Neurosugery presentation (1)

Team Physician -- Legal Liability
Sports Concussion Management
American Assoc. of Neurological Surgeons
Annual Scientific Meeting—May 2015
Michael V. Kaplen, Esq.
De Caro & Kaplen, LLP
Professorial Lecturer in Law
The George Washington University Law School
michael@brainlaw.com
www.Brainlaw.com
copyright 2015 De Caro & Kaplen, LLP www.brainlaw.com

Thank you for being ahead of the curve
Head and Brain Injury Prevention Campaigns
Recognition that loss of consciousness is not
required for diagnosis
Alerting public and Medical Profession to Short
& Long Term Consequences of Concussions
Second Impact Syndrome

Football is a concussion delivery system

It’s Not Only Football

If you cannot prevent
concussions - - Can you be held
responsible for the
consequences ?I

Is There a Problem?

How is the Standard of Care Established?
NFL Public Service Announcement

Establishing & Defending the Case
Standard of Conduct:
Government Agencies
Professional Societies & Conferences
Legislation

“Even mild concussions should not be taken lightly.
Neurosurgeons and other brain-injury experts emphasize
that although some concussions are less serious than others,
there is no such thing as a "minor concussion." In most cases,
a single concussion should not cause permanent damage. A
second concussion soon after the first one, however, does
not have to be very strong for its effects to be deadly or
permanently disabling.”

You are Responsible
“Managing Concussions: The NFL’s Protocol”
“Because each player and each concussion is unique, there is
no set time-frame for recovery and return to participation
under the NFL’s current guidelines. The decision to return a
player who has a concussion back to practice and games
resides with the team physician designated to manage the
concussion protocols and is confirmed by an Independent
Neurological Consultant (INC), who is consulted specifically for
the player’s neurological health.”

WHEN IN DOUBT—KEEP THEM OUT!
Know the symptoms
“People who suffer a head injury may suffer from side effects that
persist for weeks or months. This is known as post-concussive
syndrome. Symptoms include memory and concentration problems,
mood swings, personality changes, headache, fatigue, dizziness,
insomnia and excessive drowsiness. Patients with post-concussive
syndrome should avoid activities that put them at risk for a repeated
concussion. Athletes should not return to play while experiencing
these symptoms. Athletes who suffer repeated concussions should
consider ending participation in the sport.”

He sustained a concussion in 2006 while playing middle school
football. He hit his head on the ground during a tackle – he did
not have any loss of consciousness. He was sidelined for
three plays and was returned to the game. When he resumed
play, he collapsed on the field and had to be air lifted to
hospital where had had emergency surgery for brain swelling
and increased intracranial pressure.
Who
is Zachary Lystedt?

Common Elements
Training of Coaches
Education of Players
Remove from Play
Medical Clearance Before Returning to Play
Immunity from Law Suits

Who clears the athlete? Coach, Trainer, M.D.,
Neurologist?
What training do they receive?
Mandatory period of restricted athletic activity? 24
hours? 7 days?
Rule changes?
Mandatory baseline testing?
Does insurance cover testing? Retesting?
No Uniformity

Inclusion of non-school based recreational activities?
Do volunteer physicians get a free pass for malpractice?
What, if any is the obligation of non-physician to make
physician referral?
Mandatory insurance coverage for future medical costs?
Classroom modifications?
No Uniformity

If only it was so easy

High School Athletes Continue To Play Despite
Concussion Symptoms
Despite the fact that the students reported they were
aware of the risks associated with concussions from
football, a little more than half of 120 high school
players surveyed said they would continue to play.
Pediatric Academic Societies annual meeting Washington, D.C. 2013

If you cannot agree on a definition, how can
you diagnose the condition?
Lack of agreement on definition
Lack of objective tests
Lack of agreement on return to play
protocols
Lack of evidenced based data

Proving Injury
The first concussion is free.
Failure to remove from play
Returning to play prematurely
How did the second concussion cause,
contribute, or exacerbate current condition?

Mercier v. Greenwich Academy
U.S. Dist. Court, CT
•Female HS Student playing Varsity Basketball
•Struck on front side of head by player from opposing
team
•Player informed coach : dizzy, blurry vision and
needed to sit down
•Following 5 minutes of rest, coach asked player if
she was ready to return to game
•Player said “yes” copyright 2015 De Caro & Kaplen, LLP www.brainlaw.com

Following return to play:
Player lost her balance, felt disoriented
Then, struck in head again

Legal Liability
Contentions:
Coach was trained to recognize concussion symptoms
School had written protocol—no return to play without medical
evaluation
Decision:
Requesting player return to play after she told Coach that she was
struck in head and exhibited concussion symptoms could be
considered: “reckless disregard for the just rights or safety” of the
student.

Suggestions
Clearly delineate your role and responsibility
Clearly delineate independent decision
making function
Education for athletes, parents, coaches on
concussion signs, symptoms & dangers
Do not rely on athlete

Suggestions
Rules and penalties
When in doubt, keep them out
Retesting before return to play
Mandatory period of removal --1 week +
Medical clearance by qualified professional
before being permitted to return to play

Suggestions
Careful documentation
Review records at beginning of every
season
Severity, frequency, and duration of
symptoms all must be considered

It’s only a game!
The best cure for a brain injury is
prevention

Thank you
Michael V. Kaplen, Esq.
michael@Brainlaw.com
www.Brainlaw.com

Neurosugery presentation (1)

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