Assessing Concussion Litigation and the Potential Issues

Sep 21, 2012

By Tom Gowen
The current concussion litigation involving the National Football League has raised awareness about these brain injuries as well as the causes and frequency of them occurring in youth and professional sports. While knowledge of brain injury has grown by leaps and bounds over the last twenty years, much is yet to be learned about the physiology of concussion. However, the role of sports in producing these injuries has become increasingly clear and should be addressed.
Football has garnered the most attention in the discussion of concussion and brain injury – probably rightfully so – but other contact sports have significant incidence of concussion including soccer, basketball, hockey and lacrosse. Gymnastics and cheerleading have also been responsible for a significant number of concussions. There are more than a million young men playing high school football, and one study found about half of them were experiencing concussions and over a third more than one. [1]Football has promoted, as an integral part of the game, hard hitting, leading with the head while blocking and returning to games within moments of suffering a concussion, often referred to as having one’s “bell rung.” Players trying to impress coaches or to remain in games for competitive reasons have ignored and denied symptoms that are now known to be the product of concussion such as headache, dizziness, temporary loss of consciousness, ringing in the ears, visual disturbances, loss of consciousness of time and place and loss of short term memory. Even worse, their coaches and, often times, ill-informed trainers and medical personnel encouraged concussed players to return to play when they risked the substantial harm of a second concussion.
Though football has a higher rate of concussion than other sports, because so many young athletes play sports like basketball and soccer rather than play football, the total number of concussions in these sports is comparable to those in football. For reasons not yet fully understood, the rate of concussions in girls’ basketball and soccer is significantly higher than among their male counterparts.
While there was a time when coaches, league administrators and trainers could hide behind a veil of ignorance about the nature of concussion, the way that it occurs and its potential long-term effects, that time is now past. Today, every coach, team doctor and trainer has access to information that should enable them to understand how concussions happen, the risks of returning players to games before a concussion is resolved, and the dangerous long-term effects. Every coach and administrator has access to tools to help them understand when a concussion has occurred and the knowledge that players should never return to games, regardless of the competitive interest, until a concussive injury has been medically cleared.
We now know that many young people engaging in contact sports, not just football, experience concussions more than once. Moreover, it’s known that a concussion is an injury to the brain that, when suffered by young players, can result in long-term consequences. However, we don’t know which ones will suffer the most severe effects of what is often called a mild to moderate concussion. We also don’t know which young players will be most vulnerable to re-injury when returning to competition before they are ready. Unfortunately, medical imaging such as MRIs and CT scans generally cannot identify most of the cellular level injuries that occur with concussions. A CT scan is an incredibly valuable tool for recognizing bleeding in the brain when the concussive injury causes a tear in a blood vessel inside the brain , but it cannot see damage to the axons and neurons that are bruised and torn in many concussions. MRIs generally don’t see this level of damage either, although the newest MRIs (3 Tesla) with diffusion tensor imaging is making strides in recognizing a lack of diffusion in injured areas of the brain.
Nevertheless, we know from autopsies on professional football players that the injuries are there and even worse that they appear to be progressive as a result of the “metabolic cascade” or chemical reactions that occur within the brain after a concussion. Because the full impact of these injuries sometimes does not manifest itself until years later, and the injury to the brain can be life altering, the need to be conservative in managing players with head injuries is critical. School and youth sports programs should be evaluating ways to change the rules and the enforcement of rules to prevent these injuries.
The legal system can play an important role in minimizing the lifelong impact of these head injuries by challenging negligent practices that lead to concussion. Lawyers representing victims of serious head injury in sports need to question whether the coaches or officials adequately enforced the safety rules to match the risk of injury prevented by the game. Particular concern should be paid to drills and practice games that are self designed and do not follow the rules of the game. Injuries occurring in these circumstances can form the basis for a negligence action when the coach did not design the drill or game to minimize the likelihood of brain injury.
Inadequate equipment may form the basis for an action. Unfortunately, when the injury is one caused by the abrupt stopping of motion such as tackling in football, colliding with another player in basketball or hockey, or by head to head contact between soccer players, helmets are usually incapable of preventing the movement of the brain inside the skull. When the hard bone of the skull is suddenly stopped in this type of impact the soft brain inside keeps moving until it collides with the stopped wall of the skull and then rebounds toward the opposite side, potentially causing laceration, bruising and shearing of axons in the brain. Good helmets can be helpful in spreading the load to the exterior of the skull and may be helpful in blunting the effect of an object striking the head such as a pitched baseball, but they do little if anything to prevent rapid movement, shearing and laceration of the brain inside the skull.
But where there is available equipment that may help to prevent these injuries such as wooden baseball bats, there may be a case of negligence to be made when schools and leagues persist in the use of metal bats which propel the ball so rapidly toward a pitcher that he may not have the time to react before the line drive strikes his head at high velocity and causes injury to the brain. Breakaway soccer goals can also be helpful in reducing the force of some impacts.
The safety rules of the game itself should be scrupulously enforced and violations penalized in order to prevent serious injury, and the failure to do so can be negligence. Certainly, the active encouragement of conduct designed to cause injury such as late hits of the quarterback or unnecessary roughness, should be consistently penalized. Generally, when an injury occurred in the usual course of a game or by accidental contact, the player was considered to have assumed the risk. But the risk is only assumed of playing within the rules of the game not subjecting oneself to brain injury from violations of those rules. Blatant safety rule violations leading to serious injury can and should form the basis of cause of action on behalf of the injured player. There is also the question of whether the usual rules of the games are sufficient to adequately protect players when we know that the risk of not doing so is brain injury with potential lifelong consequences. For example, is it really necessary for football linemen to start each play in a crouched stance and then propel their bodies head first into the player on the opposite side of the line? The evidence is showing that play-by-play repetition of head impacts between linemen have caused long-term concussive injury. Shouldn’t the rules be changed, perhaps to have the linemen start from a standing position and push each other to block? Should the impact of heading a soccer ball be studied to see if there is a correlation between heading and the disappointingly high number of concussions in that game, particularly among women and girls? Should cheerleading competitions eliminate the most high-risk pyramids? There are numerous recognizable examples of conduct that cause concussions in these games. Given the body of evidence that is developing regarding concussions governing bodies of sports should seek to identify the particular modes of concussive injury in their sports and then determine if modification to the rules could be made to reduce the brain injury hazard. The effort should be to modify the rules, enforce existing ones or provide better equipment in order to prevent concussions and other serious injuries. It may be negligent not to do so.
Leagues and coaches need to recognize that many players who have suffered a concussion are exceptionally vulnerable to re-injury once the break through concussion has occurred, so that preventative measures can be taken. They need to recognize that it’s not adequate to hold two fingers in front of the face of a player and put him back in a game if he says two. The availability of more definitive, inexpensive, diagnostic tools like ImPact neuropsychological testing, which more definitively tests the effect of the concussion on the cognitive capabilities of the athlete, is a useful tool for doctors and trainers A firm rule that no player can return to an impact sport before being medically cleared and performing up to baseline on ImPact testing would reduce second concussions and remove the potential for a coach’s competitive instincts from overcoming his good judgment. The legal system can help to put some teeth into good judgment by recognizing that coaches who put players with concussions back into a game to suffer a second impact are negligent.
The brain is so much more important than other parts of the body. A football player may accept that he will have to have his knees replaced or may not be able to walk on damaged ankles, but few will accept that they will be suffering symptoms similar to Alzheimer’s disease when they are in their forties or fifties. The coverage of concussion in football and the litigation involving the NFL will hopefully foster more caution among coaches and administrators in youth sports where far more young people compete and suffer these injuries than ever reach the professional ranks. Lawyers who have the opportunity to represent seriously brain injured players should think about how those injuries could have been prevented by reasonable safety measures and bring claims asserting negligence for the failure to utilize those methods. Greater safety will be the outcome if they do.
Tom Gowen is a partner at Locks Law Firm in Philadelphia, PA, where he focuses on personal injury cases involving head trauma. He can be reached at
[1] (See The Concussion Crisis, Carroll and Rosner, Simon and Schuster, 2011, for an excellent review of concussion in sports including the stories of athletes at all levels. The book contains a highly accessible explanation of the physiology of brain injury as well. In the opinion of this author this book should be required reading for all administrators and coaches of sports programs, teams and leagues regardless of level.)


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