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Liability for Multiple Concussion Injury


INTRODUCTION

"Every year in the U.S. nearly 2 million people land in emergency rooms for concussions. Their symptoms are often confused with other minor ailments [resulting in] millions of undiagnosed brain injuries that can eventually cause long term damage.” This has been characterized as an “overlooked” or “silent” epidemic. Recent studies show that concussions are on the rise in the U.S. and not just among athletes. See: "Concussions: An Overlooked Epidemic."

 

Concussions are common. Hockey players, football players, contestants on Dancing with the Stars, children on playgrounds, drivers, bicyclists, members of the military or law enforcement, firefighters, cheerleaders, and more sustain concussions.

 

Although many concussions result in only mild traumatic brain injury – little more than a bump on the head – others cause much more severe brain injury. When the same person sustains one or more additional concussions, the cumulative injury can result in the more serious impairments of multiple concussion injury, second impact syndrome, or chronic traumatic encephalopathy (CTE).

 

Multiple concussion injury and the resulting impairments affecting professional athletes, particularly hockey and football players, have been featured in the news frequently and received considerable attention. On April 19, Ray Easterling, former Atlanta Falcons safety and lead plaintiff in the first of the mounting number of lawsuits against the NFL over concussion-related injuries, died of a self-inflicted gunshot wound, arguably as a result of the depression he suffered in connection with his concussion injuries. At the time of his death, 61 lawsuits had been filed against the NFL by more than 1,260 players, alleging that players suffered long-tem injuries because of the league’s negligence, carelessness, and/or intentional concealment of information about concussions and the associated risks of injury. See: Gary Mihoces, “Easterling’s death will impact concussion lawsuit,” USA Today, Apr 22, 2012.

 

One of those suits was filed by the family of Dave Duerson, former pro-bowl safety for the Chicago Bears, who also committed suicide. Duerson’s family donated his brain to the Boston University School of Medicine for research, which confirmed after a neuro-pathological review that Duerson had suffered from CTE. See: Todd Lighty, “Family of former Bear Dave Duerson sues over his suicide,” Chicago Tribune, Feb 23, 2012. Boston University researchers have also diagnosed CTE after examining the brains of former hockey players Reggie Fleming, Bob Probert, Derek Boogard, and Rick Martin. See: Nicholas J. Cotsonika, “Brain disease claims divide hockey doctors and Boston University researchers,” Yahoo! Sports, Nov 2, 2011; Nicholas J. Cotsonika, “NHL players to participate in ambitious concussion research project,” Yahoo! Sports, Apr 5, 2012.

 

A recent and ground-breaking study by the Center for Injury Biomechanics, Virginia Tech-Wake Forest University, shows that "youth football can produce high head accelerations in the range of concussion causing impacts measured in adults." See: Daniel, Rowson, Duma, "Head Impact Exposure in Youth Football," Annals of Biomedical Engineering (February 15, 2012). Similarly "new research shows that young children may be knocking each other down with more force than many realize," Special Correspondent Stone Phillips stated in his recent piece for PBS. "[The term 'g'] is the unit for measuring acceleration, in this case, acceleration of the brain caused by sudden impact from a hit on a football field…you can reach 5g by jogging or doing jumping jacks, 15 to 20g in a really aggressive pillow fight and 40g heading a soccer ball. Using [a football] helmet testing device [the study showed 80g as the measure of some football hits, and] 80g is a big hit in college football." See: "A Hard-Hitting Story: Young Football Players Take Big-League Hits to Head."

 

"Jury verdicts for brain injury litigation claims are on the rise and can range in the $10-$16 million. With so much at stake, it is essential for both plaintiff and defense attorneys and in-house insurance and hospital professionals to remain abreast of all that is happening in the brain injury litigation landscape…it is essential for outside counsel to learn how to detect mild to moderate traumatic brain injury, understand subtle nuances and wade through sophisticated medical terminology." See: Brain Injury Litigation Summit.

 

 

CONCUSSION AND BRAIN INJURY

The Centers for Disease Control (CDC) estimated that 1.7 million people sustain a traumatic brain injury each year, and that about 75% of these injuries are concussions. A traumatic brain injury (TBI) is caused by “a bump, blow or jolt to the head or a penetrating head injury that disrupts the normal function of the brain,” but blows or jolts to the head do not always result in a TBI. The CDC explains that the severity of a TBI may range from “mild,” defined as “a brief change in mental status or consciousness” to “severe,” defined as “an extended period of unconsciousness or amnesia after the injury.” The blows and jolts resulting in traumatic brain injury can be attributed to a number of causes: 35.2% are due to falls, 17.3% to motor vehicle accidents, 16.5% to the head being struck by or against something, 10% to assault, and 21% are due to miscellaneous other or unknown causes. See: The Blue Book Fact Sheet for Traumatic Brain Injury in the United States (.pdf) from the CDC.

 

The term “concussion” can be defined in a number of ways: as “the direct effect of physical force on the nerve cells, paralyzing or inhibiting their function,” or as “a reversible traumatic paralysis of nervous function” or as “a clinical diagnosis applied to a state of disordered brain function resulting from and following immediately on a head injury, characterized by a disturbance of consciousness usually lasting for only a few minutes, but occasionally for a few hours or longer, and commonly proceeding to complete recovery, except that when consciousness is completely lost, some loss of memory may persist for the moment of traumatic impact and the events leading up to it.” See: 5 Attorneys Medical Advisor §36:56 Concussion – Introduction. For a detailed discussion of the medical aspects, such as terminology, symptoms, diagnosis, treatment, and prognosis see in this report “Medical: Multiple Concussion Injury; Second Impact Syndrome.”

 

Any person who sustains a head injury and experiences any signs or symptoms of concussion should consult a physician. The physician can evaluate whether the injury is a concussion and if so, the level of severity of the concussion. The physician can also determine whether there are any additional or more serious aspects to the brain injury. Even when a concussion does not appear serious, patients generally are advised to take precautions over the next several days, including taking the following steps:

  • Having a reliable person monitor them or keep them under observation for a minimum of 12 hours
  • Avoiding the use of any pain medications that are stronger than those available over-the-counter
  • Abstaining from alcohol for several days after the injury

 

See: 5 Attorneys Medical Advisor §36:59 Concussion – Assessment; Hospitalization.

 

Many concussion patients develop a cluster of symptoms that are known as post-concussion syndrome (PCS). These can be vague and often persistent; they also can be debilitating. Symptoms of PCS vary among individual sufferers, but the range of symptoms include somatic, mood, behavioral, and cognitive symptoms. Management of PCS must be individualized and aimed at alleviating specific PCS symptoms, as there is no general treatment for the syndrome. Some sufferers require a multidisciplinary form of treatment that includes social services, mental health services, occupational therapy and drug therapy. See: 5 Attorneys Medical Advisor §36:64 Concussion – Post-concussion syndrome (PCS) – Overview.

 

Persons who sustain more than one concussion often suffer cumulative effects from these multiple concussions, including cumulative neuropsychological deficits. See: Traumatic Brain Injuries, 72 Proof of Facts 3d 363, §5. The cumulative effects may not only increase the severity of the symptoms these individuals experience and the length of their recovery periods, they may also make these individuals more likely to sustain future concussions. One of the less common, but more severe, effects of multiple concussions is the possibility of suffering second impact syndrome. This occurs when a person recovering from one concussion sustains a second concussion while still experiencing symptoms of the earlier injury. See: 5 Attorneys Medical Advisor §§36:60 to 36:61. Second impact syndrome is very serious and can be fatal.

 

The severity of second impact syndrome is one reason why a victim of concussion should not return to any contact activity until all of his or her symptoms are resolved. See: Kristina M. Gerardi, Tackles That Rattle the Brain, 18 Sports Law J. 181 (Spring 2011). When an athlete returns to play too early, the risk of complications associated with a concussion increases. An athlete should not return to play until he or she is completely asymptomatic. See: Traumatic Brain Injuries, 72 Am. Jur. Proof of Facts 3d 363.

 

 

CAUSES OF ACTION INVOLVING MULTIPLE CONCUSSION INJURY

Concussions can result from a number of different causes, under a variety of circumstances. As a result, litigation involving multiple concussion injuries can occur under various causes of action.

 

Negligence

 

Personal injury negligence actions probably are the most common types of actions that involve multiple concussion injuries. This type of litigation may arise in a variety of settings, such as automobile accidents, slip-and-fall accidents, or sports injuries. As in all negligence actions, the plaintiff must satisfy the prima facie elements of duty, breach of duty, injury resulting from the breach, and damages that are proximately caused by the breach. See: Am. Jur. 2d, Negligence §§71 to 131.

 

After the existence of a legal duty owed by the defendant is established, the appropriate standard of care the defendant must exercise in fulfilling that duty must be determined before a possible breach of duty can be evaluated. The general standard of care in a negligence action is that the defendant must act as a reasonably prudent person of ordinary prudence would act in the same or similar circumstances. If the defendant has more skills, knowledge, training or experience than an ordinary person, the applicable standard is a heightened standard that is consistent with the defendant’s superior or specialized skills, knowledge, training or experience. See: Traumatic Brain Injuries, 72 Proof of Facts 3d 363 §13.

 

A high school football coach, for example, was held to the standard of a reasonable state-endorsed football coach in a negligence suit involving a football player who suffered a head injury during a game. The court determined that the standard of care for such a defendant at the time of the injury was to (1) be familiar with the features of a concussion, (2) evaluate an athlete who appeared to have suffered a head injury for symptoms of concussion, (3) repeat the evaluation at intervals before permitting the athlete to return to play, and (4) make a determination, based on the evaluations, of how serious the injury was and whether the athlete should be allowed to return to play or should be removed from all contact pending a medical examination. Cerny v. Cedar Bluffs Junior/Senior Public School, 262 Neb. 66 (Neb. Jun 29, 2001), appeal after new trial, 267 Neb. 958 (Neb. May 07, 2004).

 

Even when a breach of duty has been established, the defendant’s negligence must be a proximate cause of the plaintiff’s concussion injury for the plaintiff to recover. Although health care providers were found to be negligent when they failed to accurately diagnose a child who suffered a head injury in a fall from a hayloft, treating him for concussion but failing to discover that he had suffered a fractured skull, the court found that their negligence was not a proximate cause of the injuries the child sustained as a result of the fall. Gregory v. Cortland Memorial Hosp., 21 A.D.3d 1305 (N.Y.A.D. 4 Dept Sep 30, 2005).

 

Proximate cause may be difficult to prove in some sports injuries. Professional football players are likely to encounter this challenge in several ongoing lawsuits against the NFL for cumulative cognitive damage resulting from multiple concussions. To prove causation, it generally is necessary to prove that the injury would not have occurred “but for” the negligence. See: Am. Jur. 2d, Negligence §§409 to 424. It is likely that the NFL will argue that other causes may have contributed to the players’ cognitive damages, although players are likely to counter this argument by arguing that the NFL’s failure to warn players of the risks of long-term injury need not be the exclusive cause of their cognitive decline, it only needs to be one cause. See: Joseph M. Hanna, Daniel Kain, NFL’s Shaky Concussion Policy Exposes The League To Potential Liability Headaches, 28-FALL Ent. & Sports Law. 9 (Fall 2010); Daniel J. Kain, “It’s Just a Concussion”: The National Football League’s Denial of a Causal Link Between Multiple Concussions and Later-Life Cognitive Decline, 40 Rutgers L.J. 697 (2009).

 

Medical Malpractice

 

All the standard elements for a medical malpractice action must be present for a physician or other health care provider to be found liable for malpractice in a situation involving multiple concussions. These elements include the existence of a legal duty (i.e., there must be a physician-patient relationship), a breach of that duty (i.e., the physician failed to satisfy the applicable standard of care), and the breach was the proximate cause of an injury to the patient, resulting in damages. See: Malpractice: diagnosis and treatment of brain injuries, diseases, or conditions, 29 A.L.R.2d 501.

 

A patient who brought medical malpractice claims against two doctors, a health center, and a physician’s assistant could not demonstrate that the complications he experienced after he suffered a head injury on the job were the proximate result of the alleged negligent acts of the health care providers. The patient failed to follow instructions for a follow-up visit after his initial examination and treatment at the health center, despite reminders, and failed to keep either an appointment for a CT scan or an appointment for an electroencephalogram, both made for him by a neurologist who examined him when he eventually returned to the health center after experiencing continued headaches. Several days after the missed appointments, the patient received emergency treatment at another health care facility, requiring surgery, and he continued to experience headaches. The court found that there was no evidence that earlier diagnosis or treatment would have prevented the need for surgery, and that even if the patient could show negligence in the actions of the defendants, he could not demonstrate that the alleged negligence was the proximate cause of his injury. Thomas v. Washington Industrial Medical Center, Incorporated, 187 F.3d 631 (C.A.4 (Md.)) Jul 19, 1999 (not designated for publication).

 

Products Liability

 

Manufacturers of athletic equipment are often targets for products liability claims involving concussion injuries. Some of the football players bringing highly publicized lawsuits against the NFL have also made claims against helmet manufacturers. See: Todd Lighty, “Family of former Bear Dave Duerson sues over his suicide,” Chicago Tribune, Feb 23, 2012. The number of products liability claims against the makers of all types of athletic equipment has increased over the last few years. See: Cause of Action for Failure to Warn of Defective Athletic Equipment, 49 Causes of Action 2d 809; Proof of Defective Design or Manufacture of Bicycle Helmet, 124 Am. Jur. Proof of Facts 3d 447.

 

Products liability claims involving concussion or head injury have also been brought against the makers of other products, such as seat belts or air bags. An injured motorist brought a claim for a defective seat belt locking mechanism in a case in which the seat belt was secured before the accident, it was not secured after the accident, and the motorist suffered a head injury in the accident. Brown v. Borruso, 238 A.D.2d 884 (N.Y.A.D. 4 Dept. Apr 25, 1997). Plaintiffs unsuccessfully brought an action against an automobile dealer for misrepresentation, in which they alleged the salesperson had told them that a vehicle with dual air bags was safer for children than a competitor’s vehicle with only a driver’s side air bag, and their child sustained a head injury after the air bag deployed in a collision. The salesperson’s statement was found to be a statement of opinion, rather than a misrepresentation of material fact. Chandler v. Gene Messer Ford, Inc., 81 S.W.3d 493 (Tex.App. Eastland Jul 03, 2002), rehearing overruled (Aug 22, 2002), review denied (Aug 28, 2003).

 

False advertising claims have also been made against helmet manufacturers. See: Riddell, Inc. v. Schutt Sports, Inc., 724 F. Supp2d 963 (W.D.Wis. Jul 14, 2010) (advertising claims for football helmets); Practising Law Institute: Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series 275 (March 21, 2011) (advertising of a hockey helmet).

 

Workers Compensation

 

If an employee sustains a concussion in a work-related injury, workers compensation benefits may be available. See generally: 82 Am.Jur.2d, Workers’ Compensation §§50 to 83. When the employee has suffered multiple concussions, though, it may be difficult to prove that the cumulative damage is caused by the work-related injury.

 

Retired athletes, for example, may face challenges in proving that cumulative cognitive damage is attributable to work-related concussions. When the employer can argue that alternate risk factors or causes for the cognitive damage are probable, the court may need to consider dual causation issues. See: Michelle L. Modery, Injury Time-Out: Justifying Worker’s Compensation Awards to Retired Athletes With Concussion-Caused Dementia. 84 Temp.L.Rev. 247 (Fall 2011).

 

A professional soccer player successfully made a workers’ compensation claim against his former team. The court agreed with the heavy weight of the expert medical testimony that the claimant’s disability was due to multiple concussion injuries that were causally related to his pre-injury employment, and that because of these injuries he could not return to employment as a professional soccer player and was entitled to workers compensation benefits. In the Matter of Josh M. Gros, Claimant v. D.C. United, and Great Divide Insurance Company, Employer/Carrier, 2010 WL 2379347 (D.C.Dept.Emp.Srvs. Mar. 10, 2010) (not designated for publication).

 

Disability Benefits

 

Other theories of liability that may involve multiple concussion injuries include disability benefits claims under social security or veterans benefits or under ERISA plans. Proving causation is likely to be difficult in this context, too. See for example Garrison v. Shineski, 2011 WL 6005212 (Vet.App. Dec 02, 2011) (not designated for publication) (affirming a denial of benefits for migraines and other headaches where the evidence indicated that the headaches were preexisting conditions not causes or aggravated by the appellant’s military service); Maselter v. Astrue, 2008 WL 4527828 (D.Minn. Sep 29, 2008) (not designated for publication) (denying social security disability benefits when the court found that the opinion of the plaintiff’s doctor that she was disabled from engaging in gainful employment because of cognitive disorders secondary to multiple concussions was not entitled to controlling weight because it was not well-supported by other medically acceptable evidence).

 

In a claim for benefits under an ERISA plan, where the participant’s medical evidence showed subjective complaints of dizziness and memory loss, but some objective evidence also was presented corroborating some of the participant’s complaints and supporting the provisional diagnosis of brain stem contusion made by his doctors, and also supporting their conclusions that the participant was unable to work, the plan administrator’s decision to deny benefits was not supported by substantial and concrete evidence. Given the plan administrator’s dual role as insurer and plan administrator, the denial of benefits was arbitrary and capricious and an abuse of discretion, and the claim was returned for further review of the medical testimony. Bell v. Prudential Ins. Co, of America, 2007 WL 781323 (W.D.La. Feb 12, 2007) (not designated for publication).

 

DEFENSES

Under some circumstances, even when a serious injury with provable damages has occurred, affirmative defenses may protect the defendant. The defense of contributory negligence may bar a plaintiff from recovering any damages. A defense of comparative negligence may reduce the amount of damages that the defendant – and the defendant’s insurer – may have to pay. The doctrine of assumption of the risk also can preclude a plaintiff’s recovery for any injury attributable to the risk assumed. See generally: 57B Am Jur. 2d, Negligence §§759 to 1095.

 

Comparative Fault/Contributory Negligence

 

The defense of contributory negligence, in jurisdictions that still recognize it, may bar a plaintiff from recovering any damages. Contributory negligence can be defined as a want of ordinary care on the part of the person injured, under circumstances in which this want of care combined with the defendant’s negligence and contributed to the injury, as a proximate cause of injury, without which the injury would not have occurred. See generally: 57B Am Jur. 2d, Negligence §§797 to 953.

 

The defense of comparative negligence may reduce the percentage of the total damages for which the defendant is liable. Under this defense, a percentage of negligence is attributed to each party whose negligence proximately caused the plaintiff’s damages. If the percentage of the plaintiff’s negligence is no more than the combined percentage attributed to all of the defendants, the plaintiff can recover the applicable percentages. See generally: 57B Am Jur. 2d Negligence, §§954 to 960.

 

Contributory negligence and comparative negligence are affirmative defenses, which the defendant must plead. For example, in a situation in which a customer may have engaged in negligent conduct while shopping, before being hit by falling plastic bins, the defendant’s failure to plead contributory negligence as an affirmative defense prevented the defendant from receiving the full benefit of that defense. Dupont v. Fred’s Stores of Tennessee, Inc., 652 F.3d 878 (8th Cir. (Ark.) Aug 30, 2011). Further, the party that raises the defense has the burden of proof with regard to it. Moffitt v. Sewerage & Water Bd. Of New Orleans, 40 So.3d 336 (La.App. 4 Cir. May 19, 2010).

 

Assumption of Risk

 

To successfully avoid liability by claiming assumption of the risk, the defendant must show that the injured party was more than just careless. The defendant must show that the plaintiff made an intentional, voluntary and deliberate decision to expose him or herself to a specific danger and that the plaintiff knew and fully understood the specific risks associated with the danger. See: 57B Am Jur. 2d, Negligence §765.

 

Under the theory of assumption of the risk, even a bystander at an athletic event may be deemed to have assumed the risk of injury from the event. For example, a bystander with no intensive knowledge of baseball was found to have assumed the risk of being struck by a baseball bat when she voluntarily entered an on-deck area in which players swung bats while warming up, since the risk was obvious. Roberts v. Boys and Girls Republic, Inc., 51 A.D.3d 246 (N.Y.A.D. 1 Dept Jan 08, 2008), aff’d, 10 N.Y.3d 889 (N.Y. Jun 05, 2008).

 

 

Malingering

 

Malingering can be a possible defense to a claim for disability benefits, or a factor to be considered in determining the appropriate level of benefits payable. Malingering occurs when a person who is motivated by gain deliberately invents or exaggerates symptoms. See: 2 Attorneys Medical Advisor, Malingering §22:93. It can be very difficult, however, to prove malingering in cases of head injury. See: 5 Attorneys Medical Advisor §36:70, Concussion—Post-concussion syndrome (PCS)—Malingering and its detection; Frank R. Sparadeo, Malingering Tests: What They Are, What They Are Not, 2 Ann.2004 ATLA-CLE 2313 (2004).

 

Release

 

If the injured party executed a release of liability before a concussion injury occurred, recovery for the injury may be barred. A release is considered a contract, and thus its validity and scope is governed by principles of contract law. See: Am. Jur. 2d, Release §7.

 

For a release to be valid, the defendant generally must show that the plaintiff had legal capacity to execute a release and voluntarily did so. The terms of the release must be specific and definite enough to permit the nature and extent of the parties’ obligations under the release to be determined. A release’s terms generally are strictly construed. In some circumstances, a release may be deemed to violate public policy and thus is void. See: 57A Am. Jur. 2d, Negligence §43, Agreements Exempting from or Limiting Liability; Generally; Validity of release of prospective right to wrongful death action, 9 A.L.R.3d 1232.

 

Immunity

 

Some defendants may be protected from liability for conduct involving concussion injuries under a doctrine of immunity. Public officials and other public employees may be shielded against liability for acts within the scope of their authority by sovereign or official immunity. See: Restatement (Second) of Torts §895D. Specific statutory immunities under state laws may also protect specified public entities and their employees.

 

Police officers generally are protected from liability for head injuries resulting from the use of force within the scope of the employment. This protection does not extend to injuries that occur while an officer is acting in a private capacity. Nuens v. City of Columbus, 303 F.3d 667 (6th Cir. (Ohio) Sep 12, 2002), on remand, 275 F.Supp.2d 894 (S.D.Ohio Feb 11, 2003).  The shield of immunity also does not protect officers who cause head injuries while acting with unreasonable or excessive force. Nitsch v. City of El Paso, 482 F.Supp.2d 820 (W.D. Tex. Feb. 26, 2007); Farrington v. City of St. Paul, 2011 WL 843913 (D.Minn. Mar 08, 2011) (not designated for publication).

 

State laws may grant immunity to public entities and their employees for injuries, including concussions, that occur in connection with hazardous recreational activities. For example, recreational immunity protected a power company from liability for a concussion and other injuries sustained by a minor riding a motor bike on land over which the power company owned an easement. Stanton v. Lackawanna Energy, Ltd., 951 A.2d 1181 (Pa.Super. Jun 23, 2008).

 

 

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