Doctors key players in NFL concussion litigation
■ The fallout could mean an increased risk to physicians of being sued after treating concussions.
By Alicia Gallegos — Posted July 30, 2012
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A wave of litigation filed by more than 2,000 former National Football League players over how the league handled concussions is placing physicians at the forefront of the legal debate.
The players claim the NFL for years failed to warn about concussion risks and impose proper safety regulations, leading to long-term brain injuries among athletes. Legal experts say at the heart of the lawsuits is the medical science of concussions and the health professionals responsible for conveying such knowledge to players and the public.
Physicians “are going to play a significant role” in the litigation, said Travis Leach, an Arizona-based sports law attorney who counsels professional athletes in contract negotiations. “The crux of these cases is: What did medical professionals know historically about concussions, and what was the common medical practice 10, 20 years ago when these issues started arising?”
The litigation comes as states and sports leagues are enacting tougher regulations to reduce concussions. As of May, 38 states and the District of Columbia had adopted youth concussion laws. The majority of the measures require that an athlete be removed from play if he or she appears to have a concussion. The player also must be cleared by a licensed health professional before returning to play.
In 2009, the NFL adopted stricter policies on certain hits by players and revised its return-to-play policy. The league now says a player who experiences a concussion must not return to play or practice the day of his injury if he shows concussion symptoms. College, high school and youth teams have developed similar guidelines.
The increased scrutiny is leading to a shift in football culture that doctors should be part of, said Andrew Blecher, MD, a California-based family physician who specializes in sports medicine. He is also a team physician for an area high school and two community colleges. “The media coverage and the lawsuits that are coming, all of this is creating an opportunity for change,” he said. “Hopefully, primary care physicians are going to be more aware of what to look for. They need to know the law in their state, and they need to know what the current guidelines are.”
As of mid-July, 113 lawsuits had been filed against the NFL by former players and their families in federal and state courts. The suits generally are based on claims the NFL ignored medical research showing concussions were a significant factor in neuro-cognitive damage.
As part of the accusations, the plaintiffs have been critical of the NFL’s Mild Traumatic Brain Injury Committee, which was created in 1994 to study head injuries’ impact on players. The group was led by rheumatologist Elliot Pellman, MD, and included a neurologist, a neurosurgeon and a neuroradiologist. The lawsuits claim the committee published falsified findings that said no long-term, negative health consequences were associated with concussions sustained by NFL players.
NFL attorney Brad Karp said the plaintiffs’ accusations are baseless.
“The NFL has long made player safety a priority and continues to do so,” he said in an email. “Any allegation that the NFL sought to mislead players has no merit. It stands in contrast to the league’s actions to better protect players and advance the science and medical understanding of the management and treatment of concussions.”
Through an attorney, Dr. Pellman declined to comment. New York neurologist Ira Casson, MD, who worked on the MTBI committee, defended the committee’s work.
“You have to take the papers in the context of the time they were written,” he said. “The goal of the committee was to advance the science surrounding concussions in professional football and improve the health and safety of NFL players. I stand behind that the papers were good science.”
In 2010, Dr. Casson testified before Congress that there was not enough valid, objective scientific evidence at present time, to determine whether repeat head impacts in football resulted in long term-brain damage.
Dr. Casson and Dr. Pellman are not listed as defendants in the lawsuits. But attorneys say their work with the NFL will be a significant part of the cases. Dr. Casson said he was asked by the league to preserve all materials related to his time on the committee.
Plaintiff attorneys plan to seek testimony from former committee members and members of a successor committee, said Steve Marks, an attorney for the plaintiffs. The MTBI committee was disbanded and replaced with the NFL’s Head, Neck and Spine Committee, formed in 2010.
“At the appropriate time, we will seek to have discovery on both sets of physicians on the committees to show the contrast” among their findings, Marks said.
Medical testimony will be important
Expert medical witnesses are likely to take center stage during trial.
“There will be a lot of medical records on [players] and prior history,” said Howard Derman, MD, team neurologist and concussion specialist for the Houston Texans and director of the Methodist Concussion Center in Houston. “There will be radiologists, geneticists, neurologists, neurosurgeons. You’re talking about lots and lots of people.”
Medical experts who can speak on concussion literature and research may also testify, said Matt Mitten, director of the National Sports Law Institute at Marquette University Law School in Milwaukee. He said some of the questions to be explored are: Who treated an athlete, and at what point was that person permitted to play? Was the player honest about describing his injuries?
“You have a whole host of complicated issues in these cases,” Mitten said.
Dr. Derman said research about genetic predispositions to long-term brain problems also could enter the mix.
“If you can determine that an athlete has a genetic makeup that predisposes them [to long-term brain injuries], you could argue that this was a risk factor before they started playing football,” he said.
The NFL lawsuits, combined with heightened awareness of head injuries, place a heavier burden on primary care physicians to recognize concussions in their patients, said Robert Cantu, MD, co-director of the Center for the Study of Traumatic Encephalopathy in Massachusetts. Dr. Cantu is mentioned in the NFL suits as a concussion expert who “wrote harshly critical reviews” of the committee’s studies. His research is being used as part of the plaintiffs’ evidence against the NFL. Dr. Cantu is now a consultant for some NFL and NBA teams.
If doctors make a poor decision in the exam room, they could be held liable, Dr. Cantu said.
“What it’s going to do is put tremendous pressure on primary care physicians and pediatricians to be certain that they have been adequately trained in concussion management,” he said. “You can’t claim ignorance anymore. If you haven’t got the training, you shouldn’t be returning people to play.”
Emergency physicians and others who treat concussed athletes at hospitals have an increased liability risk, Dr. Blecher said.
“There are definitely a lot of primary care and ER physicians that are still unaware of what the most recent guidelines are,” he said. “Those are the ones that are most at risk, and they probably don’t know that they are at risk.”
A state law may prevent an athlete with a concussion from returning to play. But some laws don’t spell out which licensed medical professional should clear an athlete to return to play, Dr. Blecher said. “That’s the problem. We have these laws that you need written medical clearance, but we don’t establish what that means or who is allowed to give that clearance.”
Dr. Blecher would like to see state laws become more detailed about who should provide clearance.
As the NFL litigation continues, the message for physicians who treat an athlete with a concussion is to err on the side of caution, Mitten said.
“When in doubt, sit ’em out.”