Monthly Archives: December 2012

Blog Update – What a Year!

2012 was an amazing year for  increasing concussion awareness nationwide.  Over the past year, a vast amount of research has been published that has woken up America to the dangers of concussions. Concussions are in the news now more than ever, which has served to educate the public about the need to take proper precautions when dealing with head injuries. 

In Florida, meanwhile, the effort to pass youth concussion legislation was successful after over a year of tireless work. 2013 and the years to come will be safer years for Florida youth athletes thanks to this law. In Miami-Dade County, the ImPACT testing program that Countywide Concussion Care enabled has been a tremendous success. High school athletes in public high schools have greatly benefitted from having a greater awareness of concussions and being under the care of proper medical professionals. The program has become firmly established in the Miami-Dade County public high school athletic system.  It will continue to provide testing and a support system for Miami-Dade public school athletes into the future. Broward County also agreed to implement a countywide baseline testing program for its high school athletes.

As for me, I am ecstatic that I am able to write all that I have just written above. I know that I have come so far from when I was a high school freshmen, doing all that I could to get through each day with my third concussion. Never would I have thought that I would have spread concussion awareness the way that I have. However, I am not satisfied, for there is more to be done and more athletes, coaches, trainers, and parents that need concussion education. In 2013, I will continue to do what I can to teach people about the dangers of concussions and how to avoid them. I wish everyone a healthy, happy, and concussion-free new year.  Please write and let me know about your experiences with concussions and any interest you may have in helping to spread the word about concussion awareness, prevention, testing or legislation.

Concussion Liability Costs May Rise, and Not Just for N.F.L.

By 
Published: December 10, 2012

As the N.F.L. confronts a raft of lawsuits brought by thousands of former players who accuse the league of hiding information about the dangers of concussions, a less visible battle that may have a more widespread effect in the sport is unfolding between the league and 32 of its current and former insurers.

The dispute revolves around how much money, if any, the insurers are obliged to pay for the league’s mounting legal bills and the hundreds of millions of dollars in potential damages that might stem from the cases brought by the retired players.

Regardless of how it is resolved, the dispute could hurt teams, leagues and schools at all levels if insurers raise premiums to compensate for the increased risk of lawsuits from the families of people who play hockey, lacrosse and other contact sports.

The N.F.L., which generates about $9 billion a year, may be equipped to handle these legal challenges. But colleges, high schools and club teams may be forced to consider severe measures in the face of liability issues, like raising fees to offset higher premiums; capping potential damages; and requiring players to sign away their right to sue coaches and schools. Some schools and leagues may even shut down teams because the expense and legal risk are too high.

“Insurers will be tightening up their own coverage and make sports more expensive,” said Robert Boland, who teaches sports law at New York University. “It could make the sustainability of certain sports a real issue.”

The N.F.L. contends that the insurers, some of whom wrote policies in the 1960s, have a duty to defend the league, which has paid them millions of dollars in premiums. The question for the N.F.L. is not whether the insurers are required to help the league, but rather what percent of the league’s expenses each insurer is obliged to cover.

The 32 insurance companies have varying arguments against the league. Some wrote policies for a limited number of years and contend their obligations should also be limited. Others contend they wrote policies for the N.F.L.’s marketing arm — for licensing disputes, for example — not the league itself.

A few of the companies went bankrupt or merged with rivals. Some insurers wrote primary policies that covered up to the first $1 million of claims; the rest insured obligations in excess of that amount.

Creating a formula for how to apportion liability will in some cases depend on the broader case between the league and its players now in federal court in Pennsylvania. If the N.F.L. persuades the judge to dismiss the case, the league will be left trying to recoup its legal costs from the insurers. If the judge allows the players’ case to proceed, the definitions of when, how and whether a player’s concussions led to his illness will become critical in shaping the insurers’ exposure, and could take years to sort out.

“This is baby step 1 in the process for everyone figuring how deep in the soup they are,” said Christopher Fusco, a lawyer who has worked on similar insurance cases but is not involved in the N.F.L. litigation. “Baby step 2 will be to figure out the facts.”

Fusco and other lawyers said the facts would largely come from the underlying suit between the league and the more than 3,000 retired players, including determining when the players sustained the head trauma and their injuries. This will probably be a long process because many of the retired players in the underlying suit, some of whom are now having memory loss, played decades ago, when concussions were often undiagnosed or not recorded.

Many of the insurance companies named in the suits declined to comment, citing the continuing litigation. The N.F.L. also did not comment.

The two-tiered battle between the league and its former players and insurers echoes the litigation stemming from asbestos claims because both cases center on long-tail claims, or injuries that could take years to manifest themselves.

 

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One of the critical points of contention in those cases was how to define an occurrence to determine an insurer’s liability. In the context of the N.F.L. case, the question will be whether a player’s injuries should be treated as a single claim or a series of claims based on the number of concussions he received or the number of seasons he played.

“This is an issue that gets to the crux of asbestos and environmental litigation,” said William M. Wilt, the president of Assured Research, an insurance advisory firm. “If an occurrence is defined as each player and each season he played, you could hit the policy limits multiple times.”

The current case, though, is far smaller than the asbestos cases because the potential plaintiffs are limited to the number of former pro football players. The effects of the legal wrangling, though, may reverberate throughout the sports world regardless of how the retired players do in court.

Fearful of future lawsuits, insurers may start raising premiums or excluding concussions and other injuries from their policies not just for the N.F.L., but also for hockey and lacrosse and other contact sports. As information about the link between head trauma and long-term injuries has grown, coaches, athletic directors and others will have a harder time claiming they did not know of the connection if they are named in lawsuits.

“A common misconception is that no one’s going to sue their youth league or nonprofit, but that’s not the case,” said Dan Pullen, who runs an insurance brokerage in Fort Worth that specializes in policies for teams, players and leagues. “Maybe the league isn’t negligent, but there might be $50,000 in legal claims” for a lawyer to chase.

The cases against the N.F.L. are likely to be the most explosive because of the news media spotlight and because so much money is at stake. The players are also more organized than, say, collegiate players, who do not have a union. Nevertheless, there is no shortage of plaintiffs’ lawyers willing to represent former players.

“The handwriting is on the wall, there’s no question,” said John Kircher, a law professor at Marquette University who specializes in the insurance industry. “Insurers will look at the dangers and might look at increasing premiums, and the insurers and the insured will ask whether the game is worth a candle.”

Kircher and other experts say they expect the courts to force the league’s primary insurers to at a minimum pick up the N.F.L.’s legal fees, which are already in the millions of dollars.

The larger issue for the courts will be to decide whether the primary insurers will have to carry more of the burden than the insurers who wrote the excess policies, which are policies that cover claims beyond the scope of primary policies. Because insurance laws vary from state to state, the answer may depend on where the cases are tried, and here, the insurers may have the upper hand.

New York law is thought to be more favorable to insurers. In August, Alterra America Insurance, which wrote an excess liability policy for the N.F.L., sued the league in State Supreme Court in New York. Alterra said it was not liable for injuries occurring on the field. In its complaint, Alterra said it chose New York as the venue for the case because the N.F.L. has its headquarters there.

The league responded by suing 32 insurers, including Chartis Specialty Insurance Company, Fireman’s Fund Insurance Company and several subsidiaries of Travelers, in State Superior Court in Los Angeles, arguing that California was the right venue because, among other things, it has 3 N.F.L. teams and has hosted 11 Super Bowls, and N.F.L. Properties, the licensing unit of the league, was incorporated there.

California law is also considered friendlier to policyholders, insurance specialists said.

But in late November, the court said that the N.F.L. was “selective and tactical” in choosing California and ruled that New York was the better venue for the case. The judge, John Wiley, did not dismiss the case, but said he wanted to see what happened in New York first.

“The superfluous effort is not simply wasteful: it also poses the added threats of confusion and inconsistent results,” Wiley wrote in his decision. “It is better to streamline and to simplify.”

Images of Brain Injuries in Athletes

http://www.nytimes.com/interactive/2012/12/03/sports/images-of-brain-injuries-in-athletes.html?smid=tw-nytimes

New Study Links Athletes’ Repetitive Head Injuries to Degenerative Brain Disease

Audio available by clicking the source “PBS” below

Transcript

JEFFREY BROWN: How tough is too tough when it comes to sports and brain injuries? It’s an issue we have followed over a number of years. Today, there was new data to chew on.

Week after week, the big hits keep attracting big TV audiences to professional and college football. But concerns over head injuries in football and other sports have also continued about a connection between repeated blows and a degenerative brain disease known as chronic traumatic encephalopathy, or CTE.

The latest evidence comes from a new report from BostonUniversity that’s been published in the scientific journal “Brain.” The four-year study examined brain autopsies of 85 male donors ranging from age 17 to 98. It included football players at various levels, boxers, hockey players and a group of veterans.

They have found evidence of CTE in 68 cases, almost all of them athletes. The football players included linemen, running backs and tight ends who had received repeated hits throughout their careers. One was the late John Mackey, profiled with his wife, Sylvia, in 2009 by Ray Suarez.

RAY SUAREZ: In the good days, how is it different from what we’re seeing now for Mr. Mackey?

SYLVIA MACKEY, wife of John Mackey: He will get up and walk up and down. He can — he will throw and catch the ball. Actually, today would be a good day if it weren’t for the myoclonic twitching, they call it, or myoclonic jerks.

Related: Pint-Sized Football Players Take Big-League Hits

RAY SUAREZ: And speech?

SYLVIA MACKEY: He doesn’t talk anymore, very rarely.

JEFFREY BROWN: Mackey passed away in July of last year.

Others in the study who show signs of CTE were Derek Boogaard, a former hockey enforcer who died of an accidental overdose in May of last year, and former NFL safety Dave Duerson, who took his own life in February of 2011 after complaining of headaches and a deteriorating memory.

The NFL faces a class-action lawsuit filed last July by thousands of former NFL players and their families, citing lack of disclosure about potential dangers.

For more, we’re joined by one of the lead researchers, Dr. Ann McKee, a neurologist and co-director of the center for the Study of Traumatic Encephalopathy at BostonUniversity, and Mark Fainaru-Wada, an investigative reporter with ESPN who is working on a documentary about this subject for “Frontline.”

Well, Ann McKee, let me start with you.

What do you see as the key finding from this study that perhaps we didn’t know before?

DR. ANN MCKEE, BostonUniversity: Well, this study, this disease, chronic traumatic encephalopathy, has been around since the 1920s.

But there have really only been a smattering of reports.

In this paper, we more than doubled the world’s experience with this disorder and take it from the very beginning, where it first affects the nervous system, where it affects the nervous system, and then we see it expand progressively in older and older individuals, until it really is a destructive disease that affects most of the brain.

JEFFREY BROWN: And just to be clear here, the focus is less on the — I guess, the major hits or major concussions, and more on sort of repetition over time?

DR. ANN MCKEE: Right.

This is exposure to what we call mild traumatic brain injury usually considered almost insignificant hits, not — they don’t even have to rise to the level of concussion. They can be sub-concussion. But when you’re exposed to these hits over a very long period of time, usually many years, you can set yourself up for some long-term consequences.

JEFFREY BROWN: All right, Mark Fainaru-Wada, you have been reporting on some of the — well, there was pushback from some of the experts to these findings.

Tell us what you have been hearing from them and from the NFL, for example.

MARK FAINARU-WADA, ESPN/”Frontline”: Right. Well, my brother and colleague Steve Fainaru and I have been reporting on this for a while for a book and a documentary and for ESPN.

And, as Dr. McKee stated, the findings on this are substantial in terms of the numbers. They’re the largest number ever reported.

And what we did find, though, was there’s a lot of pushback in the scientific community. Dr. McKee told us about her recent experience at a conference in Zurich where there were various folks who criticized the work. We talked to some of those people, including some of NFL doctors who were there.

One NFL member of their brain committee said, you know, relating these cases, creating a causal link based on these case studies to football is akin to saying basically all the ankle injuries suffered by football players wearing Nike shoes were because of the shoes.

The argument there is that — and, as Dr. McKee has acknowledged — the data set they’re working from is skewed because it’s based on a series of brains from athletes and players who were showing signs before death in large cases of having mental issues.

And so the question that everybody is trying to figure out is, what is the actual incidence of this disease in looking at brains that were healthy vs. players who actually were exposed to football?

JEFFREY BROWN: Well, let me ask you, Dr. McKee, to comment on that. How definitive is this? What else do you need to look at to know especially things like how to treat people?

DR. ANN MCKEE: Well, this study is definitive in describing and defining what the disease is and how it affects the nervous system.

But a key question remains, what’s the incidence and prevalence? How common is this disorder? And that, we will never establish from an autopsy study.

For that, we really need to be able to identify this disease in living individuals. And that’s a huge focus of our more recent research. How can we identify this in people that are living?

And that might be through MRI scans or PET scans and especially the ones that might peg the TAL protein that develops. It might be seen through blood tests or tests of your urine or CSF.

But we are really going to need those tests to be able to determine if a living person has this disease and then be able to measure that person’s exposure to head trauma. And that will be the defining moment. And that will probably take a longitudinal prospective study involving probably thousands of subjects.

JEFFREY BROWN: Well, so, Mark Fainaru-Wada, how are professional leagues, people who work with students, student athletes, how are they taking this? How should parents take this in terms of the stakes here, the implications for when people should be in contact sports?

MARK FAINARU-WADA: Well, I think the numbers what are strike most people.

And I think those are the questions that raise issues for some of the leagues and how they deal with it and how significant this is.

The study talks about, out of 34 NFL players studied, 33 of them ended up having CTE. And so I think that obviously creates questions. Some people have suggested that the numbers raise more alarming questions than are real.

But the league for its part, the NFL, which faces the most scrutiny on this issue, with, as your piece noted, 4,000 former players suing the league right now, the league has looked at the changed rules to address the issue of these sort of larger hits that we have seen, these sort of defining hits.

I think the larger question, though, as Dr. McKee touched on earlier, is the subconcussive blows, there’s increasing research around that; 40 percent of the cases of CTE they identified in NFL players were lineman.

And so that raises questions about, is just the definitive — the nature of repetitive hits in the game something that exposes a player?

And I think that’s what the leagues and parents are trying to figure out as they try to find out how significant an issue is this and what the risk is for their kids.

JEFFREY BROWN: Well, Dr. McKee, how far would you go at this point in terms of what you say to parents or athletic directors or professional teams about taking the findings and using them somehow?

DR. ANN MCKEE: Well, I think the major caution I would have is that all parents, coaches should take every head injury seriously and try to eliminate the minor hits or the hits to the head as much as possible in any sport.

We have already seen in the last four or five years a tremendous focus on concussions. It used to be considered a fairly trivial injury that no one needed to sit out for.

And now we’re taking it seriously and we’re resting those athletes and making sure they’re completely asymptomatic until they return to play.

And I think this has been a tremendous development. And it will probably go a long way in terms of preventing the development of these long-term consequences in these individuals.

At this point, we don’t have any evidence, there’s no available evidence that a single isolated or a few isolated concussions that are well-managed — that means well-rested, the individual is asymptomatic before he goes back to play — there’s no evidence that those injuries lead to this disease.

The injuries that seem to lead to this disease are years and years of exposure to many hits. And those hits may be relatively mild.

JEFFREY BROWN: And, Mark, let me just ask you very briefly. You mentioned that lawsuit. Just tell us briefly where do things stand? That goes on, right?

MARK FAINARU-WADA: Yes, it’s ongoing.

And the current state is that both sides are arguing. The NFL has argued for dismissal of the case. It’s before a federal judge in Philadelphia.

I think both sides expect some ruling on whether the case will get tossed out or not in the spring. And, surely, there will be an appeal, one would expect, either way. So I think one expects the lawsuits are going to drag on well into next year at least.

JEFFREY BROWN: Mark Fainaru-Wada and Dr. Ann McKee, thank you both very much.

DR. ANN MCKEE: Thank you.