Presentation delivered at University of Michigan Injury Center Sport Concussion Summit, Ann Arbor, September 24, 2015

1. Policies | Testing | Communication
Education | Documentation |Safety
Supervision | Transparency | Independence
University of Michigan Injury Center
Sport Concussion Summit
September 24, 2015
Steven Pachman
Adria Lamba

2. Experience
• Counsel Schools/Health Care Providers
• Defend Schools/Health Care Providers
2

3. November 5, 2005
33

4. 4

5. August 2011
55

6. August 28, 2011
…
66

7. Potential Defendants
• Coaches/Managers
• Athletic Trainers
• Team Physicians
• Athletic Directors
• Colleges, Universities, Other Schools
77

8. • 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
88

9. NFL Settlement Will Not Shield You
• NFL litigation (Easterling):
Whether NFL concealed long-term effects of
concussions
• Arrington v. NCAA
• “Concussion Cases” – Premature RTP
99

10. Problem: Competing Views of Experts
Issue: Neuropsychological Testing
Case Against University and Others
10

11. Neuropsychological Testing
• Designed to examine cognitive abilities
– Attention Span
– Memory
– Reaction time
• Used for managing sport-related concussions
1111

12. Expert Report of Neuropsychologist for Plaintiff,
Michael Collins, PhD
Failure to employ
neuropsychological testing:
“CRITICAL FAILURE”
12

13. 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”
13

14. CRITICAL UNRELIABLE
Neuropsychological Testing
1414

15. Other Areas of Disagreement
Standard of Care
• Documentation of Injuries
• Communication with Athletes
• RTP Protocol
15

16. Other Areas of Disagreement
Science/Causation
Second Impact Syndrome
16

17. Other Areas of Disagreement Science/Causation
Does second impact syndrome EXIST?
Clin J Sport Med. 2001 Jul; 11(3):144-9.
17

18. 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!
If you are injured because of someone’s
negligence and suffer a concussion, you
may be entitled to compensation.
18

19. Charleston Concussion Lawyer
19

20. Concussion in Sports
Brain Injury Lawyers
20

21. Cincinnati Concussion Lawyer
THE POINT: LAW FIRMS ARE TARGETING CONCUSSION
CASES…
21

22. • Negligence/Premature RTP Following Concussion 32 Days
Earlier
• The Defendants
– University
– Coach
– AT
– NP
– Physician
Nature of Plevretes Action
22

23. Allegations in Complaint
Concussion Policies
• Failure to have adequate policies and procedures
• Failure to enforce policies and procedures
23

24. 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”
24

25. Allegations (cont)
Evaluation/Testing
• Failure to properly evaluate initial injury
• Failure to monitor post-concussion
25

26. Allegations (cont)
Referral
• Failure to refer Plaintiff to doctor for
post-concussion evaluation
• Failure to refer Plaintiff to doctor regarding
RTP decision
26

27. 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
27

28. 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
28

29. Battle of Expert ATs:
Proper Standard Care
29

30. Report – Expert AT for Plaintiff
Failure to have adequate concussion protocol
Failure to use recommended concussion
assessments
Failure to keep adequate medical records
30

31. 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.
31

32. Key Issue: Second Impact Syndrome
Battle of Expert Neurosurgeons
32

33. Report – Plaintiff’s Expert on Second Impact Syndrome
33

34. Report – Expert on Second Impact Syndrome for AT
NO evidence of
“second impact syndrome”
34

35. Unclear Standard of Care
LESSON:
35

36. Complex Scientific Issues
36

37. Substantial Injuries
37

38. The “Sympathy” Factor
38

39. 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+
39

40. • Death of player at a college in MD
• Defendants
– Head Coach
– Assistant Coach
– AT
– NCAA
Ongoing Lawsuit
Parents Sue University
Over Son's Death
4040

41. • “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 . . .
4141

42. 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”)
4242

43. 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
4343

44. Other Allegations
• “Incompetence”
• “Egregious Conduct”
• “Disregard for Player Health and Safety”
4444

45. Total Costs of Cases
45

46. THE POINT:
Prevent This Experience
46

47. Take Most Conservative Approach
FOLLOW YOUR POLICY:
UNC Chapel Hill
Sport Concussion Policy
THE BOTTOM LINE:
STAY
CURRENT
Schools, Coaches, and Health Care Providers:
47

48. Safety in College Football Summit
January 2014
3 Paramount Safety Issues
• Contact in football practice
• Concussion diagnosis/management
• Independent medical care
Net: 3 separate sets of guidelines
48

49. Concussion Safety Protocol Committee Meeting
March 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
49

50. 2015 Spotter Requirement
Football Games
• Independent AT in replay booths
• Own monitor
• Ability to directly contact officials
• In addition to presence of on-field doctors/ATs
50

51. NCAA Concussion Policy and Legislation
• Written Concussion Management Plan
on File
• Concussion Evaluations by Medical Staff
Member – with Concussion Experience
• No Same-Day RTP
5151

52. NCAA Concussion Policy
and Legislation (cont)
• Athletes Cleared by a Physician
• Concussion Education
• Signed Student-Athlete Statements
Accepting Responsibility to Report
Injuries
. . .
5252

53. TESTING
53

54. Volume 10. Number 1. January/February 2011
There is no evidence to suggest that the use of
baseline testing alters any risk from sport-related concussion
high false negative rate
may increase that risk
54

55. Baseline Testing
Managing Sport-Related Concussions
• Not a Safe Harbor
• One Tool in the Toolbox
55

56. DOCUMENTING
“ALL PERTINENT INFORMATION”
“If it’s not
documented…
it didn’t happen”
56

57. COMMUNICATION
57

58. ATHLETE EDUCATION
• Concussion Symptoms
• Prevention
• Reporting
• Consequences
• Statutory Requirements
58

59. STAYING EDUCATED/
UP-TO-DATE
• Guidelines
• Sports Medicine Handbook
• Current Literature
5959
WHY?...

60. ATHLETE SAFETY
HEALTH and SAFETY
of the ATHLETE
ALWAYS COMES
FIRST
6060

61. Pre-Injury
61

62. Post-Injury
62

63. To Minimize Risk
• Following Policy
• Testing
• Documentation
• Communication
• Athlete Education
• Staying Educated
6363

64. 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 providers
6464

65. NCAA & NFL Class Action Lawsuits
Case Summaries, Settlements,
What Happens Next
65

66. 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
66

67. 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
67

68. 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
68

69. 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
69

70. Concussion:
The (NFL) Settlement

71. 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
71

72. 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
72

73. 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
73

74. Future Cases Against NFL
Settlement 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
74

75. Questions?
75

76. SPORT CONCUSSION
SUMMIT
September 24, 2015#uminjuryctr