Author: Michael

So I was speaking to a buddy of mine, Seth Price, a brain attorney, about the NFL head injuries cases. This recent public issue raises some really important contract issues, that law students and informed Americans all need to be aware of. Fraud vitiates consent in any contract. I should say if you can “prove it to the judge or jury.” In essence, if someone lies to you (conceals vital information, or deliberately misrepresents info), in order to obtain your signature, on say, an NFL union contract, a court can invalidate that provision of the contract you were lied to about, or the entire document.

So just being a really good injury lawyer is not always good enough. Sometimes a good contract lawyer, or business lawyer is needed to get your potential personal injury case to first base. Or, you just need an excellent injury attorney like Seth Price, who actually gets it. And Seth says that is the essence of what is happening in the NFL case. The players have a union contract. They are claiming the league lied and made public misrepresentations that there was a serious risk of brain injury and death, from playing football. As will be discussed, the players allege they were damaged from the misrepresentation, and thus, the provisions of the contract that shield the League from being sued, should be invalidated. The League is basically arguing that the Players assumed this risk, and were well paid (A person assumes any risk inherent in a sports activity, such as a football head injury, etc).  I really find this fascinating, and the rest of the story below will give this all even more context.

Former NFL players, and their family members, have taken the league to court over claims that the organization concealed the long term effects of concussions. The list of parties to the suit has grown to over 4,200 and is still growing. Many of the former players are dealing with dementia, depression or Alzheimer’s disease. Some players have even committed suicide. Others are worried about potential problems and want monitoring services, claiming that the league rushed them back into the game at their own peril. The suit must clear a major hurdle before proceeding. The NFL has argued that the suit should not be allowed to go forward, claiming that player grievances should be handled by the union contracts that govern disputes between the players and the league.

The players argue that the union contracts are inadequate. They claim that these contracts do not protect them from fraud or negligence by the NFL. They believe that the league hid the dangers of play related head injuries to protect the multi-billion dollar sports empire. The players believe that the league alone had the power to address this issue and that they instead chose to create a massive misinformation campaign designed at keeping players in the dark. Many are worried that the process will fade behind closed door should the NFL ultimately prevail on this point.

Arbitration in this case wouldn’t allow for public airing of evidence and testimony, and wouldn’t be reviewable by a higher court. Former U.S. Solicitor General Paul Clement has been hired by the NFL. David Frederick, a former assistant to the solicitor general, is representing the player. Frederick has appeared 30 times before the U.S. Supreme Court.

During the hearing held in April 2013, Frederick argued that federal court is the appropriate venue for the case. He went on to state that the NFL was guilty of fraud and negligence, specifically pointing the assembling of a “sham committee” to address head injuries. He also claimed that the NFL knowingly hid information from players on the risk of brain damage from playing the gladiatorial sport. Clement said that the NFL’s collective bargaining argument is only the first step of their defense. He stated that layer histories and other factors will be an integral part of their defense should the case proceed.

Kevin Turner, a former Philadelphia Eagle now battling Lou Gehrig’s disease, attended the hearing with a handful of other players. They have accused the league of concealing emerging science about brain injury risk associated with concussions. Researchers from UCLA and Boston University, in separate reports, claim to have found evidence of the degenerative brain disease chronic traumatic encephalopathy (CTE) in former players. Another report, published in JAMA Neurology claims that retired NFL players are more likely to have cognitive impairment and depression. These players are also more likely to show physical brain changes on an MRI scan. The NFL recently donated $30 million to the National Institutes of Health for research into the subject.

I wanted to thank Seth for cluing me in on the NFL brain injury issue and for showing us all a little more about how other areas of law can cross over into tort law, and what that can mean for your bottom line as both a practitioner, and a victim.   To learn more about Seth, give him a call at: 202-600-9400.

Resources:

NFL Brain Injury Panel a “Sham” According to Players

Should players be allowed to actually sue?

Brain Injuries blamed by suicidal player

In a breaking story: New Hampshire state officials said Wednesday that there is a possibility that eight patients may have been exposed to a rare and fatal brain disease. In what could turn out being one of the worst medical malpractice cases in recent times, we will have to wait and see what happens.

Officials said the exposure might have occurred due to surgery equipment that was used on a patient who was likely to have had the rare and incurable disease. According to officials in a news conference the patients that may have been exposed underwent brain surgery at Catholic Medical Center in Manchester, N.H. The operations occurred between May and August of this year.

The patients were notified of the possible exposure, according to officials. Officials stated that the surgical equipment was rented from Medtronic, a Minneapolis based company and may have been used on at least five other patients in other states, before officials knowing there may be contamination from the original patient. So this raises issues of liability of the manufacturer and all people in the chain of custody of manufacture to sales. This is in the public interests to spread the burden and increase a recovery if any.

However, the state of the law is also the case that one cannot sue for fear of an as of yet, present disease. The eight patients in New Hampshire and the five other patients from other states are not being named, according to officials. According to specialists, the first patient showed symptoms of Creutzfeldt-Jakob disease, when they underwent brain surgery in May, but it was not discovered until last month. The experts said that the standard methods of sterilizing surgical equipment before operations would not protect the surgical patients from this rare disease.

Health officials stated that the risk for the patients potentially exposed to the rare and deadly brain disease is extremely low, but after extensive expert discussion, the risk could not be entirely ruled out. Even minimal residues can survive being passed through incinerators, which is why it was determined the patients who were possibly exposed were notified.

According to the New Hampshire director of public health, Dr. Jose Montero said the patients had been provided with as much information as possible, and our sympathies are with all of the patients and their families. Dr. Montero stated that this is a difficult and confusing situation for the patients and their families, since they may be living with uncertainty for an extended amount of time.

The disease, Montero said can take years to develop and it is impossible to know whether the exposed patients will be affected by the illness, which eats away at the brain. According to officials, the eight New Hampshire patients range in age from their mid-30’s to their mid-80s. Due to privacy laws, health officials have not provided any other identifying information about the eight patients.

In any event, since Montero said the disease could take years to develop, these patients will probably suffer daily for the rest of their lives with this cloud over them.  But the fact of the matter is, it would be near impossible for them to recover for fear of a disease until they develop a disease that is causally connected to the exposure.

At least that is what they taught us in law school. But see “Recovery for Emotional Distress for Exposure to AIDS.” But in any event, a person would still need proof of exposure, and here, the facts show that the patients “may” have been exposed.  The damages appear to be too far attenuated to get a recovery here. If you want to learn more about brain injury law, contact Michael Ehline at (213) 596-9642.

In this treatise, Florida personal injury lawyer, Matt Dolman discusses the role physicians played in the recent NFL lawsuits. In 1994, the same year the Mild Traumatic Brain Injury Committee was established, professional football player Junior Seau was named NFL’s Man of the Year. Last Wednesday, May 2, 2012, Seau shot himself in the chest, taking his own life. It is believed that Seau was suffering from the enervating disease that deteriorates one’s frontal lobes, dictates neurological impulses and eventually leads to death, often by suicide.  The brain trauma he suffered from was almost certainly related to repeated blows to the head sustained over his NFL career.

Seau’s death has compelled many former NFL players to step forward and share their stories through lawsuits against the NFL. Past events have insinuated that Seau’s death is not an anomaly. Six former NFL players have died of abnormal causes including Andre Waters, Terry Long, Mike Webster, Shane Dronett, Dave Duerson, and Ray Easterling. The NFL is facing a serious concussion crisis, with hundreds of lawsuits filed over the past eighteen months against the league. But who is responsible? Is the league to blame for the epidemic of brain trauma that has recently come to ? The players? The coaches? The doctors? To reach a solution, understanding the doctor-patient relationship in the NFL is vital.

Many fans are under the impression that NFL doctors are the cream-of-the-crop; carefully selected by NFL teams to provide the very best medical attention to players, so their human investments can remain lucrative. Sadly, this is not always the case. Many believe doctors are paid a salary by the team; however, most team doctors actually pay the team hundreds of thousands of dollars themselves, to have rights as the team doctor.  They ultimately obtain the privilege to promote themselves as the official team physician. This is not to suggest that team physicians are questionable doctors, because many times they are in fact exceptional, but that’s not usually how they got the job.  Further, how well versed are these physicians in evaluating closed head injuries?  As a Florida traumatic brain injury lawyer, I have seen many physicians ignore obvious clinical signs of a brain injury and focus on the more obvious orthopedic ailments.

So who’s really monitoring the concussions on the sidelines? Is it a skilled expert, or the most qualified member of the medical team that paid for the rights to be there? Either way, it’s evident that the majority of doctors on the field lack proper training in managing concussions. There are various protocols for treating concussions, all currently based on expert opinions and rarely on scientific evidence. These guidelines state that it is acceptable to return an athlete back onto the field if symptoms are minimal and temporary.

Let’s put this into perspective. It’s the final quarter and the quarterback is viciously tackled. He finds it difficult to stand up and noticeably stumbles. The QB makes his way to the sideline and complains he has a headache but otherwise he feels normal and he wants to be put back into the game. Should he? Is the team doctor liable to thoroughly examine the player? The answer is no. If the athlete does not ask for medical assistance then he may never receive it. If he is downplaying his symptoms and wants to be tenacious and get back out on the field, then he may even go so far as to refuse to be evaluated. Keep in mind a concussed athlete does not make practical decisions due to the symptoms of the concussion itself. If the athlete is examined, the physician must decide whether the athlete is well enough to return to play.

The athlete may be given ibuprofen for the headache, but that’s where treatment stops. There is no educational information given to the player regarding their concussion, because the clock is running and the game must continue on. With no educational information presented, the athlete returns back to practice and on to next week’s game. For years, this is how NFL players suffering from mild concussions were able to remain playing and remain putting themselves at risk for additional head injuries. Now that these players have retired, and permanent long-term damages are being brought to light, we are finally able to acknowledge the seriousness of concussions and post-concussion syndrome.
Physicians are now aware that head injuries have cumulative effects and that it is not okay for a concussed athlete to ever return back into a game.

League guidelines for head injuries have been established and experts in the field of concussions are now stationed on the sidelines. Former athletes seeking damages for lost wages, pain and suffering, and medical treatment as a result of brain trauma continue in their legal battles with the NFL. Their cases question the patient-team-doctor relationship. The league cannot erase the faulty judgments they have made in the past regarding head injuries, but they can continue to support safety measures that prevent unnecessary brain injury to current players.

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Nuclear radiologists are beginning to use susceptibility weighted imaging (SWI) brain MRI protocol to detect damage that has been done to the brain. The SWI testing was first used by radiologists to determine hemorrhages in the brain that are caused during strokes, which could be missed using a conventional MRI.

The new testing that is being used will allow the radiologist to be able to identify even small lesions in the brain. This is brain damage that can be done by micro-hemorrhages, sheering or tearing of axons and defused axonal injuries.

Brain injury testing by many radiologists and physicians are using the susceptibility weighted imaging for their patients with mild traumatic injuries, along with diffusion tensor imaging to have the best results in viewing the extent of diffuse axonal brain damage and lesions.