An Attorney’s Duty to Concussed Athletes

In November 2018, the National Hockey League (NHL) joined the National Football League (NFL) to attempt to resolve their concussion litigation. The NHL agreed to a settlement with approximately 300 former hockey players, who had unsuccessfully attempted to certify their lawsuit as a class action. NHL Players alleged negligence for how the NHL dealt with head injuries, and claimed that the league concealed the long-term risks of head injuries and concussions. In the NFL, reports have shown an increasing number of retired NFL players who have suffered concussions and developed memory and cognitive issues, including chronic traumatic encephalopathy (CTE). To date, researchers have diagnosed CTE in 110 of 111 former NFL players. At the college level, there is a growing list of legal claims against the National Collegiate Athletic Association for failing to protect athletes from the risks associated with head injuries. For sports law and health law attorneys, concussion litigation is an important issue, particularly as it relates to CTE and second-impact syndrome (SIS).   

Contact sport athletes and military veterans, populations that have a history of repetitive hits to the head have the highest risk of CTE. CTE can only be identified during a postmortem autopsy, but symptoms can be present years before death. SIS occurs when an individual receives a second head injury before recovering from the first, and often leads to permanent disability or sometimes death. Attorneys can play a large role in preventing or helping athletes decrease their risk of concussions. There are several significant federal lawsuits, including at American University, and many state lawsuits that are deciding landmark legal issues. One such case is Schmitz v. NCAA, where the Ohio Supreme Court held that the “discovery rule” allows former athletes to file suit based on traumatic brain injury symptoms that do not manifest until decades after the alleged head trauma occurred. The increase in lawsuits, even when they end in settlement, may lead more athletes to seek compensation and hopefully to minimize the risk of brain injury in sports.

Concussions will continue to be a litigated issue, both at the collegiate and the professional levels. As lawyers, what is our duty to these concussed athletes? And what is the standard of care due to athletes who suffer concussions? Most importantly, litigators need to become familiar with the symptoms of concussions, which can include physical, cognitive, and behavioral changes. Litigators also need to understand the athlete’s pre- and post-concussion cognitive abilities, along with understanding the severity and short- and long-term effects of a concussion. Pre-season neurological testing and prior medical history are probably the best tools to determine an athlete’s pre-concussion cognitive abilities. Baseline testing is useful to compare abilities, since it is not meant to be a comprehensive assessment, which can provide an objective baseline measure of the effects of a concussion. Prior medical records also reveal past concussions and anything that may affect an athlete’s abilities, including mental health. During the concussion, litigators can interview witnesses to the concussion and obtain medical records regarding the diagnosis after the concussion. Then, litigators can begin to investigate the diagnosis, and determine whether the athlete meets any of the symptoms of a concussion.

Litigating claims on behalf of concussed athletes is difficult, but the advances of medicine and awareness of symptoms may lead to changes in the law. Going forward, one of the benefits of concussion litigation is that it will likely change how contact sports are played, from youth to professional sports. Litigators who want to protect athletes, along with coaches, should begin to discuss protecting athletes at a young age, even if it removes some of the drama of athletics. Many athletes have lost their lives and lifestyles from CTE and SIS, and we can ensure better protections for budding athletes.