CONCUSSIONS AND THE COURTHOUSE DECEMBER 2015 About the American Association for Justice (AAJ) The American Association for Justice works to preserve the constitutional right to trial by jury and to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. 777 6th Street, NW, Suite 200 Washington, D.C. 20001 www.justice.org Copyright © American Association for Justice 2015. Reproduction of any kind is prohibited. For more information, please contact AAJ Research at [email protected] or at (800)424-2725 or (202)965-3500, ext. 2811. American Association for Justice (AAJ): Concussions and the Courthouse 2015 3 TABLE OF CONTENTS Introduction 4 The Change in Culture 5 Concussion Flashpoint: The NFL 9 Beyond the NFL: The Concussion Epidemic 14 Conclusion 18 Appendices: Statistics 19 High Profile Cases 20 A Timeline of Concussions 24 State Laws 33 American Association for Justice (AAJ): Concussions and the Courthouse 2015 4 INTRODUCTION he dangers of traumatic brain management policies. Where decades Tinjuries in sports have long been of medical research changed attitudes known, but it is only recently that only incrementally, lawsuits have a widespread change in attitude to fueled accelerated change. such injuries has taken hold, as the No concussion lawsuit has had quite civil justice system has begun to hold the effect of the NFL concussion sports leagues and school districts litigation. One of the most high- to account. Ten years ago, players, profile court cases in sports history, the coaches and commentators still talked case immediately sent shockwaves not about concussions in terms of “being just through the NFL, or professional shaken up,” or “having your bell rung,” sports, but all contact sports at every even as the risks head injuries posed level. Insurance companies warned were becoming common knowledge. that the league might face as much Today, more players and parents are as $2.5 billion in damages, and no aware of the need to take concussions one knew better than them that seriously than ever before, coaches that estimate might be the tip of the who push obviously concussed players iceberg. to “get back in there” are becoming Realizing that inadequate treatment more of an anomaly, and every state of concussions represented a risk for in the nation except Wyoming has which they would have to pay, the passed some version of a “When in insurance companies began pushing Doubt, Sit Them Out” law. schools and sports organizations to The dramatic change in culture has embrace cutting-edge concussion been fueled in part by concussion treatment protocols. The civil justice litigation. High profile lawsuitssystem, through a small number of against sports organizations, lawsuits, has driven the most radical school districts, and colleges have change in the health care approach to pushed administrators and the athletes and student-athletes in the insurance companies that back history of sports. their organizations to introduce strict protocols and concussion American Association for Justice (AAJ): Concussions and the Courthouse 2015 5 THE CHANGE IN CULTURE The New York Times October 11, 1908 n November 2, 2012, the New it’s getting old... It’s a man’s game. OOrleans Hornets were playing They’re treating these guys like they’re the Utah Jazz when the Hornets’ five years old.”1 number one draft pick, Anthony Williams’ attitude to concussions Davis was accidentally concussed by a would have been uncontroversial blow from a teammate’s elbow. Davis ten years ago. Until recently, players, was forced to miss the next game, coaches and commentators still much to the chagrin of his coach, regarded “having your bell rung” Monty Williams. “He got touched and continuing to play as a mark up a little bit last night,” Williams of courage, even as medical research told reporters. “That happens a increasingly revealed the dangers not lot in basketball. It’s just that now only to short term health but also to they treat everybody like they have long term cognitive health. But in white gloves and pink drawers and American Association for Justice (AAJ): Concussions and the Courthouse 2015 6 2012, Williams’ comments received It’s easy to assume that discoveries widespread condemnation. Today, in medical science have driven this more players and parents are aware of rapid culture change, but the health the need to take concussions seriously consequences posed by concussions than ever before, coaches who push have long been known. As early as “They’re forced to obviously concussed players to “get 1982 concussions were front page care now because it’s back in there” are becoming more news, as The Wall Street Journal of an anomaly, and every state in the called them the “silent epidemic.” politically correct to nation has some version of a “When By the 1990s and early 2000s, a care. Lawsuits make in Doubt, Sit Them Out” law. growing body of medical research The change in culture has been —and controversy surrounding you care.” dramatic. Researchers from Children’s it—was showing up not only in - Terry Bradshaw Hospital Colorado tracked the obscure medical journals but also in compliance of high school athletes mainstream magazines and national who suffered from concussions and newspapers. Still, sports leagues how well they followed the return-to- at the professional, amateur, and play guidelines. The researchers found youth levels were slow to react to the that only half of the athletes they increased awareness of the dangers of tracked were compliant in 2007, but concussions. That all changed when by 2013, 80 percent were.2 Sideline injured players started demanding concussion protocols, independent answers through concussion spotters and medical examiners, and litigation. baseline neurological testing have become common in professional As former Steelers’ quarterback, Terry sports. It would be surprising today to Bradshaw, put it, “They’re forced to find a school or sporting organization care now because it’s politically correct 3 that has no concussion protocols, and to care. Lawsuits make you care.” those protocols are becoming stricter. While lawsuits had been filed before, they tended to be individual lawsuits against specific organizations and school districts. In contrast, the NFL concussion litigation filed in 2011 was one of the most high-profile court cases in sports history. The NFL’s insurance companies warned that the league might face as much as $2.5 billion in damages. And no one knew better than the insurance companies that that estimate might be the tip of the iceberg.4 If an organization with several thousand players might face Pittsburgh Steelers quarterback Terry Bradshaw $2.5 billion in damages, what might playing on October 17, 1977 the colleges, high schools, and youth American Association for Justice (AAJ): Concussions and the Courthouse 2015 7 organizations involved in football Zackery Lystedt and the “When in face? Doubt, Sit Them Out” Laws Nor was it just football. Many sports In 2006, 13-year-old Zackery Lystedt faced potential liability for known suffered a concussion during a junior concussion problems, including high school football game. Lystedt sat soccer, one of the most-played out just three plays before returning sports and the number one cause of to the game. Later in the second half, concussions in female athletes. And it Lystedt collapsed and was airlifted Only a handful of wasn’t just at the professional level. It to a hospital, where he underwent emergency surgery to remove portions was at every level of sport, from Little states require parents of his skull to relieve pressure in his League, to high school, and college. brain. It would be nine months before After all, the NFL concussion case to be notified if their Lystedt could speak again, 13 months covered only 5,000 former players, child suffers, or is before he could move his arms or legs, while the CDC estimates as many as and 20 months on a feeding tube.8 suspected of suffering, 3.8 million sports-related concussions occur each year. In 2009, Washington state passed a traumatic brain the so-called Zackery Lystedt Law, The NFL concussion lawsuit brought becoming the first state in the nation injury. unprecedented attention to the issue to enact a comprehensive youth sports of concussions, and the trickle-down concussion safety law. The law, also effect prompted widespread change. known as “When in Doubt, Sit Them Insurance companies, realizing that Out,” was drafted by Richard Adler, inadequate treatment of concussions Lystedt’s attorney. Since then, every The CDC estimates now represents a risk for which they state except Wyoming has enacted will have to pay, began pushing some form of “When In Doubt, Sit as many as 3.8 schools and sports organizations to Them Out” law. embrace cutting edge concussion While these laws are a tremendous million sports-related 5 treatment protocols. The NCAA— step for the safety of youth sports, concussions occur each with its own potential liability they are not a perfect solution. described as a gathering storm Many do not identify who should year. that might one day dwarf the NFL be responsible for removing a player litigation—has toughened concussion from a game, simply stating the measures considerably.6 And while player “shall be removed.” Many the organization has come under do not require coaches to undergo fire for failing to enforce its own concussion training, or that student recommendations, college officials athletes who have been removed have said they still expect insurance from play obtain written clearance companies to enforce compliance of from a health care provider before the guidelines when underwriting returning to play.