(Editor’s Note: Steven Pachman is a partner in Montgomery McCracken’s Litigation Department and a member of the firm’s management committee. He concentrates his practice on the defense of traumatic brain injury (TBI) cases, and regularly represents individuals and school systems in catastrophic sports injury matters arising out of alleged premature return-to-play decisions and other negligence theories in the sports’ context. His past and ongoing representations include a number of high-profile, nationally-publicized concussion and other TBI cases against NCAA member colleges and universities, high schools, other academic institutions, and various school personnel, including athletic trainers, coaches, physicians, and nurse practitioners. These cases involve catastrophically-injured football players and other athletes who allegedly sustained prior concussions and Second Impact Syndrome as well as players diagnosed with chronic traumatic encephalopathy (CTE) following a post-mortem autopsy of the brain. Pachman also regularly advises school officials and attorneys, risk managers, coaches, athletic trainers, athletic departments, physicians, and other health care professionals on institutional liability issues concerning sport-related concussions, Second Impact Syndrome, and other sport-related injuries. Because of his background, Pachman was selected for our regular interview feature.)
Question: How did you get into the sports law niche?
Answer: In 2005, a longstanding university client of my firm requested that I undertake an investigation following a catastrophic brain injury to one of its football players. Two years later, a negligence lawsuit was filed against our client and several of its employees, including its head Athletic Trainer (AT), and I served as lead defense counsel. Among other allegations, the suit claimed that the AT mismanaged the student-player’s earlier concussion and prematurely returned him to game play. The case ultimately settled and was regarded as a favorable result to my client in both the legal and scientific communities. Many concussion experts refer to the case as a landmark matter since it involved so many important issues of concussion safety that never had been litigated. The case also involved many of the country’s leading concussion experts.
After the case settled in 2009, I co-authored a “lessons learned” article with one of the leading concussion experts in the country, Dr. Kevin Guskiewicz. The article appeared in an NATA publication. The publicity from the article led to me to receive a number of inquiries from ATs, physicians, and schools on how to minimize risk in the concussion space. I also started receiving invitations to speak before colleges with top sports’ programs, Division I sports conferences, and AT organizations, such as the NATA, CATS, and EATA. I have focused my practice on both defending concussion cases and counseling in this area ever since.
Q: How long have you been involved in TBI cases, and how has litigating these kinds of cases changed since you started?
A: The first case I defended was in 2007. That was a case where the plaintiff was alleged to have suffered “Second Impact Syndrome” (SIS), a controversial medical phenomenon where the brain sustains a second injury prior to resolution of the first, resulting in catastrophic outcomes. These “SIS” cases are still being filed through today and include the same allegations of negligence that they did over ten years ago, namely failure to warn, failure to educate, failure to diagnose, and premature return to play.
Beyond these SIS cases, a new wave of litigation has surfaced – in the CTE context. The allegations of negligence in these cases include the same as in the SIS context, but in these new cases the negligence is alleged to have caused CTE and, in some cases, is said to be the cause of a plaintiff’s suicide. The science around CTE is quite young and until researchers reach consensus on the cause of CTE, I expect these cases to remain prevalent. My general strategy for defending these cases has remained the same throughout and begins with a thorough preliminary investigation, including an exhaustive round of witness interviews. This is followed by promptly retaining an appropriate team of experts to provide preliminary opinions on liability-related issues and causation.
Q: Concussions are so prevalent, why have we not seen more lawsuits?
A: Although concussions are reported with greater frequency today, awareness has led to better management and treatment of concussions. I attribute this partly to actions by organizations like the NATA, NCAA, and American Academy of Neurology (AAN). The NATA, for example, led by the efforts of AT Steven Broglio and his team of concussion experts, recently updated its Position Statement on the Management of Sport-Related Concussions. The NCAA has hosted a number of Safety in College Football Summits, stressing proper concussion diagnosis and management best practices and the importance of independent medical care. And the AAN has hosted an annual conference three straight years that is dedicated to sports concussion. As part of the AAN’s efforts, I have been asked to present at this year’s conference in July on personal and institutional liability considerations that health care providers face and must balance when making decisions about concussion care. Actions such as these not only are helping to promote the health and safety of the athlete, but perhaps having the additional effect of reducing concussion lawsuits.
Q: You have represented athletic trainers in the past. What were the circumstances?
A: In the event of a catastrophic outcome in the sports context an AT’s actions leading up to the ultimate injury are nearly always put under a microscope. In the case of a head or brain injury, an AT’s prior conduct is especially scrutinized. Most of my representations arise where a player has been diagnosed with an initial concussion (or allegedly should have been), and the player later suffers a more serious injury and long-term disability or sometimes death. Often, the theories of liability in these cases, simply put, are that the player never should have been on the field, in the rink, on the court, etc. considering the prior concussion or head injury. I have handled many of these so called “premature return-to-play” cases across the country and have done so in various sports. These can sometimes be tricky cases to defend since there’s no magic test to determine whether someone has sustained a concussion or has recovered from one. In addition, the AT is largely reliant on the player to be forthcoming about symptoms after an initial injury.
Q: What does a typical engagement look like when defending ATs and other school employees? Are they hiring you individually, or does the school district hire you?
A: In almost all cases that I have defended in which I have represented an AT, the AT’s school is also named as a defendant. In those cases, either the school’s insurance covers the AT-employee or the school agrees to pay for the defense of the AT. So, it would be the rare case where an AT is retaining me directly. I still advise my AT clients to be aware of and understand any applicable insurance policies and ensure the AT is covered personally in the event the AT is named in a lawsuit.
Q: At what point should an AT hire his or her own lawyer?
A: Although, as noted, the school often picks up the tab for the AT, in the event of a conflict of interest between the school and AT where both are named as defendants (where the defendants’ interests appear not to be aligned) the AT may have no choice but to secure separate counsel.
Q: Are ATs on the firing line any more or any less today, and why?
A: ATs are one of the easier if not the most obvious targets in a sports injury case. If the allegation is “premature return-to-play” following a prior concussion, the AT likely had a key role in the initial concussion assessment and/or diagnosis, taking the player through the return-to-play process, and/or the ultimate return-to-play decision. These are prime areas for plaintiffs’ lawyers to engage in second-guessing after an injury and attack in a legal complaint.
Q: Is there any risk management advice you would give ATs as they go about their job daily?
A: My number one tip to my AT clients is that they follow their school’s or organization’s concussion policy to the letter. Years ago, many schools and organizations didn’t have concussion policies and procedures in place. Today, most do, but I sometimes see policy non-compliance, which in the event of a bad outcome provides for an easy allegation of negligence. I also suggest to my AT clients that they stay current on the most current medical and scientific literature on concussions. This includes ensuring that their organization’s concussion policy is up-to-date on at least a yearly basis. I have conducted concussion policy “audits” for many clients to ensure policies are current.
