What's all the headache? Reform needed to cope with the effects of concussions in football.

• Author: Diehl, Erika A.

1. INTRODUCTION I. MEDICAL OVERVIEW OF CONCUSSIONS A. Grades of Concussions B. Diagnosis C. Second-Impact Syndrome D. Long-term Effects of Concussions E. Management of Concussions III. LEGAL ISSUES STEMMING FROM CONCUSSIONS A. Liability Overview B. Negligence 1. Coaches and Co-participants 2. Assumption of Risk 3. School Districts C. Express and Implied Warranties D. Strict Liability IV. WHAT VARIOUS ORGANIZATIONS ARE DOING ABOUT THIS PROBLEM A. Congress and State Legislatures B. At the High School Level C. At the College Level D. At the Professional level 1. Prevention and Management a. Fines b. Baseline tests c. Whistleblower system d. The '88 Plan' e. Recent Studies V. OPTIONS FOR REFORM A. Potential Implementations 1. Baseline Tests 2. Identify Athletes with Increased Risk of Concussions 3. Properly Fitted, Pressure-Laminated Mouthguards 4. New Helmet Designs B. Funding C. Legal Reform VI. CONCLUSION I. INTRODUCTION

   With 3:29 left in the AFC Championship game, Ravens running back Willis McGahee caught a pass from Joe Flacco and started upfield. (2) After taking two steps, McGahee was dropped by a violent helmet-to-helmet hit by Steelers' safety Ryan Clark. (3) Instant replay showed "McGahee's body jarring violently, his neck sickeningly snapping back like a crash-test dummy." (4) As McGahee lay motionless, an eerie silence grew over Heinz field. (5) Onlookers prayed for movement from the downed player. (6) Even members of the Steelers feared the worst. (7) Thankfully, these prayers were answered, as Baltimore's team spokesman reported McGahee was "neurologically intact" and would be monitored in a Pittsburgh hospital overnight. (8) McGahee later confirmed, "Everything is O.K. The M.R.I. and the CAT scan checked out good. I was scared, but I didn't know how serious it was. It was pretty intense." (9) McGahee was diagnosed with a concussion and said his neck was sore. (10) "I didn't even see him coming," said McGahee. "I blacked out. I woke up when they were taking my face mask off." (11)

   McGahee wasn't the only Raven who sustained a concussion during the AFC Championship game. (12) Cornerback Corey Ivy suffered one from a crackback block (13) from wideout Limas Sweed, (14) and Daren Stone sustained one during the opening kickoff after colliding with Steelers' Carey Davis. (15) In contrast to McGahee however, Stone was allowed to return to the game by team officials and coaches. (16)

   "For every concussion we see occurring at the professional sports level, there are tens of thousands of injuries at the high school level and below," said Dr. Mickey Collins, the Assistant Director of the Sports Medicine Concussion Program at the University of Pittsburgh Medical Center. (17) In 2007 alone, three high school athletes died while sustaining head injuries in football. (18) On September 18, 2008, sixteen year old linebacker, Ryne Dougherty, sustained a concussion during football practice. (19) After a normal CT scan and sitting out for the mandated period, he returned to the field, only to collapse and die after sustaining a brain hemorrhage. (20) This problem is prevalent throughout our nation's athletic institutions. Since 1945, there have been 510 head and spine fatalities while playing football. (21)

   Veteran sports agent Leigh Steinberg warned that collegiate athletes are younger, meaning there are "players who are 17 and 18 whose brains are still in formation. The potential damage to a younger brain could be devastating." (22) This concern runs an even greater risk for those competing in high school and youth sports. The Center for Disease Control estimates a minimum of 96,000 children aged 5 to 18 experience sports-related concussions annually in the United States. (23) This can be particularly damaging because adolescent brain tissue is still developing. (24) In addition, high school athletes typically receive "less capable medical care, or none at all." (25) "Poor management of high school player's concussions isn't just a football issue. It's a matter of public health," warned Robert Sallis, president of the American College of Sports Medicine." (26)

   In order to effectively manage this public health concern, (27) it is imperative to gain an understanding of the issues surrounding head injuries in sporting events. This Note will discuss the increasing frequency and dangers of concussions in amateur and professional football. (28) It will suggest that athletes, schools, coaches, and doctors must become more educated on the causes and dangers of concussions in order to ensure the safety of participants. (29) In order to do so, this Note introduces a medical overview of concussions, while briefly outlining the diagnosis, (30) long-term effects, (31) and management of concussions. (32) Part III discusses the legal theories athletes and their families may pursue, as well as potential defenses the defendants might utilize. (33) Part IV describes what legislatures (34) and amateur (35) and professional (36) sports organizations are doing in an attempt to combat the epidemic. Part V offers potential solutions for reform, including increasing congressional funding to help amateur organizations offset the rising costs of effective concussion management. (37)

2. MEDICAL OVERVIEW OF CONCUSSIONS

   According to the International Convention of Concussion in Sports, a "[c]oncussion is defined as a complex pathophysiological process affecting the brain, induced by traumatic biomechanical forces." (38) The common features that may be used in the definition of concussion include:

   (1) may be caused by a direct blow to the head, face, neck, or elsewhere on the body with an "impulsive" force transmitted to the head.

   (2) typically results in the rapid onset of short lived impairment of neurological function that resolves spontaneously.

   (3) may result in neuropathological changes but the acute clinical symptoms largely reflect a functional disturbance rather than structural injury.

   (4) results in a graded set of clinical syndromes that may or may not involve loss of consciousness. Resolution of the clinical and cognitive symptoms typically follows a sequential course.

   (5) typically associated with grossly normal structural neuroimaging studies. (39)

   "Even what seems to be a mild bump or blow to the head can be serious." (40) According to research conducted by the NFL's Committee on Mild Traumatic Brain Injury (MTBI), a "concussion in professional football involves a mean impact velocity of 9.3 m/second (20.8 mph) and a head velocity change of 7.222 m/second (16.1 mph). (41) To put this finding into perspective, they explain car accidents usually "involve impact durations of less than 6 m/see for head impacts." (42)

   It is estimated that 3.8 million sports and recreation related concussions occur each year in the US. (43) Conservative estimates indicate that more than 300,000 sportrelated concussions occur each year in the United States, (44) but that figure only represents head injuries resulting in hospital admissions. (45) An equal quantity of MTBIs are treated by general practitioners and do not result in hospital admission. (46) In contrast to the decline of other serious injuries over the past ten years, a study by the Center for Injury Research and Policy in Columbus, Ohio determined that the incidence of concussions has doubled. (47) It is projected that sports-related concussions comprise of twenty percent of the mild head injuries in the US. (48) Although concussions can occur in any sport or leisure activity, the potential for concussions is greatest in collision sports. (49) In collision sports, athletes "purposely hit or collide with each other or with inanimate objects (including the ground) with great force." (50) Approximately 60,000 concussions occur at the high school level, the majority of which are sustained during football activities. (51)

   1. Grades of Concussions

      There are over forty-one methods employed to measure the severity or grade of a MTBI, (52) and no general consensus among the profession on which approach is the best. (53) This has become problematic, as the return-to-play decision is frequently based on the grade of concussion. (54)

      Symptoms of concussions vary, but may include: headache, nausea, amnesia, balance problems, dizziness, fatigue, irregular sleeping patterns (i.e. trouble falling asleep, sleeping more than usual, sleeping less than usual, drowsiness), irritability, sensitivity to light, sensitivity to noise, increased sadness, nervousness, feeling more emotional, numbness or tingling, feeling slowed down, sensation of being "in a fog," difficulty with concentration, difficulty with memory, and visual problems. (55) Because of the difference in how the brain tolerates biomechanical forces in adults and children, children show symptoms of concussions after greater impact of force than adults. (56) In fact, a "two to three fold greater impact force is required to produce clinical symptoms in children," (57) resulting from a combination of factors, including "an age dependent physiological response to mechanical stress, the differing geometry of the skull and brain, and the constitutive structural properties of the head." (58)

   2. Diagnosis

      Diagnosis of concussions can be a challenge, as athletes seldom self-report concussive symptoms. (59) This is due in part because athletes are not always aware of the symptoms. (60) When anonymously surveyed, fifteen percent of high school football players reported sustaining concussions. (61) This number jumped to close to fifty percent when descriptions of the symptoms were listed and the word concussion was omitted; thirty-five percent admitted to two or more. (62)

      Not only have studies shown that athletes are not aware of the ramifications from ignoring head injuries, but also that athletes want to continue playing because they do not want to be perceived as weak. (63) This lack of knowledge and "He-man" mentality is not confined to high school...