Originally posted on 10/8/2019 (reformatted).

   Concussions, also known as traumatic brain injuries, occur when your brain violently impacts the inside of your skull.  Concussions can permanently damage your brain function ability to think or work.  These injuries lead to tort claims and product liability lawsuits against the National Football League, high schools, colleges, helmet manufacturers and others involved in the game of football.

FOOTBALL

             Football is a game of violence engendering results like retired players who can’t get out of bed without help, migraine headaches, quarterbacks and linemen who can’t raise their arms or tie their shoes. This game has caused suicides, namely Aaron Hernandez, Jovan Belcher, Junior Seau, O.J. Murdock, Kurt Crain, Mike Current, Dave Duerson and Ray Easterling. There was an avalanche of litigation against the NFL, NFL Properties, Riddell Sports Group and others. Approximately 2,500 former players and surviving family members sued the NFL for allegedly distorting and hiding data about concussions. 

On April 15, 2013, a Denver, Colorado jury found Riddell Inc., liable for failing to warn about concussion dangers. The jury awarded $11.5 million to a Rhett Ridolfi, a high school student and found Riddell 27 per cent at fault. Ridolfi, a former Colorado high school football player suffered serious brain injuries and partial paralysis. The jury assessed $3.1 million in damages against Riddell.

In 2010 the NFL gave Boston University’s Center for the Study of Traumatic Encephalopathy one million dollars to study the brains of 60 deceased football players.¹   Many showed signs of (CTE) chronic traumatic encephalopathy. CTE is a neurodegenerative disease caused by repeated blows to the head. The symptoms of CTE are slurred speech, headaches, psychosis and depression.

NATIONAL CENTER FOR INJURY PREVENTION

            According to the National Center for Injury Prevention, it is estimated that as many as 47 percent of all high school football players suffer a concussion each year.  Football players who suffer multiple concussions are at risk of suffering permanent brain damage.  A few years ago, not one state required that high school and middle school athletes who suffered concussion symptoms receive medical clearance to return to play.  According to USA Football all 50 states, now have some form of student –athlete concussion law in place.² 

            The purpose of this article is to inform coaches, players, parents, athletic directors and general counsel the seriousness of the risks of concussions to young people whose brains have not yet fully developed.  Every concussion is a brain injury.  The effect of this damage range from behavioral and emotional disorders to full body paralysis.

            An excellent resource for comprehensive facts and laws covering youth sports is Law Atlas-The Policy Surveillance Portal- Choose a topic -Youth Sports Traumatic Brain Injury Map Laws – Injury and Violence Prevention.  For example it states:

            “Every year as many as 300,000 young people suffer concussions or traumatic brain   injuries (TBIs), from playing Sports.  These injuries can have serious-and long term effects, and all states have adopted laws aimed at reducing harm for youth sports TBIs occurring at scholastic activities.  This map identifies and displays key features of such laws across all 50 states and the District of Columbia and over time, from 2009 to 2017.”³  

MICHIGAN HIGH SCHOOLS

The Michigan High School Athletic Association provides a bevy of information on health and safety including insurance benefits. As of August 2017 the association provides its members a Catastrophic Accident Medical Insurance Policy.  It pays up to $500,000 for medical expenses left unpaid by other insurance subject to a $25,000 deductible per claim. Visit the MHSAA website⁴ that provides:

Concussion Insurance Benefits Information and Forms

2017-18 Return to Activity & Post Concussion Consent Form

Concussion Education Materials Acknowledge Form

Concussion Resources

Student-Athlete Screening Guidance

            The return to activity form is to be used after an athlete is removed from and not returned to activity after exhibiting concussion symptoms.  MHSAA rules require (1) Unconditional written authorization from a physician or nurse practitioner and (2) Consent from the student and parent/guardian. The clearance must be in writing.  The medical examiner is the only person to approve the student’s return to unrestricted activity.

            In 2019 the MHSAA developed a new set of rules for football practices to limit “collision practices.” They define collision practice as executing full tackles at a competitive pace and taking players to the ground. Collision contact is limited to 30 minutes per week during the regular season.  Helmet manufacturers Riddell and Detroit based Zenith are creating better products to make football safer. Repeated blows to the head or repeated concussions over time can cause Alzheimer’s disease and Parkinson’s disease.

BRAINSCOPE

            Brainscope is a medical neuro-technology company located in Bethesda, Maryland. It is pioneering the assessment of brain injury including concussion.  BrainScope One is a mobile brain injury assessment device that can diagnosis traumatic brain injury (TBI).  A medical technician or nurse places electrodes on a patient’s forehead, temples and around the ears. The device records an electroencephalogram in about five minutes.  Software then calculates the likelihood of structural brain damage or functional impairment.  This is based on patterns of deviation from a database of healthy brain signals.  It combines smartphone software with a disposable electrode headpiece.

            Clinical trials have demonstrated that BrainScope One can indicate the presence or absence of brain injury with 98 percent accuracy.  It is not intended as a stand-alone diagnostic or as a replacement for a CT scan.⁵   Michael Singer, Chief Executive Officer says that BrainScope will be cheaper and more widely available next year and in the future may be able to diagnose conditions such as stroke.

          In addition, in 2018 the U.S. Food and Drug Administration approved a blood test to help diagnose a concussion.  Known as the Banyan Brain Trauma Indicator it could help reduce the need for CT scans.  The blood test checks the levels of specific proteins that have been released from the brain into the blood within 12 hours of a head injury.⁶

SHOW ME THE MONEY

            U.S. District Judge Anita Brody in Philadelphia approved a one billion settlement for NFL players and family members that became effective on July 7, 2017. The settlement award covers amyotrophic lateral sclerosis, Parkinson’s disease, death with chronic traumatic encephalopathy, Alzheimer’s and dementia.  Currently CTE can only be diagnosed with an autopsy. The settlement does not currently cover future cases of CTE.  Judge Brody has urged the parties to revisit the issue with scientific advancements. The revised settlement approved by Judge Brody covers more than 22,000 NFL retirees and is designed to last at least 65 years.  It also provides up to 5 million to individual retirees who develop Lou Gehrig’s disease and other profound problems.⁷       

          In addition, in 2018 the U.S. Food and Drug Administration approved a blood test to help diagnose a concussion.  Known as the Banyan Brain Trauma Indicator it could help reduce the need for CT scans.  The blood test checks the levels of specific proteins that have been released from the brain into the blood within 12 hours of a head injury.⁸

MOUTHGUARD

            PowerPlus Mouthguard, developed by a Traverse City dentist and manufactured in Gaylord is the newest protective gear. The lower-jaw mouthguard is custom fitted and protects the brain from impact injury.  It is designed to maximize the safety and performance of athletes participating in all sporting activities.  In an ongoing concussion field study results have shown the incident of concussions reduced to 0.20 percent.  The study includes athletes at all levels, from high school to professional and represents multiple sports.  Male and females are included in football, basketball, soccer and hockey. It appears this is a breakthrough in concussion lowering technology.⁹

CONCLUSION

        It is the responsibility of coaches, referees, parents and athletic directors to know the warning signs and symptoms of concussions. A concussion is a traumatic brain injury caused by a blow to the head that causes the brain to violently twist or move inside of the skull. Some symptoms are obvious and some are not. Symptoms can last weeks or for many months. The purpose of this article is not to deter participation in football but rather to educate and inform attorneys, athletic directors, coaches, parents and players of the risks and symptoms of concussion.

         Participation in sports by young people can engender mental and physical toughness, discipline, sportsmanship and leadership qualities. These individual attributes collectively can also provide an advantage in the game of life.

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James A. Johnson of James A. Johnson, Esq. in Southfield is an accomplished Trial Lawyer. He concentrates on Sports & Entertainment Law, serious Personal Injury, Insurance Coverage under the Commercial General Liability Policy and Federal Criminal Defense.  Jim is an active member of the Michigan, Massachusetts, Texas and Federal Court Bars. He can be reached at www.JamesAJohnsonEsq.com

ENDNOTES

1. Rich Barlow at www.bu.edu/today/2010/nfl-gives-1m-to-bu-center-for-athlete-brain-study/  (last visited 8-19-19).
2. http://usafootball.com  -National Center For Injury Protection-Brain Injury Basics (last visited 8-19-19).
3. www.lawatlas.org – Choose a Topic-Injury & Violence – Youth Sports Traumatic Brain    Injury Laws.

4. https://www.mhsaa.com/schools/health-saftey-resources/ (last visited 8-19-19).
5. https://www.brainscope.com;  Bloomberg Businessweek, July 23, 2018 at P. 25  
6. https://www.webmd.com/brain/news/20180214/fda-approves-first-blood-test-to-detect- concussion (last visited 8-19-19)
7. https://nflconcussionsettlement.com (last visited 8-19-19). 
8. https://www.webmd.com/brain/news/20180214/fda-approves-first-blood-test-to-detect-concussion  (last visited 8-19-19)
9. http://www.dbusiness.com/daily-news/Annual-2019/PowerPlus-Mouthguard-from-Traverse-City-Dentist-Helps-Boost-Athletic-Performance-While-Reducing-Concussions/?utm_campaign=Newsletter%20-%20DBusiness%20Daily%20News&utm_source=hs_email&utm_medium=email&utm_content=68899933&_hsenc=p2ANqtz-_xl6zPpkuPe6X9B0SgGpD5uTBl7wsqdDvoQLKb8I2VwdxCwVyUHAqs__ieXQ5EkGoyWR_Q82x7c8HHeOvK7QVN9Cqh8g&_hsmi=68899933