It is important for athletes, their parents, and coaches to acknowledge a growing body of medical research suggesting the potential for brain injuries in sports. After all, it is “concussion season” according to a recent article in The Portland Tribune. Probably worth commenting about, since I’m generally known as a traumatic brain injury lawyer in Oregon, and am a board member of the Brain Injury Alliance of Oregon - a group of doctors, neuroscientists, lawyers, brain injury survivors and other caregivers that support brain injured people in Oregon and several other western states.
The article discusses the potential for injuries in sports in Oregon. While many of my colleagues nationally in the AAJ Brain Injury Litigation Group are handling a number of the individual player’s cases against the NFL, our office is not presently handling any because Portland doesn’t have a professional football team, and the retired players who may now live in Oregon are not yet making claims through our office. Hopefully, that means they are not hurt. There has been a lot of heated discussion amongst the brain injury lawyers nationally, that class action lawyers handling many of the NFL claims may not be settling the claims for enough money to adequately compensate some players’ individual losses. My hope is that if there are NFL players out there with serious personal losses, they have hired competent brain injury lawyers who are fully protecting their best interests.
The Portland Tribune article follows Portland State University linebacker Jake Woolley, and his doctor Laurie King, a neuroscientist at Oregon Health Sciences University. The article notes a number of things being tested by neuroscientists as they attempt to find a better way to detect traumatic brain injuries, which often will go undetected for days, weeks or even months, before becoming obvious according to the US Center for Disease Control “Heads Up” booklet for doctors. Since high-resolution neuroimaging (very little of which is available in Oregon) still does not detect 80% of brain injuries, alternative methods are being researched.
One method involves sophisticated instrument-measured balance tests.
Physicians have used basic balance tests in addition to very basic cognition tests (like “what year is it?”) on concussion patients for years, but that has mostly consisted of asking the athlete to walk in a straight line or stand on one foot. Few brain injured people have frank neurological deficits that would show up abnormal on a test like that, unless the person has one of the 20% of brain injuries with a frank bleed in the brain. As noted in the article, many athletes appear completely normal, but are abnormal in balance testing. Dr. King’s accelerometers measure those smaller balance differences. “They’re not really OK,” King says of athletes who appear healed but fail her tests. Despite the validity of such balance testing, we see insurance companies and defense doctors claim such testing is invalid in order to mislead jurors and even arbitrators.
Other measures of brain injury are being investigated by the military (blood markers) and other medical researchers (abnormal eye movement tests). Doctors in our cases have used abnormal eye movement testing for years in examining clients with brain injuries because it is considered one of the most highly accurate signs of brain injury. Despite it’s validity, insurers and their doctors have again dismissed it as meaningless or acted as though the idea of abnormal eye movement proving brain injury is a crazy thought. As you can see, there is a major disconnect between medical research (reality) and “insurance company rules” in assessing and litigating brain injury claims.
Objective criteria for measuring when an athlete has suffered a concussion and when a concussed athlete is ready to return to playing is critical, because relying on the athletes and coaches does not appear to be sufficient. The major problem with this is that if an athlete is returned to play while they still have a prior brain injury, they are susceptible to more extensive brain damage (called “second impact syndrome”), or death. While one brain injury is sufficient to cause permanent cognitive and behavioral changes, repeated injuries increases that risk. Even in the event the athlete appears to heal, and returns to get repeated traumatic brain injuries (usually referred to as “concussions”), many will progress to a condition called Chronic Traumatic Encephalopathy or “CTE.” It is due to CTE that several former athletes, including some NFL players have committed suicide, not understanding what is wrong with them as they face lives of significant cognitive and behavioral problems. CTE is a progressive degenerative disease of the brain found in people with a history of repetitive brain trauma, including symptomatic concussions as well as non-symptomatic impacts or injuries to the brain. In one NFL study, a quarterback who was sacked only one time during his NFL career was found to have progressed to CTE. For more on CTE, click here or here.
Also cited in the Portland Tribune article is Dr. Jim Chestnut of OHSU. Chesnut, Medical Director of OHSU’s Sports Medicine Program and the OHSU Concussion Program, sees about 4,000 head injuries a year. He notes that of these, approximately 10% of those injured in sports never recover and never return to play. This is slightly below the percentage of those people permanently brain damaged by car crashes, where approximately 15% of those injured never heal. This is due to the much higher mass of the vehicles colliding as compared to the weight of two bodies colliding as in sports.
What we do know is this - brain injuries are a different type of injury. They don’t just limit you physically like a muscle strain or a fractured bone. They change who you are, and what you can do. They change your relationships, and whether you want to interact with anyone. And, they subject you to serious long term consequences, including an increased risk of CTE, Parkinsons and Alzheimers. So, take a concussion seriously.
Sadly, there is nothing particularly unique about this time of year. It is concussion season every day. Our office continues to see life changing brain injuries call in throughout the year. Doctors who see people with brain injuries refer them to us for representation, because we understand the injuries and how they impact people. We do our best to help people maximize their cognitive and behavioral recovery, which is why we are one of few law firms recommended to brain injury survivors and their families by the Brain Injury Alliance of Oregon.