Brain Injuries - Can the NFL Help Change Insurance Companies Approach to Damages?
December 4, 2009
Having played hockey and football growing up, and still playing pick up hockey once a week to this date, I have listened, watched and read with interest the developments relating to the National Football League's protocol for athletes that have suffered a blow to the head. In the late 1960's and into the 1970's when I was playing both sports competitively players "got their bell wrung" frequently. Some time was given to clear the cobwebs and then the player was typically expected to return to the game. That mentality and approach appeared to have continued until the last few years. Now football is taking concussions and brain injury much more seriously. "New" medical research has determined that concussions can occur with a relatively mild impact. Further, consecutive concussions compound the damage. So the NFL has set out criteria and protocol for independent medical testing before a concussed player may return to action. Clearly this is an attempt to protect the players - often from their own desire to return to the game or to play.
But these new findings are really not new at all. Practicing personal injury law in Ontario since the early 1990's I have been dealing with brain injuries for many years. Lawyers who represent injured plaintiffs have been pursuing claims for damages for brain injuries in cases where there has been a very brief loss of consciousness or no loss of consciousness for over 20 years.
For the most part insurance companies throughout North America have tried to rely on the historical approach to concussions - ie - no loss of consciousness (or brief loss) equals no permanent damage. Despite the medical evidence that has been available for many years, the insurance companies are almost always able to find a doctor that will give an opinion that no loss of consciousness or a few seconds loss of consciousness means the person has not suffered any long term damage to their brain.
Hopefully the NFL has helped raise public awareness to the point that insurance companies will reconsider using that approach to defending these types of actions. If they don't, hopefully juries will be much more aware of the potential for devastating brain injuries even in mild to moderate collisions. It would appear that defendants may be taking the consequences more seriously. La Salle University just settled a case when it agreed to pay a brain injured football player $7.5 million dollars. Now officially there is no admission of liability. But realistically, would the University pay that much money if they did not recognize the significant risk that it would lose at trial? In that case, a young man returned to the football field too soon after suffering a mild concussion. When covering a kick he was in a helmet to helmet hit that caused a second concussion. Tragically, the second concussion compounded the brain injury such that years later this young man is not truly capable of speaking orally. Although the University defended the action on the historical basis - that it was simply that second hit that caused all the damage (among other defences) it is clear from the fact of the settlement that the University was concerned that a court would find differently. I expect that the recent publicity regarding the NFL policies on head injuries may well have had a positive impact on La Salle's decision to settle.
The NHL now needs to relaize the seriousness of head injuries. Check out Head Shots in the NHL - Will They Take Heed from the Bob Probert Experience.
If you have been injured in an accident and suffered a blow to the head - get professional help. Injury Alliance is always here to help or simply search for the brain injury association in your area online. Do not let it go untreated and do not let an insurance company tell you nothing is wrong. The sooner these types of injuries are diagnosed and treament begun, the more likely you will have a complete recovery. Conversely, the longer it takes to diagnose and the injury goes untreated, the more likely sigificant longer term effects might result.
**Note: Blog postings are subject to a screening process, they may not appear right away.**
Speak up. Let us hear what you have to say about this.