January 7, 2016, Trial News | The American Association For Justice

January 7, 2016, Trial News

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AAJ report highlights civil justice efforts to address concussions in athletes

Kate Halloran

photo of football players

AAJ has released a research report, “Concussions and the Courthouse 2015,” discussing the civil justice system’s role in drawing attention to and changing how head injuries are handled in contact sports. The report recounts how litigation against the National Football League (NFL) spurred a nationwide shift in how brain trauma is viewed and tells the stories of injured players, from professional athletes to teenage students.
 

AAJ has released a research report, “Concussions and the Courthouse 2015,” discussing the civil justice system’s role in drawing attention to and changing how head injuries are handled in contact sports. The report recounts how litigation against the National Football League (NFL) spurred a nationwide shift in how brain trauma is viewed and tells the stories of injured players, from professional athletes to teenage students. The report is also a call to action: Despite the progress made so far, more is needed to ensure that athletes are protected and that sports organizations and schools continue to take all head injuries seriously.

The Centers for Disease Control and Prevention (CDC) estimates that athletes suffer between 1.6 million and 3.8 million concussions annually. Concussions affect brain cells, and damage from a concussion may not be visible on an MRI or CT scan. The effects of these injuries—headache, memory loss, and confusion, among others—can be long lasting. Although the general public typically associates a concussion with loss of consciousness, this occurs in less than 10 percent of such cases. And repeated, “subconcussive” injuries—hits to the head that are not diagnosed as concussions—can be just as dangerous as one major concussive hit.

The risk of brain trauma for athletes—called “the silent epidemic” in the 1980s—has been known for more than 100 years. In the early 20th century, a slew of fatal football injuries led the president’s administration to intervene, and the National Collegiate Athletic Association (NCAA) was created, in part, to address safety concerns for student athletes. A 1902 report in The New York Times detailed how a young man received a blow to the head during a football game that went untreated, and he was found to have “a diseased condition of the brain” when he died six years later. But, despite decades of warnings and medical studies, major changes to how sports teams and organizations treat head injuries have not become mainstream until recently. This shift has been driven by the efforts of advocates and plaintiff attorneys, who use the civil justice system to bring about stricter safety and health care protocols for athletes and have raised public awareness about the dangers of head injuries, according to the report. The most well-known example is the tug-of-war with the NFL over protecting its players from head injuries and acknowledging the risk of chronic traumatic encephalopathy, a degenerative brain disease.

But professional athletes are not the only players at risk—college and high school athletes experience concussions at a rate of 6.3 and 11.2 per 10,000 “athletic exposures,” respectively. Among college athletes, female ice hockey players have the highest concussion rates.

The traumatic brain injury of one teenage athlete, Zackery Lystedt, led to the first state law addressing these issues in youth sports. In 2009, Washington state enacted its “When In Doubt, Sit Them Out” law, and every state except Wyoming has enacted similar legislation since. Common features of these laws include removing an athlete with a suspected concussion from play; training and education for coaches, athletes, and parents; and requiring clearance from a medical professional before allowing the athlete to return to play. These state laws vary in strength, but the report indicates that, overall, head injuries are being taken more seriously across the country.

The most significant gap in current laws is the lack of an enforcement mechanism—Pennsylvania is the only state to include one. The report recommends several actions that states can take to build on their existing laws, such as mandating parental notification of a head injury, expanding laws to cover middle school students, and requiring medical trainers at contact-sports events.

In a Dec. 15 press call about the report, AAJ researcher David Ratcliff discussed the importance of court cases: “This change in culture has been fueled by litigation. Decades of medical research led to incremental change, but litigation accelerated this. There are better protocols and risk management now, but there is still more that can be done.” And former NFL All-Pro defensive lineman Leonard Marshall talked about “the duty to help eradicate traumatic brain injury for kids and players, and to make a difference in the way kids play tackle football. Experts, attorneys, and athletes need to educate the public on safety measures.”

AAJ President Larry A. Tawwater said in a press release: “When medical research began to show the long-term impacts of repeated concussions, almost no one did anything. Worse, many, including the NFL, largely denied a problem existed. It was only when injured players took sports leagues, colleges, and school districts to court that this serious safety issue was acknowledged and addressed. If it weren’t for the civil justice system, the leagues would probably still be ignoring this issue, and players and their families would be suffering from more untreated long-term brain injuries.”

To read AAJ’s report, visit concussion.justice.org.