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The Center for Justice and Democracy at New York Law School shared a strongly worded letter to House Speaker Paul Ryan and House Minority Leader Nancy Pelosi speaking out against H.R. 1215. The letter, written on behalf of 80 major public interest organizations, highlights the damages that could result from passing H.R. 1215, the so-called Protecting Access to Care Act. Among the most notable passages is this:

“Even if H.R. 1215 applied only to doctors and hospitals, recent studies clearly establish that its provisions would lead to more deaths and injuries, and increased health care costs due to a “broad relaxation of care.” Add to this nursing home and pharmaceutical industry liability limitations, significantly weakening incentives for these industries to act safely, and untold numbers of additional death, injuries and costs are inevitable, and unacceptable.

The latest statistics show that medical errors, most of which are preventable, are the third leading cause of death in America. This intolerable situation is perhaps all the more shocking because we already know about how to fix much of this problem. Congress should focus on improving patient safety and reducing deaths and injuries, not insulating negligent providers from accountability, harming patients and saddling taxpayers with the cost, as H.R. 1215 would do.”

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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. 

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In a CDC report released in mid-March, the government organization revealed that the number of reported brain injuries has increased dramatically since 2007. Brain injuries have been frequently studied and reported on in the news and medical community, with brain injuries in professional athletes and youths taking center stage. In 2015, Will Smith starred as pathologist Dr. Bennett Omalu, who, after examining a deceased NFL player, discovers he had suffered from severe neurological trauma and disease. Dr. Omalu became the face and voice against football-related brain injuries after realizing many other former professional players suffered from the same symptoms. Also in 2015, the mother of a former youth athlete sued her son’s football program after he commit suicide and was found to have serious brain injuries resulting from repeated concussions.  Nevertheless, despite headlines about professional athletes and youth football players, the driving force behind this spike in brain injuries is surprisingly a result of the increasing occurrence of elderly falls.

Latest Statistics about Brain Injuries

The CDC found that suicide, suicide attempts, and falls were all contributors to the increase in traumatic brain injuries. The number of brain injuries as a result of car accidents has actually decreased in recent years.

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Much coverage has been devoted to the severe consequences of repeated brain injuries in adults, especially injuries related to professional athletics. Recently, some of that coverage has also indicated the severity of the effects of repeated brain injuries in college-level athletes as well as youth athletes. However, sports-related injuries are not the only source of brain injuries. Brain injuries can also occur from severe slip and walls, workplace-related accidents, vehicle collisions, and a variety of other incidents. Additionally, brain injuries can result from different medical conditions that potentially cause swelling in the brain. These types of brain injuries, called perinatal brain injuries when they affect full-term and premature infants, can be extremely harmful and may cause severe developmental or cognitive delays in newborns. According to Cerebral Palsy News Today, the National Institutes of Health will fund new research projects on potential treatments for perinatal brain injuries.

Goal of New Studies

One of the leading causes of perinatal brain injuries is known as hypoxia-ischemia (“HI”). HI occurs when an unborn child’s brain is deprived of oxygen for an extended period of time, thus causing the destruction of brain tissue. Such deprivation can cause the death of the unborn child or may lead to serious complications after birth such as cerebral palsy, epilepsy, developmental delays, motor impairments, or other significant impairments. The new studies will evaluate the best treatment methods for full-term and premature infants that have been exposed to HI as well as other perinatal brain injuries.

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The lawsuit filed against the NFL by former professional football players has been one of the biggest stories in professional sports over the last several years. Many former players have suffered the repercussions associated with chronic traumatic encephalopathy (“CTE”), and the lawsuit they filed in conjunction with other players suffering various traumatic brain injuries has netted a $1 billion settlement – a settlement which the United States Supreme Court has twice been asked to review. Players, fans, parents, and lawmakers have joined in calling on the NFL to do more to address the seriousness of traumatic brain injuries in the sport. Recently, The New York Times has reported that the NFL has tried to answer that call by spending $100 million in addition to a previous $100 million for the development of new technology and research related to head injuries.

Purpose of Additional Funds

After immense pressure and public outcry that previous funds have been used for self-serving purposes instead of addressing issues they were meant to address, the NFL has promised an additional $100 million in funding which it says will be used for “independent medical research and engineering advances” that are meant to address “prevention, diagnosis and treatment of head injuries; enhance medical protocols; and further improve the way the game is taught and played by all who love it.” Previous funding had been used for new equipment and long-term studies related to the impact of repeated concussions and head traumas. Critics have pointed out that funding for helmet improvements has done little to improve player safety because helmets are primarily meant to prevent skull fractures and do little to address the concern of repeated concussion and related side effects. To avoid continuing criticism of the way the new funds will be used, the NFL has also said that details related to the use of the new funding will be shared publicly.

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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.

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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.

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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.

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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.

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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