Chicago Brain Injury Lawyer Blog

After a couple of false starts, H.R. 1215, the Protecting Access to Care Act is going to the House floor this week.  This massive medical malpractice bill also applies to nursing home and drug and device cases.  The bill caps non-economic damages at $250,000, eliminates joint liability for economic and non-economic loss, caps attorney fees, has a restrictive statute of limitations and says that a doctor and a pharmaceutical company cannot be named in the same lawsuit.

This means, among many other things, that finding an attorney to handle a brain injury case will be more challenging and that financial compensation for injuries that are hard to quantify (such as pain and suffering) cannot surpass $250,000. 

The bill will not get better during floor debate.  The only amendments that will be allowed are amendments that make the bill worse for patients.  The debate on this bill will begin on Tuesday with vote on final passage scheduled for Wednesday. 

Earlier this year, a judge approved a $1 billion settlement on behalf of former professional football players against the National Football League. After being asked to reconsider the large award in this case, courts earlier this year upheld the award. According to an article in USA Today, the United States Supreme Court has now received a second petition filed by other former players asking them to reconsider the settlement amount and reject the current sum based on how the verdict treats current brain injuries versus potential future brain injuries.

The New Petition’s Claim

The original ruling creates a fund from which injured players suffering from the consequences of repeated traumatic brain injuries can collect damages for medical treatment and other expenses related to such injuries, primarily the occurrence of chronic traumatic encephalopathy (“CTE”). CTE is a condition that results from repeated traumatic brain injuries that can cause erratic behavior and other severe issues related to the brain. CTE cannot be diagnosed until after a person has died because it involves examining the brain for certain telltale signs of CTE, like protein deposits and other characteristics identifiable only after death. In cases where a player is deceased, their family can collect damages in a specified amount to help compensate for injuries related to traumatic brain injuries that result in CTE. The original settlement has a cut-off date for claims related to CTE of April 2015, meaning the fund created by the settlement will only pay out to those affected by injuries related to CTE prior to that date. While the fund created will continue to pay out for victims suffering from Alzheimer’s disease, Parkinson’s disease, Lou Gehrig’s disease, and dementia – all also potential consequences of repeated traumatic brain injuries – it will not cover future instances of CTE. Former players have attempted to point out in their petition that this effectively bars similarly situated plaintiffs from benefiting from the settlement if they were found to have developed CTE after a death occurring after the cut-off date.

The initial media frenzy surrounding the well-known lawsuit from former professional football players against the National Football League highlighted the grave consequences of serious and repeated traumatic brain injuries, as well as their link to the development of chronic traumatic encephalopathy (“CTE”). Since the beginning of that lawsuit, other professional sports players have followed suit. Lawsuits have also arisen from college athletes and other nonprofessional sports players throughout the country. Recently, Sports Illustrated reported on a lawsuit advocating for even younger victims of traumatic brain injuries during athletics has been filed against a national organization that provides youth football and cheer & dance programs. The lawsuit seeks to have CTE listed on the helmets of youth football players in the hopes that it will serve as a warning to parents and participants of the danger of traumatic brain injuries and their consequences for youth sports players.

The Issue

CTE is a concern for professional athletes, and more research has indicated it should also be a concern for youth sports players. One of the named plaintiffs in this lawsuit became suspicious about the potential long-term effects of sports-related traumatic brain injuries on her son, who tragically passed away after crashing his motorcycle at high speed. The crash was similar to other erratic, reckless behavior the man had demonstrated in the last two years of his life. Having heard about the professional sports lawsuits that were pending at the time of her son’s death, the mother consulted with plaintiffs in that lawsuit and became suspicious that her young son may have also suffered from CTE. She made the difficult decision to have her son’s brain tested, and results indicated that he did indeed suffer from CTE. Along with the mother of another young man that had committed suicide after also suffering from CTE, they filed the current lawsuit against the youth sports organization.

Recently, numerous lawsuits have been filed against athletic associations charged with protecting players’ safety in different sports. These high-profile lawsuits have shed more light on the severity of traumatic brain injuries and the potential repercussions of those injuries. With increased attention from the media related to the occurrence and treatment of traumatic brain injuries, medical professionals have been focusing on techniques to identify and treat sports-related brain injuries in an effort to mitigate the consequences that often result from such injuries. A recent article from Scientific American highlights the potential for spinal tap testing to help medical professionals understand the potential severity of a sports-related traumatic brain injury.

Understanding Risk Factors

Sports-related injuries often result in concussions, which can cause temporary symptoms of confusion, memory loss, headaches, and other mild indicators. For many people, the symptoms of a concussion will resolve on their own, though medical professionals often recommend certain precautions be taken to ensure that the concussion is not more severe than it was originally thought to be. Sometimes, these symptoms persist longer and result in a condition known as post-concussion syndrome. Basically, post-concussion syndrome is diagnosed by a medical professional based on symptoms that persist beyond the normal time frame for those related to a minor concussion.

Traumatic brain injuries have received a great deal more attention in the past few years thanks to high profile sports-related lawsuits centering on traumatic brain injuries sustained as a part of being involved in professional athletic competitions. With the increase in attention, and with new developments in identifying and treating traumatic brain injuries at early stages, medical insurance claims for traumatic brain injury treatments have increased. According to the United States Centers for Disease Control and Prevention (“CDC”), the most recent available data suggests that nearly 2.5 million people sustain traumatic brain injuries on an annual basis in this country. However, in many cases the cost of treating a traumatic brain injury is not confined to an initial visit to an emergency room after the injury has occurred. Individuals with traumatic brain injuries are more likely to require hospitalization after initial treatment, which has a huge impact on the cost of treating such injuries. The CDC says traumatic brain injuries are also a contributing factor for around 30 percent of all injury-related deaths in the United States, making prolonged treatment and hospitalization crucial in ensuring a person’s successful recovery in many situations.

Cost of Treatment

The true cost of treating a traumatic brain injury can be hard to establish and depends greatly on the individual victim’s circumstances. Not only are mounting medical bills a concern, but the injury may also require significant financial sacrifices from family members. Costs to treat traumatic brain injuries may reach well into the hundreds of thousands of dollars for an individual victim, especially in circumstances where rehabilitation or continued medical care is required. In many cases, victims may not have insurance or may not have adequate enough insurance coverage to pay for required treatment and follow-up medical care. Sometimes, a caregiver needs to take an extended leave from work in order to help meet a victim’s needs, which further drains a family’s financial resources.

Some of the immediate effects of traumatic brain injuries are noticeable once a victim has sustained such an injury. Severe brain injuries cause loss of consciousness and coma, which are generally graded using the Glasgow Coma Scale to establish the severity of the brain injury. Short-term side effects of such injuries can include short-term hospitalization and rehabilitation. These short-term consequences are the result of side effects that doctors can observe through extensive medical testing shortly after the injury occurs and in the weeks following the injury.

However, while new research may allow medical professionals to better diagnose traumatic brain injuries and predict their immediate consequences, it is still extremely difficult to anticipate the long-term side effects of traumatic brain injuries. Many of the long-term side effects do not manifest until weeks, months, years, or even decades after an injury has occurred. Unfortunately, medical science has little research to allow medical professionals to accurately predict how a traumatic brain injury will affect a specific individual. However, research ahs shown some of the more common effects that traumatic brain injuries – especially repeated injuries – can have on victims. It is important to keep these potential long-term side effects in mind when planning for a victim’s care, or when pursuing compensation from someone that caused such an injury. Brainline.org provides some information on the potential long-term side effects of moderate or severe traumatic brain injuries so that families and victims can plan accordingly.

Anticipating Long-Term Effects

A great deal of attention has recently been given to the importance of proper treatment of traumatic brain injury to help prevent further complications after the injury has occurred. Many times, traumatic brain injuries have lasting effects that cannot be predicted immediately after the injury, and some of the repercussions of these injuries are not seen for months or years after the injury has occurred. However, another concern related to traumatic brain injuries is the chance of death associated with them. According to Medscape, recent research published in The New England Journal of Medicine has shown that decompressive surgery may decrease the risk of death caused by traumatic brain injury. The average age of participants in the study was 33, and most had sustained their injuries through severe falls, assaults, or vehicle accidents.

What does the research suggest?

Decompressive surgery, the medical term for which is decompressive craniectomy, is the removal of a large section of the skull after a traumatic brain injury has occurred to allow the brain to expand from swelling after an injury. In a study that randomly selected hundreds of patients from different hospitals throughout the world, known as the Randomised Evaluation of Surgery with Craniectomy for Uncontrollable Elevation of Intracranial Pressure, a decrease in deaths related to traumatic brain injury that caused brain swelling was noted. The study spanned several years and found that victims of traumatic brain injuries causing severe swelling from incidents such as severe falls or vehicle accidents who underwent decompressive surgery had a fatality rate of 26.9 percent compared to the control group’s fatality rate of 48.9 percent. Members of the control group did not undergo decompressive surgery.