Neurosugery presentation (1)

Team Physician -- Legal LiabilitySports Concussion Management

American Assoc. of Neurological SurgeonsAnnual Scientific Meeting—May 2015

Michael V. Kaplen, Esq.

De Caro & Kaplen, LLP

Professorial Lecturer in Law

The George Washington University Law School

[email protected]

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?



http://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRw&url=http://www.tonykieraldo.com/2015/01/16/what-me-worry/&ei=5GM-VfuuGpC3yASSqYCQBg&bvm=bv.91665533,d.aWw&psig=AFQjCNHVWbL_dEDl--gNzwXVk12BmF3Okw&ust=1430238577216409

http://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRw&url=http://www.tonykieraldo.com/2015/01/16/what-me-worry/&ei=5GM-VfuuGpC3yASSqYCQBg&bvm=bv.91665533,d.aWw&psig=AFQjCNHVWbL_dEDl--gNzwXVk12BmF3Okw&ust=1430238577216409

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.”


http://www.nflevolution.com/concussion-protocol

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 AcademyU.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.

[email protected]

www.Brainlaw.com


mailto:[email protected]

http://www.brainlaw.com/

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