Concussions and the NFL: Legal Liability for Rushing a Player Back to Play Too Soon?

It is indisputable that cerebral concussions are commonly sustained by football players, professional or amateur. As time has gone by, concussions have gone from being considered relatively minor injuries to becoming a cause of deep concern for long-term cognitive problems that often result therefrom.

An interesting article in The New York Times last week by Alan Schwartz about the recent concussion sustained by Pittsburgh Steelers quarterback Ben Roethlisberger and the expertise of concussion management at the University of Pittsburgh Medical Center pointed out some apparently significant differences between how concussions are dealt with in the National Football League as compared to elsewhere, particularly in the willingness to allow players suspected of having sustained a concussion to return to the game in which they were injured. Whether this will eventually result in the imposition of civil liability in a future lawsuit brought by a player is an interesting question.

For example, it is known to be dangerous for an amateur athlete to return to a game in which he or she is injured, and may lead to long-term cognitive problems. But an NFL player can return to the game if he passes motor, sensory and cognitive tests immediately after sustaining the injury and again 15 minutes later.

According to the Times article, normal Steelers procedure is for the player to sit on the bench and be questioned about his location, identity, the play and so on, to gauge any amnesia. Motor and sensory tests are followed by more memory exercises, and doctors ask if the player has any nausea, a severe headache or visual distortion. Even if he passes all tests, the player sits for 15 minutes and then is re-tested, both before and after physical exertion, to see if symptoms return. If they do not, he can return to the game. Later, every player suspected of having a concussion undergoes the computer-based ImPACT neurological test, a 20-minute test that more objectively evaluated memory, brain processing and visual motor skills. A player who scores significantly lower than his baseline number from the preseason is held out of practice or game because his brain is considered more susceptible to another concussion and greater damage.

The ImPACT test is now used by hundreds of high school, college and NFL teams. Several survey-based studies that found a heightened incidence of cognitive impairment, depression and dementia among retired NFL players who recalled having many concussions.

Sixteen athletes, including six former NFL players, have agreed to donate their brains to a program that will study the long-term effects of concussions, particularly regarding a condition known as chronic traumatic encephalopathy (C.T.E.), which has been likened to pugilistica dementia seen in boxers. Five out of six former N.F.L. players’ brains that have been examined by post-mortem tissue analysis have been found to have suffered from C.T.E.

Nonetheless, the NFL’s committee on brain injuries has consistently contended that there is no known risk. The league gives all players a pamphlet that states, “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is managed properly.”

The NFL is conducting its own study on concussions, with the results expected to be published in 2010. So could an NFL player sue contending that he should not have been allowed to return to a game because he sustained additional brain injuries therein, arguing that the NFL deviates from good and accepted practice because only it allows players to return to the game in which he was injured? It seems as though there currently exists a sufficient body of research to establish that the seriousness of a concussion cannot be evaluated for at least 48 hours after the initial injury. Thus a player could be allowed to return to a game at a time that the full extent of danger that he faces cannot be gauged.

Could this be negligence, if not perhaps reckless? What do you think?

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