California Personal Injury Law Case Notes : California Personal Injury Lawyer & Attorney : Kristine Meredith : The Danko Law Firm : Car Accidents & Product Liability

Following a recent threat by Air Canada to pull its sponsorship dollars, the NHL announced a revision of the NHL Protocol for Concussion Evaluation and Management. The Protocol now requires:

1.  Mandatory removal from play if a player reports any listed symptoms or shows any listed signs of a concussion;
2. Examination by the team physician in a quiet place free from distraction and use of "an acute evaluation tool" by team physicians rather than a quick rinkside assessment.
3. The NHL board will be asked to elevate the standard for holding a team and its coach accountable if there are a number of "repeat offenders" with regard to supplementary discipline.
4. A safety engineering firm will evaluate all 30 arenas and determine what changes, if any, can and should be made to enhance player safety.
5.  A 'blue-ribbon' committee of former players including Brendan Shanahan, Rob Blake, Steve Yzerman and Joe Nieuwendyk will look at safety issues.

The Ontario Hockey League has been a proponent of concussion education. Its president David Branch gives a nod to the NHL revisions but emphasizes that it does not go as far as the OHL which penalizes all hits to the head.  Also, the OHL has circulated a DVD to its players. OHL said:

The message to players is: You have to recognize these symptoms and you have an obligation to tell your team . . . We’ve got a problem with head injuries in our game and you are part – part – of the solution. It wasn’t intended to scare them. It wasn’t a threat – that we plan to suspend you. It was intended to educate, to get buy-in from the players, and to support the players.”

Thumbs up to Air Canada and the professional hockey leagues.  As they encourage education about brain injuries education, their fans will also better understand the seriousness of concussions.

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“Second Impact Syndrome” refers to mild brain injuries suffered repeatedly within a short period (hours, days, or weeks). Although all brain injuries are serious, second impacts can be catastrophic or even fatal. The American Academy of Neurology has developed guidelines  for deciding when it is safe to return to play after a first injury. The Academy recommends that, to reduce the risk of the second impact syndrome, an athlete who suffers a head injury resulting in temporary confusion, amnesia, or other alteration of mental status should not return to play until examined by a health-care provider familiar with these guidelines. Sport oversight committees such as California Interscholastic Federation, have begun to adopt these recommendations.

The guidelines rely in part on self-reporting by student athletes or close observation by coaches and other players. Unfortunately, athletes are often reluctant to admit their injury. To prevent their child athlete from suffering a second impact catastrophe, parents should do the following:

• Know and recognize the symptoms of a brain injury. As described here.
• Learn what the coaches know about brain injuries.
• Find out whether the school has policy for handling brain injuries.
• Educate your child about the catastrophic risks of a second impact and
• Emphasize to your child the danger of hiding even the seemingly minor symptoms of brain injury.
  

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A child's head injury can have devastating effects.  To reduce the risk of the injured child suffering a second and perhaps worse injury, medical professionals should use the term “mild traumatic brain injury” to describe the child's head injury rather than “concussion.”

In a study to be published in the February issue of the journal Pediatrics, Carol DeMatteo, an associate clinical professor at McMaster University in the School of Rehabilitation Science, found that children whose injuries are labeled as "concussion" are allowed fewer days in the hospital and are sent back to school sooner than their counterparts with head injuries not diagnosed as "concussion."

Our study suggests that if a child is given a diagnosis of a concussion, the family is less likely to consider it an actual injury to the brain. These children may be sent back to school or allowed to return to activity sooner, and maybe before they should. This puts them at greater risk for a second injury, poor school performance and wondering what is wrong with them.

Professor DeMatteo said using the term "mild traumatic brain injury" instead of "concussion" will help people to better understand what they are dealing with so that they can make decisions accordingly.  

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Most victims of a Mild Traumatic Brain Injury recover fully within one year of their injury. But, sometimes, victims can be left with long-term cognitive problems that affect both their jobs and their family lives for years to come.  Despite the potentially devastating effects of a mild brain trauma -- also known as a " concussion " -- the injury seldom appears on X-Rays, CT scans, or other common imaging techniques.  Without such objective proof, the wrongdoer who caused the injury invariably argues that its victim suffered no brain injury at all, and that the victim is simply making up his symptoms.

One sure way to prove that a victim suffered a brain injury is to prove that the accident caused the victim to lose consciousness, or "black out."  Though an accident victim can suffer a brain injury even without losing consciousness, doctors agree that if an accident causes a victim to lose consciousness, however briefly, brain injury has always resulted. Unfortunately, many victims who black out never realize it, and so insist to paramedics or doctors at the hospital that they did not. Therefore, the first challenge for a lawyer representing the victim of a Mild Traumatic Brain Injury is proving that the brain injury even exits.

Brain specialists can help. A neurologist can conduct sophisticated tests, such as PET scans and SPECT studies.   These studies may show an impairment in brain functioning that doesn't appear on an MRI.  A neuropsychologist can administer objective tests of memory, attention, problem-solving, sensory perception, planning, organization, and other cognitive functioning. The results of such testing can sometimes prove that the accident victim, does, in fact, suffer from a brain injury.

When confronted with proof -- from either cognitive test results or PET/SPECT studies -- that there is a brain injury, wrongdoers argue that the victim's symptoms are attributable to a previous accident and not the one that they caused.  And, in fact, many of those who suffer long term effects from a Mild Traumatic Brain Injury have a prior concussion in their medical history.  However, research shows that one concussion -- even if it caused the victim no lasting symptoms -- leaves the victim at risk of permanent symptoms should he receive another concussion.   That is why professional football players retire after receiving multiple concussions despite "feeling fine", and why boxers who don't retire eventually become "punch drunk."

To prove that the victim had fully recovered from the prior injury, and that it was the most recent concussion that caused the symptoms, it can be helpful for family, friends, and employers to testify.  These witnesses can frequently establish that the victim exhibited no changes in his behavior, mood, or cognitive abilities until after the most recent injury.
 

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Some traumatic brain injuries can be seen on an MRI scan. Many, however, cannot. The structural damage caused by the trauma is just too subtle. Of course, even subtle changes in brain structure can cause profound changes in brain functioning. Simply because  the brain injury cannot be seen on an MRI, it doesn’t mean that it doesn't exist.

While an MRI (upper photo) shows abnormalities in the brain’s structure, a PET scan (lower photo) shows abnormalities in the brain’s functioning. PET scans do this by measuring the distribution of metabolic activity in the brain.  The parts that are not experiencing the expected biochemical activity have a functional abnormality. The PET scan, then, can serve as objective evidence of a brain injury that can’t be seen on an MRI.

PET scans can help prove that a victim has suffered a traumatic brain injury.  But before a judge will allow the jury to see the PET scan, he has to be convinced that the PET scan reliably depicts what the testifying expert says it depicts,.  The judge will also need to be convinced that PET scanning is widely accepted in the medical community.

Doctors frequently use PET scans to find changes in brain functioning in an Alzheimer’s patient or an epileptic.  They less commonly use them to diagnose victims of traumatic brain injuries. This is one reason why some judges are reluctant to allow PET scans to be used in a trial of a traumatic brain injury case. These judges, however, are often more willing to allow the PET scans to be shown to the jury when the scan was ordered by the victim's treating doctor for the purpose of diagnosis or treatment – before any lawsuit was filed.
 

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Doctors once believed that, whenever a blow to the head resulted in a brain injury, the victim would lose consciousness. Without a loss of consciousness, they would say, there could be no brain injury. That's no longer the case. Now, medical professionals agree that a brain injury can result without the victim ever blacking out. Further, we now know that traumatic brain injury can result even without a blow to the head, such as in cases of "shaken baby syndrome" or, in adults, as a result of a whiplash-induced contrecoup injury.

An injury victim is considered to have suffered a Mild Traumatic Brain Injury (frequently referred to as a "concussion") if a trauma has caused a disruption of brain function as evidenced by any of the following:

• A loss of consciousness, however brief; OR
• Inability to recall events immediately before or after the accident; OR
• Any alteration of mental state (for example, feelings of being dazed or confused) right after the accident.

A concussion can result in a long list of symptoms. The symptoms are sometimes called "post concussive syndrome" and can include:

• pain,
• fatigue,
• sleep problems,
• mood changes,
• headaches,
• inability to concentrate,
• word finding difficulties and other cognitive problems,
• memory problems,
• frustration,
• loss of sense of smell,
• nausea,
• dizziness,
• visual problems,
• ringing in the ears,
• frequently becoming lost or confused,
• feelings of depression.

The symptoms may not appear until days or weeks after an injury. Fortunately, most victims of mild traumatic brain injury completely recover from their symptoms within a year. However, a minority of victims -- perhaps up to 15% -- do not.  For some of those people, "mild " traumatic brain injury can lead to a lifetime of problems. The problems can be devastating.  For example, the victim's inability to concentrate can result in his losing his job and mood changes can place great stress on family relationships.

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