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Policies | Testing | Communication
Education | Documentation |Safety
Supervision | Transparency | Independence
University ...
Experience
• Counsel Schools/Health Care Providers
• Defend Schools/Health Care Providers
2
November 5, 2005
33
4
August 2011
55
August 28, 2011
…
66
Potential Defendants
• Coaches/Managers
• Athletic Trainers
• Team Physicians
• Athletic Directors
• Colleges, Universitie...
• Failure to conform to the required standard of
conduct
• Departure from conduct expected of a
reasonably prudent person ...
NFL Settlement Will Not Shield You
• NFL litigation (Easterling):
Whether NFL concealed long-term effects of
concussions
•...
Problem: Competing Views of Experts
Issue: Neuropsychological Testing
Case Against University and Others
10
Neuropsychological Testing
• Designed to examine cognitive abilities
– Attention Span
– Memory
– Reaction time
• Used for ...
Expert Report of Neuropsychologist for Plaintiff,
Michael Collins, PhD
Failure to employ
neuropsychological testing:
“CRIT...
Expert Report of Neuropsychologist for Athletic Trainer,
Christopher Randolph, PhD, ABPP-CN
“The poorly-established
reliab...
CRITICAL UNRELIABLE
Neuropsychological Testing
1414
Other Areas of Disagreement
Standard of Care
• Documentation of Injuries
• Communication with Athletes
• RTP Protocol
15
Other Areas of Disagreement
Science/Causation
Second Impact Syndrome
16
Other Areas of Disagreement Science/Causation
Does second impact syndrome EXIST?
Clin J Sport Med. 2001 Jul; 11(3):144-9.
...
Plaintiff’s Attorney n.
The attorney who represents a plaintiff (the suing
party) in a lawsuit.
Concussion Injury Attorney...
Charleston Concussion Lawyer
19
Concussion in Sports
Brain Injury Lawyers
20
Cincinnati Concussion Lawyer
THE POINT: LAW FIRMS ARE TARGETING CONCUSSION
CASES…
21
• Negligence/Premature RTP Following Concussion 32 Days
Earlier
• The Defendants
– University
– Coach
– AT
– NP
– Physicia...
Allegations in Complaint
Concussion Policies
• Failure to have adequate policies and procedures
• Failure to enforce polic...
Allegations (cont)
Against Coach
• Failure to train players on the “proper rules of the
game of football”
• Failure to tra...
Allegations (cont)
Evaluation/Testing
• Failure to properly evaluate initial injury
• Failure to monitor post-concussion
25
Allegations (cont)
Referral
• Failure to refer Plaintiff to doctor for
post-concussion evaluation
• Failure to refer Plain...
Allegations (cont)
Failure to properly document all pertinent information
surrounding initial injury, including:
•mechanis...
Allegations (cont)
• Failure to warn of risks of playing football while still
symptomatic
• Failure to warn of risks of pr...
Battle of Expert ATs:
Proper Standard Care
29
Report – Expert AT for Plaintiff
Failure to have adequate concussion protocol
Failure to use recommended concussion
assess...
Report – Expert AT for Defendant
Delayed return to activity, continued questioning
regarding symptoms, referrals back to S...
Key Issue: Second Impact Syndrome
Battle of Expert Neurosurgeons
32
Report – Plaintiff’s Expert on Second Impact Syndrome
33
Report – Expert on Second Impact Syndrome for AT
NO evidence of
“second impact syndrome”
34
Unclear Standard of Care
LESSON:
35
Complex Scientific Issues
36
Substantial Injuries
37
The “Sympathy” Factor
38
Recent Head Injury Verdicts
and Settlements
• Premature RTP Permanent Brain Damage
$7.5 million verdict
• Injuries Sustain...
• Death of player at a college in MD
• Defendants
– Head Coach
– Assistant Coach
– AT
– NCAA
Ongoing Lawsuit
Parents Sue U...
• “challenged players to play through pain,”
to the point of risk
• “created an environment where players would be
punishe...
Complaint highlights . . .
• “two-a-day” practices
• practices involving “virtually unlimited, full-contact,
helmet-to-hel...
Alleged Facts Leading to Death
• In days before injury, sustained multiple head injuries
(never tested for a concussion)
•...
Other Allegations
• “Incompetence”
• “Egregious Conduct”
• “Disregard for Player Health and Safety”
4444
Total Costs of Cases
45
THE POINT:
Prevent This Experience
46
Take Most Conservative Approach
FOLLOW YOUR POLICY:
UNC Chapel Hill
Sport Concussion Policy
THE BOTTOM LINE:
STAY
CURRENT
...
Safety in College Football Summit
January 2014
3 Paramount Safety Issues
• Contact in football practice
• Concussion diagn...
Concussion Safety Protocol Committee Meeting
March 2015
• Use of “Concussion Safety Protocol Checklist”
for Developing Con...
2015 Spotter Requirement
Football Games
• Independent AT in replay booths
• Own monitor
• Ability to directly contact offi...
NCAA Concussion Policy and Legislation
• Written Concussion Management Plan
on File
• Concussion Evaluations by Medical St...
NCAA Concussion Policy
and Legislation (cont)
• Athletes Cleared by a Physician
• Concussion Education
• Signed Student-At...
TESTING
53
Volume 10. Number 1. January/February 2011
There is no evidence to suggest that the use of
baseline testing alters any ris...
Baseline Testing
Managing Sport-Related Concussions
• Not a Safe Harbor
• One Tool in the Toolbox
55
DOCUMENTING
“ALL PERTINENT INFORMATION”
“If it’s not
documented…
it didn’t happen”
56
COMMUNICATION
57
ATHLETE EDUCATION
• Concussion Symptoms
• Prevention
• Reporting
• Consequences
• Statutory Requirements
58
STAYING EDUCATED/
UP-TO-DATE
• Guidelines
• Sports Medicine Handbook
• Current Literature
5959
WHY?...
ATHLETE SAFETY
HEALTH and SAFETY
of the ATHLETE
ALWAYS COMES
FIRST
6060
Pre-Injury
61
Post-Injury
62
To Minimize Risk
• Following Policy
• Testing
• Documentation
• Communication
• Athlete Education
• Staying Educated
6363
To Minimize Risk
• Medical line of authority established independent
of a coach
• Transparency in medical line of authorit...
NCAA & NFL Class Action Lawsuits
Case Summaries, Settlements,
What Happens Next
65
Class Action Basics
• Lawsuit brought by a sufficiently large
group with sufficiently similar claims
against same defendan...
NCAA Lawsuit
• Alleges NCAA should have known of
long-term effects of concussions but
failed to protect student-athletes
–...
Proposed NCAA Settlement
• Medical monitoring
– Initial screening,
medical evaluation
– Independent
committee
• Funding fo...
Future Suits Against NCAA
• Individual cases for
personal injury damages
by plaintiffs
• Difficulty establishing
NCAA’s du...
Concussion:
The (NFL) Settlement
Allegations
• NFL failed to take reasonable
actions to protect players from
the chronic risks created by
concussive and su...
Terms of Settlement
• Unlimited payments for 65
year life of fund
• Qualifying diagnoses with
individual maximum awards
– ...
Why Did It Settle?
• Collective Bargaining Agreement (CBA)
arbitration provision could mean the suit would
otherwise be di...
Future Cases Against NFL
Settlement Opt Outs
• Proceed with individual
lawsuits
• Why?
– Higher value claims
– Potential d...
Questions?
75
SPORT CONCUSSION
SUMMIT
September 24, 2015#uminjuryctr
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Legal Aspects of Sport Concussion by Steven Pachman and Adria Lamba

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

Veröffentlicht in: Gesundheit & Medizin
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Legal Aspects of Sport Concussion by Steven Pachman and Adria Lamba

  1. 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. 2. Experience • Counsel Schools/Health Care Providers • Defend Schools/Health Care Providers 2
  3. 3. November 5, 2005 33
  4. 4. 4
  5. 5. August 2011 55
  6. 6. August 28, 2011 … 66
  7. 7. Potential Defendants • Coaches/Managers • Athletic Trainers • Team Physicians • Athletic Directors • Colleges, Universities, Other Schools 77
  8. 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. 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. 10. Problem: Competing Views of Experts Issue: Neuropsychological Testing Case Against University and Others 10
  11. 11. Neuropsychological Testing • Designed to examine cognitive abilities – Attention Span – Memory – Reaction time • Used for managing sport-related concussions 1111
  12. 12. Expert Report of Neuropsychologist for Plaintiff, Michael Collins, PhD Failure to employ neuropsychological testing: “CRITICAL FAILURE” 12
  13. 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. 14. CRITICAL UNRELIABLE Neuropsychological Testing 1414
  15. 15. Other Areas of Disagreement Standard of Care • Documentation of Injuries • Communication with Athletes • RTP Protocol 15
  16. 16. Other Areas of Disagreement Science/Causation Second Impact Syndrome 16
  17. 17. Other Areas of Disagreement Science/Causation Does second impact syndrome EXIST? Clin J Sport Med. 2001 Jul; 11(3):144-9. 17
  18. 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. 19. Charleston Concussion Lawyer 19
  20. 20. Concussion in Sports Brain Injury Lawyers 20
  21. 21. Cincinnati Concussion Lawyer THE POINT: LAW FIRMS ARE TARGETING CONCUSSION CASES… 21
  22. 22. • Negligence/Premature RTP Following Concussion 32 Days Earlier • The Defendants – University – Coach – AT – NP – Physician Nature of Plevretes Action 22
  23. 23. Allegations in Complaint Concussion Policies • Failure to have adequate policies and procedures • Failure to enforce policies and procedures 23
  24. 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. 25. Allegations (cont) Evaluation/Testing • Failure to properly evaluate initial injury • Failure to monitor post-concussion 25
  26. 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. 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. 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. 29. Battle of Expert ATs: Proper Standard Care 29
  30. 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. 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. 32. Key Issue: Second Impact Syndrome Battle of Expert Neurosurgeons 32
  33. 33. Report – Plaintiff’s Expert on Second Impact Syndrome 33
  34. 34. Report – Expert on Second Impact Syndrome for AT NO evidence of “second impact syndrome” 34
  35. 35. Unclear Standard of Care LESSON: 35
  36. 36. Complex Scientific Issues 36
  37. 37. Substantial Injuries 37
  38. 38. The “Sympathy” Factor 38
  39. 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. 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. 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. 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. 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. 44. Other Allegations • “Incompetence” • “Egregious Conduct” • “Disregard for Player Health and Safety” 4444
  45. 45. Total Costs of Cases 45
  46. 46. THE POINT: Prevent This Experience 46
  47. 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. 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. 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. 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. 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. 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. 53. TESTING 53
  54. 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. 55. Baseline Testing Managing Sport-Related Concussions • Not a Safe Harbor • One Tool in the Toolbox 55
  56. 56. DOCUMENTING “ALL PERTINENT INFORMATION” “If it’s not documented… it didn’t happen” 56
  57. 57. COMMUNICATION 57
  58. 58. ATHLETE EDUCATION • Concussion Symptoms • Prevention • Reporting • Consequences • Statutory Requirements 58
  59. 59. STAYING EDUCATED/ UP-TO-DATE • Guidelines • Sports Medicine Handbook • Current Literature 5959 WHY?...
  60. 60. ATHLETE SAFETY HEALTH and SAFETY of the ATHLETE ALWAYS COMES FIRST 6060
  61. 61. Pre-Injury 61
  62. 62. Post-Injury 62
  63. 63. To Minimize Risk • Following Policy • Testing • Documentation • Communication • Athlete Education • Staying Educated 6363
  64. 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. 65. NCAA & NFL Class Action Lawsuits Case Summaries, Settlements, What Happens Next 65
  66. 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. 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. 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. 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. 70. Concussion: The (NFL) Settlement
  71. 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. 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. 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. 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. 75. Questions? 75
  76. 76. SPORT CONCUSSION SUMMIT September 24, 2015#uminjuryctr

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