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Jury Awards and Settlements


Settlements and Jury Awards for Multiple Concussion Injury, Second Impact Syndrome, or Post-Concussion Syndrome


 

Settlement: $7,500,000

November 25, 2009

Negligence and Medical Malpractice: College athlete suffered Second Impact Syndrome; brain surgery to treat recurring seizures; and spastic quadriplegia requiring 24-hour care

 

In 2005, a student-athlete at LaSalle University was injured in a helmet-to-helmet collision with a teammate during football practice. Four days later, the athlete told the team trainer he was experiencing headaches. Two days after that, he reported to the Student Health Center complaining of dizziness, headaches and ringing in his ears. The next day the athlete’s parents drove him to an emergency room near his parents' house. The day after, the staff at LaSalle cleared him to practice and the athlete returned to the football field the next day.

 

Two weeks later, the athlete was playing in a game against Duquesne University when he was blocked by a Duquesne player and rendered unconscious. After the athlete regained consciousness he stood up but then fell back to the ground and lapsed into a coma. The athlete was rushed to an emergency room where it was determined that he had lapsed into a coma.

 

The athlete sued LaSalle University for negligence, alleging the school had negligently treated him directly after his first concussion and after he returned from the initial emergency room visit. He also sued the LaSalle University Student Health Center; the LaSalle University Athletic Training Department; the Sports Medicine and Certified Athletic Trainer for LaSalle University; LaSalle Team Doctor; and a Certified Registered Nurse Practitioner for personal injuries damages. The athlete also sued Duquesne University, the Duquesne University Football Coach, and the Duquesne University football player, but some parties were dismissed from the action.

 

The athlete’s counsel contended that the LaSalle University defendants were negligent in handling the athlete's injuries for several reasons. Counsel asserted that when the athlete reported to the school athletic trainer, just four days after suffering the initial concussion, the trainer only took the athlete out of the game and did not perform standardized cognitive or balance testing, despite the fact that the athlete was experiencing headaches and dizziness. Additionally, counsel asserted that the trainer failed to ask the athlete to perform exertion maneuvers and did not refer the athlete to a specialized physician or emergency room. However, the trainer did advise the athlete to visit the Student Health Center.

 

When the athlete reported to the Student Health Center, he consulted with the certified nurse practitioner and stated he was experiencing headaches, dizziness and ringing in his ears. Counsel asserted that the nurse practitioner actually consulted the Internet in order to perform a Standardized Assessment of Concussion (SAC) test. The nurse practitioner diagnosed the athlete with a Grade 1 concussion and told him to take Tylenol.

 

The athlete's counsel then asserted that the athlete was negligently cleared to return to the field before the symptoms from his concussion had cleared and as a result developed Second Impact Syndrome, suffering a second, more debilitating concussion in the game against Duquesne. The athlete's counsel asserted that the athlete suffered Second Impact Syndrome because his symptoms from the first concussion had not eased and, upon the second impact, his brain swelled extremely and rapidly, causing a coma and severe brain damage.

 

Counsel for the athlete asserted that LaSalle University and its agents were fully liable for the athlete's Second Impact Syndrome because the athlete should not have been cleared to return to the field when his symptoms from the first concussion had not yet resolved. Counsel also added that the testing the nurse practitioner performed was designed for use immediately after a concussion is sustained and not six days after the injury. Further, counsel alleged that LaSalle was actually liable for negligence before the athlete even suffered the first concussion because it never performed preseason base-line testing of its football players. Counsel noted that this testing would have offered the LaSalle staff comparisons to use as a guide in determining the athlete's fitness for football activities after the initial concussion.

 

The LaSalle defendants asserted that the university met the standard of care when it cleared the athlete to return to the football field because, among other reasons, his CT Scans were normal. The LaSalle defendants also denied this was a case of Second Impact Syndrome. In fact, the defendants noted that the athlete had participated in football games in between the two incidents and the defendants maintained that, had Second Impact Syndrome been the cause of the athlete's life-altering injury, any one of the less-serious blows to the head the athlete had sustained during the football games following one game and preceding the Duquesne game could have caused the injury. Since it took such a violent collision to cause the athlete's brain injury, the defendants maintained that the athlete's brain injury was caused fully by the later impact and wholly unrelated to any residual effects from the first collision.

 

The athlete's counsel asserted that the athlete's brain injuries will cause him to have difficulty talking for the remainder of his life. Further, counsel contended the athlete's short-term memory was permanently damaged by the injuries. Lastly, counsel maintained that the athlete would require 24-hour attendant care for the rest of his life.

 

The athlete's counsel sought about $1.2 million for the athlete's past medical bills along with between $5,707,952 and $17,118,221 for the athlete's future medical and life care damages. Counsel also sought between $2,088,823 and $5,579,100 for the athlete's diminished future earning capacity.

 

The athlete's counsel also sought unspecified damages for past and future pain and suffering. The defendants denied liability but agreed to settle.

 

See: Preston Plevretes v. LaSalle University, et al., 2009 WL 5207343 (Pa.Com.Pl.).

 


 

 

Jury Verdict: $0

Sept. 18, 2009

Medical Malpractice: High school football player suffered Second Impact Syndrome resulting in permanent neurologic damage

 

The plaintiff was a high school varsity football player. The team contracted with Orthopaedic Associates of Wisconsin (OAW) to provide athletic training. A certified athletic trainer worked with the football team.

 

The plaintiff was injured in a scrimmage the morning of Aug. 19, 2005. He reportedly told a teammate he felt dizzy and lightheaded afterwards. The trainer concluded the plaintiff was fit to continue with the day's scrimmages.

 

The plaintiff later told his parents that he got his “bell rung” during the scrimmage and was unable to remember several plays. The plaintiff confirmed he might have a concussion but also reported he felt fine. He continued to participate in practices and games for the following two weeks. The plaintiff reportedly asked his mother for headache medication several times.

 

The plaintiff started at linebacker Sept. 2. He collided with an opposing player just before halftime. He took himself out of the game, collapsed, vomited and lost consciousness. The plaintiff was transported by ambulance to a hospital, where a CT scan revealed a subdural hematoma along with edema. Surgery removed the hematoma, but he suffered a series of strokes resulting in permanent brain injury affecting his cognition, motor function and vision.

 

The plaintiff and his parents filed a lawsuit in the against OAW, and its insurers. The plaintiffs added other insurers pursuant to medical and related benefits paid on the plaintiff 's behalf.

 

The plaintiffs alleged the trainer violated applicable “return to play” guidelines that significantly increased the plaintiff 's risk of permanent brain injury or death. The plaintiff’s said their son's brain injury was the result of Second-Impact Syndrome caused when the plaintiff 's initial concussion was not diagnosed and allowed to heal before the boy had another football collision.

 

They made a claim for their son’s permanent neurologic damage, pain and suffering, disability, lost enjoyment of life and loss of future educational, athletic and vocational opportunities. The parents alleged expenses incurred from their son's medical, nursing and in-home care as well as loss of their son's society. They sought judgment against the defendants for compensatory damages.

 

OAW denied liability for the plaintiffs' injuries and damages. It asserted affirmative defenses of failure to mitigate damages and immunity.

 

The trainer asserted the plaintiff did not report any symptoms to him after the scrimmage incident. The trainer alleged he conducted a proper assessment of the plaintiff, who showed no signs he was suffering from any kind of injury.

One insurer asserted it was not liable for the trainer's conduct because he was not a health care provider as defined in the Wisconsin statute. The defendant claimed the trainer was not under the direction and supervision of a physician at the time of the alleged negligence during the Aug. 19 scrimmage.

 

The other insurer filed an answer and cross-claim asserting its subrogation rights pursuant to $5,200 in medical expenses it paid for the plaintiff following his brain injury.

 

The third insurer paid $185,060 for a portion of the charges made for the plaintiff 's treatment following his brain injury.

 

OAW argued the plaintiffs' alleged injuries were within the scope of its contract with its insurer because the alleged shortcomings were issues of health-care judgment.

 

The insurer asserted the trainer was not being supervised by a physician and that the OAW's physician's presence on the sidelines during the Sept. 2 incident was irrelevant.

 

A jury returned a verdict Sept. 18, 2009. The panel determined OAW was not negligent in providing training services to the plaintiff.

 

See: A.M. v. Orthopedic Assoc. of Wis., 2009 WL 5947533 (Wis.Cir.).

 


 

 

Jury Verdict: $16,550 less prior settlement for a net verdict of $0.

December 12, 2008

Auto Accident resulting in concussion and Second Impact Syndrome; the plaintiff was no longer able to care for himself or fully understand what was happening around him.

 

A 75 year old man with Alzheimer's disease maintained that the brain damage he experienced was due to an auto accident and not his preexisting condition. The case was heard by a jury who awarded plaintiff $16,550 after deliberating for an hour. However, due to a previous settlement of $100,000, the net verdict for plaintiff was $0.

 

The plaintiff was involved in a motor vehicle collision with the defendant. The defendant admitted liability for the accident. The liability carrier settled for $100,000 and the case proceeded as an underinsured motorist (UIM) claim.

 

The plaintiff alleged that he suffered a concussion and permanent brain damage due to Second-Impact Syndrome. Second Impact Syndrome is a rare condition in which the brain swells rapidly after a person suffers a second concussion before symptoms from the first concussion have resolved. The plaintiff was no longer able to care for himself or fully understand what was happening around him.

 

The defendant's expert testified that the plaintiff's condition was due to normal and expected degeneration related to his previously diagnosed Alzheimer's disease. The defendant’s counsel argued plaintiff had all the common symptoms associated with Alzheimer's, such as trouble understanding questions or giving coherent responses.

 

See: Thomas v. Mullings, et al, 2008 WL 6691500 (Md.Cir.Ct.)

 


 

 

Confidential Settlement

August 25, 1998

Negligent Supervision; Premises Liability: High school senior was injured while playing in a football game resulting in Second Impact Syndrome, traumatic brain injury, impaired cognition, right-sided hemiparesis, gait disorder, impaired cognition, speech dysfunction, dysdiadochokinesia, visual field cuts, and depression.

Settlement Demand: $18,590,000

 

The 16 year old plaintiff was a lineman for his high school. During a junior varsity football game he collided with an opponent. He emerged shaken and got up (eventually without assistance), but went immediately to the side line. He mentioned to a teammate he got hit hard and had his “bell rung.” The coaches were aware of this situation and sat the plaintiff out the rest of the game. He was seen holding his head and grimacing in pain. One teammate heard him yelling about the pain as he approached the sidelines. The school district did not make medical personnel available on the sidelines. The plaintiff told his parents afterwards that he blacked out.

 

The plaintiff wrote a letter six days later (the day before the second impact) to his biological father saying he had blacked out and had suffered a concussion. The next day, the plaintiff awoke with a headache but went to school.

 

After school at football practice he had a headache, and the coaches did not allow him to participate. That evening he was still complaining of a headache and his mother sent him to bed with Tylenol. The next day the plaintiff awoke with a continuing headache and his mother decided to keep him home from school to sleep for the morning. At football practice that day, he still had a headache and did not participate in any contact practice.

 

The next day he went to school with a headache but said it was not as bad. Because the headache was not as bad, after school at football practice the coaches allowed him initially to participate in contact practice. However, he developed a worse headache and they did not allow him to engage in any further contact practice that day.

 

On Friday, the plaintiff went to school indicating his headache was better. A varsity football game was scheduled for that evening. The plaintiff needed just a few quarters of play to earn his varsity letter. He suited up and rode the bus with the team. However, the coaches did not allow him to play.

 

On Monday, the plaintiff's parents asked him how his head felt and he said it was “okay.” He played in the junior varsity game that afternoon. Sometime during the first half, a teammate noticed a pain grimace on the plaintiff's face. He asked the plaintiff about it, and he said his head hurt. On the last play of the first half, the plaintiff was playing on “special teams” defending against a punt return. The plaintiff was a tackler, and after a tackle he went down but was not immediately unconscious. After a minute or two he made his way to the far end zone for the half-time huddle. A coach talked to the plaintiff for a few minutes as the team gathered. A few minutes into the huddle, the plaintiff collapsed, lying flat on his back after suffering a seizure and unconsciousness, less than 10 minutes after impact.

 

An ambulance picked him up, intubated him, and transported him to a nearby hospital. As the ambulance was driving away from the football field, the plaintiff's stepfather contended a coach asked him if the plaintiff had seen a doctor after his injury the week before. The stepfather was taken aback because they had not been instructed by the coaches to have the plaintiff cleared by a doctor. To them it was just a headache. No information about brain injury or what to look for had come home with the plaintiff during the week.

 

See: William L.E. Dussault As Gal For Brandon Schultz; Lane Phelan v. Anacortes School District & Anacortes High School, 1999 WL 68157 (Wash.Super.)  

 

 

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