brain injury settlement..
Similar to concerns raised by my partner, Shana De Caro who chairs the American Association for Justice, Traumatic Brain Injury Group and myself in our numerous op-ed pieces that have appeared on the Huffington Post and in the National Law Journal, the Brain Injury Association believes that the settlement unfairly discriminates among different groups of players and fails to provide any compensation to the majority of NFL players who sustained life altering traumatic brain injuries as a result of playing professional football.
Following are some of the areas of concern noted in the affidavit filed in support of the motion to intervene:
•The settlement excludes numerous physical and behavioral consequences of brain injury from the list of qualifying diagnoses for treatment and compensation. A concussion results in a wide range of neurological, physical, cognitive, and neuropsychological impairments that can appear immediately or many years after injury, requiring specialized treatment on an ongoing or intermittent basis.
•The approach to diagnosing impairment is “deeply flawed” and will exclude many former players from receiving compensation. The determination of eligibility is heavily weighted towards those with severe memory dysfunction and/or evidence of neuromuscular abnormality. If a player has impairment in language or visual function, but not in executive function, learning or memory, he will not qualify.
•The downward adjustment of compensation based on the number of seasons played, the age of the player at the time of diagnosis, and incidence of stroke or traumatic brain injury (TBI) prior to being admitted to the class, demonstrates a serious lack of understanding of concussion and mild TBI. A single concussion, whether diagnosed or not, can result in debilitating physical, cognitive, and behavioral impairments that interfere with the activities of daily living and require a lifetime of treatment. Therefore, the nature and extent of the impairment – not the number of seasons played – should be the determining factor in any monetary award.
•The limitation of pharmacy vendors to mail order pharmacies. Some medications require distribution that controls for temperature, light, vibration, and other conditions and cannot be reliably distributed by mail order. In addition, use of mail order prevents a physician from making quick and immediate medication changes.
•The BAP Supplemental Benefits program fails to recognize the full extent of the treatment team that may be required. The standard of care for patients with TBI dictates that rehabilitation and other medical treatment plans are developed and carried out by a multi-disciplinary team of licensed, credentialed clinicians working in specialized settings and accredited programs. These include endocrinology, physical medicine, ophthalmology, neuro-optometry, otolaryngology, psychiatry, physical therapy, occupational therapy, speech/language therapy, and neurobehavioral therapy, among others.
Copies of the motion and affidavit filed by BIAA can be obtained on their website.
Brain Injury Lawyers and Law, Current Affairs
Delaware bus crash--Safety should be number 1 priority
Yesterday’s horrific bus crash in Delaware highlights the need for better enforcement of safety regulations against bus companies and their drivers involved in interstate bus travel.
I was honored to be interviewed yesterday by NBC News about this bus rollover accident which caused two deaths and many severe injuries to the bus occupants. Click here for news story about this fatal bus crash in Delaware
As a member of the interstate bus accident advisory board of the American Association for Justice Interstate Bus Accident Litigation Group, our law firm has handled many cases against bus companies resulting in severe injury and death caused by negligent bus drivers and negligent bus companies.
According to published reports the tour bus company, AM USA Express of Chinatown, New York, had been stopped by federal agents for inspections 30 times since August 2012, and had been cited for 18 safety violations during that period. The most recent of these inspections, on July 23, resulted in two citations for driving the bus in excess of permitted time rules.
Interstate Bus Accidents are a leading cause of death and serious injury on our nation’s roads and highways. Thousands of injuries are caused every year due to negligent driving of bus drivers, the failure of bus companies to properly train and supervise their bus drivers, and bus companies’ faulty inspection and maintenance of their fleets. Hundreds of needless deaths are caused by driver error and the poor bus company safety records. Recent deadly bus accidents in New York highlight the urgent need for more state and federal oversight of bus drivers and bus companies.
Bus occupants have a right to expect that a bus driver is properly trained and licensed, well-rested and capable of operating a bus in in a manner so as to protect the safety of all passengers. Passengers, and the public at large, have right to expect that buses are properly inspected and designed, and that all parts of the bus are properly maintained.
When bus accidents occur due to driver error or fatigue, due to improper and unsafe bus maintenance, including defects in the bus or its tires, or a company’s failure to supervise and train its drivers, the victims of these disasters should be able to obtain the compensation they deserve for their injuries.
Brain Injury and Sports, Brain Injury Lawyers and Law, Brain Injury Legislative News, Current Affairs
Hearing needed before NFL revised settlement agreement is considered by Federal Court
The revised NFL brain injuy settlement agreement is fatally flawed. Judge Brody should hold a hearing before she even considers granting preliminary approval to the settlement.
Here are some preliminary observations that were published yesterday by my partner, Shana De Caro and myself on the Huffington Post:
The revised proposed settlement of the class action lawsuit against the NFL remains fundamentally flawed. The settlement neither recognizes nor compensates the majority of players who suffer the long-term consequences of repeated concussive injury.
The foundation of the lawsuit was the deliberate and longstanding misrepresentations by the NFL and its committee on traumatic brain injury, concerning the known health risks that players confronted from repetitive brain trauma so ingrained in the game. For years, the NFL has staunchly refused to acknowledge the accumulating body of objective medical evidence revealing the risk of permanent brain damage from repeated head trauma. The NFL remained shrouded by inaccurate statements propagated by its own Committee on Mild Head Injury, including false declarations that "mild TBIs in football are not serious injuries" and that "many NFL players can be safely allowed to return to play on the day of the injury after sustaining a mild TBI." This deception imperiled professional football players and was calculated to mislead players and the public.
Today's proposed revised settlement persists in disregarding the issues that are essential to the vast majority of players that are affected. A concussion is a brain injury. A mild brain injury is only mild if it is someone else's brain. The silent majority of players who have cognitive, emotional, and behavioral impairments because of their reliance on the fraudulent conduct by the NFL will remain uncompensated under this settlement.
The court has an obligation to protect all players who are part of this class action lawsuit. Any settlement that fails to address the claims and interests of the majority of players should be rejected as imprudent and contrary to the best interests of the majority of class members.
The claims of the preponderance of players must be allowed to continue in order to expose the reprehensible pattern of deception and intentional misconduct committed by the league, whose control of the negotiations of this settlement, elevates profits over player safety.
Brain Injury and Sports, Brain Injury Broadcasts, Brain Injury Lawyers and Law, Brain Injury Legislative News, Brain Injury Prevention, Current Affairs
Sports Concussion Summit-Listen this Sunday when I share my thoughts with Bob Salter on WFAN
Last Thursday, I joined President Obama at the White House for his Summit on Youth Sports Concussions. I will be discussing my thoughts about the new sports concussion initiatives and the need for comprehensive federal legislation this Sunday morning at 7 AM with Bob Salter on WFAN Radio 66 AM, 101.9 FM You can listen to a live stream of my interview on Sunday by clicking here.
Brain Injury and Sports, Brain Injury Lawyers and Law, Brain Injury Legislative News, Brain Injury Prevention, Current Affairs
The White House Concussion Summit-No Quick Fixes Please
I had the honor and privilege to be a participant in yesterday’s White House Sports Concussion Summit.
President Obama’s inaugural concussion summit presented a watershed moment in validating and tackling the public health crisis of the long term hazards posed by concussions in sports and its ramifications. The President’s opening remarks were very encouraging and he deserves credit for bringing everyone together around this issue. Unfortunately, the momentum was lost when the panelists shifted the focus to protection of sporting activities from the negative publicity associated with brain injury rather than protection of players.
The White House Summit on sports was an opportunity to embrace a uniform national protocol comprehensively tackling the multi-dimensional issues related to sports concussion management. It is critical to avoid preventable brain injuries and manage the brain injuries that unfortunately but inevitably occur. Though many coaches and parents fear the over-protective label, they have justification for their safety concerns.
Contrary to the perspective of the panel, brain injury is not a simple event with a simple solution. One only need listen to the many young adults who suffer permanent disability in the pursuit of athletic participation. No one is suggesting a ban on athletic activities. Yes, concussions happen. It is part of the game, but we must implement initiatives to reduce the risk of injury, and prevent, preventable injuries.
This national summit on the public health crisis of sports related brain injury missed an important opportunity to set forth a meaningful agenda and address the needs of the millions of individuals who have sustained a brain injury both on and off the playing field.
Increased government funding is crucial for continued meaningful and targeted research on prevention, diagnosis and treatment and much more will be necessary in our efforts to comprehend the complexities of traumatic brain injury.
Traumatic brain injury affects 5.2 million Americans. Government initiatives must extend beyond the athletic fields and focus on all aspects of this silent but burgeoning epidemic. A brain injury is not a passing illness. The lifelong cognitive, emotional, and behavioral consequences of this condition affect every aspect of the victim’s life. A brain injury can affect anyone, anytime, anywhere, and unfortunately, it does. A national proposal attempting to prevent, reduce, and treat brain injury must be comprehensive in scope.
There are those who might have another agenda, not entirely focused on public health. Multi-billion dollar enterprises, such as the NFL, have been jeopardized, and its image tarnished by mushrooming liabilities and the trickledown effect on college and youth sports. The league might have other motivation in joining this project. The NFL employs marketing masterminds to control the public’s perception of concussion risks. The league’s “Heads Up Football” tackle program attempts to convince parents that football can be made safe. Football is a concussion delivery system. While it is beneficial to improve and require “safe” tackling procedures, there is no empirical evidence supporting the position that changing the tackle rules will either reduce the rate or decrease the severity of concussions.
Pixie dust solutions only work in fairy tales. The dangers of concussions remain constant. A concussion is a brain injury: a significant event with potentially life-altering consequences.
Doubtless NFL monetary contributions to fund brain injury research are beneficial. These funds must not be allowed to subtly influence the outcome of that research. When the fox supervises the chicken coop, the outcome becomes predictable. The NFL’s proposed settlement of the pending mass injury lawsuit is a perfect example of the league’s duplicity. No settlement funds have been committed to players who continue to suffer the long-term consequences of the post-concussive syndrome. Despite overwhelming medical evidence, the league steadfastly refuses to acknowledge that a concussion can cause life-long consequences. Those who control the flow of funds, and research, must be vigilant to be impervious to outside influences and any invisible strings that might be attached to the money.
Brain Injury and Sports, Brain Injury Association Information, Brain Injury Events, Brain Injury Lawyers and Law, Brain Injury Legislative News, Brain Injury Prevention, Current Affairs
White House Sports Concussion Summit
The White House has announced that President Obama will hold a summit on youth sports and concussions on May 29th at the White House entitled, The White House Healthy Kids and Safe Sports Concussion Summit. The purpose of this meeting is to bring together young athletes, academics, parents and others to raise awareness of traumatic brain injuries in our nation’s youth as a result of sports.
According to a press statement, the administration will announce new commitments by the public and private sectors to raise awareness among athletes, parents, coaches, schools and others on how to identify and treat concussions and to conduct research to help understand how sports-related concussions affect young athletes.
Brain Injury Latest Medical News, Brain Injury Lawyers and Law, Brain Injury Legislative News, Current Affairs
Karl Rove Needs to Apologize for His Derogatory, Uneducated and Misleading Statement About Traumatic Brain Injury
Karl Rove’s statement regarding a brain injury sustained by former Secretary of State Hillary Clinton is derogatory, uneducated, and misleading, and should be condemned.
Karl Rove should apologize to the millions of Americans who are living with the lifelong consequences traumatic brain injury related disability. His cavalier attitude and complete ignorance about the silent epidemic of brain injury is an affront to those suffering from this disease. This ought not to provide fodder for a political agenda.
According to the most recent statistics from the Centers for Disease Control, “approximately 5.3 million Americans are living with a TBI-related disability and the consequences of severe TBI can affect all aspects of an individual’s life.” This includes the ability to work, be employed, perform household tasks, drive, and/or participate in other activities of daily living, and endangers relationships with family and friends.
Brain Injury Association Information, Brain Injury Broadcasts, Current Affairs
TBI Public Funding Webinar Series sponsored by The National Association of State Head Injury Administrators (NASHIA)
The National Association of State Head Injury Administrators (NASHIA) has announced a new series of webinars highlighting traumatic brain injury public funding programs including:
TBI Trust Fund programs;
Medicaid Home and Community-Based Services (HCBS) waivers; and
Maximizing and pooling resources to support services and TBI service delivery systems.
Webinar I: TBI Trust Funds
Date and Time: Wednesday, May 21, 2014 from 1:00 PM – 2:00 PM (ET)
This first webinar will focus on trends in State TBI Trust Fund programs. Presenters will provide an overview of state trust fund programs and methods for maximizing revenue resources through legislation and pooled funds.
1. Identify states with TBI trust funds and resources
2. Identify methods for maximizing and pooling resources
3. Understand how data can be used to support increased funding
Registration information: First come, first served; limited seating. Reserve your space now by following this link
Registration is free. No CEUs will be offered.
Speaker presentations will be posted on the NASHIA Website
Webinar II: Medicaid TBI HCBS Waivers
Wednesday, June 18, 2014: 2:00 PM (ET)
Webinar III: Pooling Resources for TBI Services
Wednesday, July 16, 2014: 1:00 PM – 2:00 PM (ET)