2011 Fall, Pg. 26. Concussions and student-athletes: Medical-Legal Issues in Concussion Care and Physician and School System Risks.

AuthorBy stuart J. Glassman, Md, and attorney Bradley d. holt

New Hampshire Bar Journal


2011 Fall, Pg. 26.

Concussions and student-athletes: Medical-Legal Issues in Concussion Care and Physician and School System Risks

New Hampshire State Bar JournalVolume 52, No. 3Fall 2011Concussions and student-athletes: Medical-Legal Issues in Concussion Care and Physician and School System RisksBy stuart J. Glassman, Md, and attorney Bradley d. holtIntroductIon

In Sebastian Junger's book "The Perfect Storm(fn1)" a collection of meteorological phenomena coalescing at the same moment produced unexpectedly strong storm effects and ensuing disaster Any one of the three key contributing factors - a dying Hurricane Grace, a weather system coming in from the west, and an unusual Nor'easter -- would have been manageable, but the synergistic combination rendered the storm (ironically), "perfect," and devastating.

In that vein, there are three factors simultaneously contributing to a new paradigm in student/athlete concussion management which foster a signifcant risk management challenge for youth sports programs, such as at high and middle schools, or in various town and private sports programs. The three factors are: new medical understanding, new levels of general public awareness, and a new attitude about what to do.

Rapidly advancing, highly sophisticated developments in medicine (particularly neurology and pathology) are changing what we know about concussions (e.g., about howyoung, developing brains react compared to mature brains; how to detect subtle injuries; and how to determine when it is safe to return to play) New levels of general public awareness come from the Internet and 24/7 news cycles: these phenomena foster rapid dissemination of otherwise widely-dispersed anecdotes, and the rapid aggregation of these anecdotes into storylines accelerates identifcation of trends. (For example, a football player's concussion in Spokane, WA and one in Shreveport, LA, can be quickly called up and folded into a story about a similar injury in Morristown, NJ, ftting each event into a larger, coherent context, and announcing a "trend.")

In professional sports there has been a sea change in appreciation of concussion issues too; the economics of professional sports and the high profle of athletes exponentially increase the impact of this changed appreciation. Lawsuits by retired NFL players(fn2) for compensation and treatment for damage from head injuries, and negotiated rule changes to protect current athletes(fn3) are just two examples of a changed perspective on the significance of concussion injuries for athletes.

The drive to address concussion concerns inexorably trickles down to amateur youth sports. The standard of care for prevention, recognition, and treatment of concussions is changing, and these changes are playing out in a very public way at the professional sports level. Similar scrutiny seems only a few short steps away for colleges and universities, secondary school systems, and even high-level club sports teams.

As evidence of this trend, the NCAA passed regulations in the spring of 2010 which now require any Division 1, 2 or 3 school to have a "concussion management plan" on fle.(fn4) Likewise, as of August 2011, 30 states have now passed youth sports concussion-related laws,(fn5) an accelerating trend. These laws and regulations tend to include (1) mandates for formal training of coaches about how to identify signs and symptoms of a concussion, (2) requirements regarding removal from competition, and (3) "return to play" stipulations.

The legal system tends to work these scenarios (i.e. changing legislative, social, or scientifc paradigms) out over time so that actors from all perspectives can organize their conduct and expectations. In the early uncertain stages of this process, standards of care get litigated, after which jury verdicts and settlements help establish the "value" of claims, and everyone adjusts.

This article reviews the changes in medicine, and the current legal posture, concluding with some recommendations for preparing for the future.

I. MedIcal 'State of the art'

a. What is a concussion?

A concussion is a mild traumatic brain injury, which leads to a cascade of neurochemical changes in the brain at the cellular level. changes are seen in ion flow, especially with potassium, calcium and glutamate.(fn6) It is a functional disturbance of the brain, as compared to a structural injury: only 1 percent of concussion cases show any change on structural imaging studies such as CT or MRI scans of the brain.

The Centers for Disease Control (CDC) estimates that there are between 1.6 and 3.8 million sport-related concussions every year in the US(fn7), and that underreporting is very common, especially in youth sports. In the past, terms such as 'getting your bell rung' or 'it's only a ding' were used, often as a way to downplay the concern of any type of injury. This likely was due to a lack of understanding of the true effects of a concussion. With recent international consensus statements such as the Zurich 3rd International Conference on Concussion from October 2008 (statement released in May 2009)(fn8), and research showing the long term effects of multiple concussions, including Chronic Traumatic Encephalopathy (CTE), these euphemistic terms are simply no longer appropriate. A concussion is a brain injury, and must be treated appropriately

b. Pathologic Findings

One of most signiflcant medical findings over the past few years concerning concussions is based on the neuropathology work of Dr Bennett Omalu (University of Pittsburgh Medical Center) and Dn Ann McKee (Boston University School of Medicine) : they have discovered that the brains of athletes who suffered multiple concussions had accumulated tau protein deposits, known as Chronic Traumatic Encephalopathy (CTE), similar to beta-amyloid changes found in Alzheimer's patients. It has been postulated that the multiple traumatic hits to the brain led to the tau protein accumulation, which clinically was seen as behavioral changes, emotional liability, substance abuse and cognitive decline, (e.g., a disturbing trend of retired middle aged athletes committing suicide has been identified.)

A striking example of this recently was the sad case of Dave Duerson, a former Chicago Bears All-Pro safety. Duerson had been a four-year starter at Notre Dame, an All-American, MVP, team captain (who later served for five years as the University Trustee). In the pros, he played on two Super Bowl teams and held an NFL sack record. After his playing days he became a very successful businessman. Yet on February 11, 2011, he committed suicide - leaving a text directing that his brain be donated to the ongoing study at Boston University, and he purposely committed suicide via a gunshot wound to the chest, in order to keep his brain intact. Upon post-mortem examination, his brain did show CTE changes.

The phenomenon is not confined to career NFL players, and a key issue to resolve is how to determine at what point the damage starts. In the past year medical research has demonstrated chronic changes from head injuries in teenagers, even in cases where there was never a diagnosed concussion. This is noted in the case of Owen Thomas, an All-Ivy League football team captain from the University of Pennsylvania, which drew much attention last year, after the 21-year-old hanged himself inexplicably: follow up research at Boston University showed his brain to be in "early stages" of CTE, despite his mother's report that he had never been diagnosed with a concussion, and had never before shown any side effects normally associated with brain trauma. (Likewise, she reported he had no history of depression.) His case is cited as representing the youngest - and first amateur - football player demonstration of CTE.

c. The significance of "Second Impact Syndrome"

In the acute setting of concussion management, one rare but catastrophic situation that clinicians are trying to avoid is called Second Impact Syndrome. SIS occurs approximately once in a million concussion cases, or two or three times per year in the United States. It was first described in the medical literature in 1973, and was formally named in 1984 by neurosurgeons at Dartmouth Medical School. The cause of SIS is felt to be massive swelling due to a minor second injury to the brain that is still recovering from an initial head injury, usually within the prior two weeks. While some of these cases involve intracranial bleeding, it can also be due to brain edema. At no time should a concussed athlete be exposed to the potential of a second head injury before the first concussion has fully healed, due to the risk of SIS (usually in the first 14-21 days after the initial concussion). Even short of this rare but catastrophic event, however, is the recognized risk of a longer recovery time with the second head injury.

d. Testing

Testing encompasses both player evaluation and equipment testing. There have been rapid advances on both fronts.

(i) Cognitive evaluation.

Player testing involves pre-injury baseline testing, as well as post-injury evaluation. There are several new tests being marketed and used to test neurological consequences of head injuries. The neurocognitive evaluation is often done with computerized testing, suchasthoseby ImPACT

(ii) clinical evaluation.

The clinical evaluation of a concussion involves three main areas: symptom assessment (emotional, cognitive, physiologic and sleep changes), balance testing, and neurocognitive evaluation. The symptom assessment is often done using a 22-item graded symptom checklist, which is readily available in the SCAT 2 (Sport Concussion Assessment Tool 2) (fn12) document which was issued at the time of the publication of the Zurich Consensus Statement on Sport Related Concussion. Symptom checklists are also...

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