Liability Issues Related to Chronic Head Trauma in Amateur and Professional Athletes
In the past few months the popular news media have been filled with reports
related to a condition known as chronic traumatic encephalopathy (CTE)
and its prevalence in both amateur and professional athletes. In this
post, the personal injury lawyer at the Doan Law Firm will provide a brief
review of the factors that appear to be closely linked to this condition
before explaining the legal options available to those who have suffered
What is chronic traumatic encephalopathy (CTE)?
Chronic traumatic encephalopathy (CTE) is a condition that is now considered
to be a long-term consequence of repeated mild (no, or only brief, loss
of consciousness) head trauma. It is seen almost exclusively in athletes
who competed in full-contact sports such as football, hockey, boxing,
as well as in professional wrestlers.
The symptoms of CTE are gradual in their onset and usually become apparent
about 10 years after the athlete ceases participation in those full-contact
sports. Current medical knowledge divides these symptoms into four stages
although there is often some degree of overlapping in the onset and severity
of symptoms in these stages.
The earliest Stage 1 symptoms of CTE can mimic attention deficit hyperactivity
disorder (ADHD) and may include difficulty in concentration, social difficulty,
and impulsive behavior. Periodic episodes of confusion and disorientation
are also frequently seen.
Stage 2 CTE is usually represented by emotional instability and hyperactivity.
As in ADHD, these symptoms usually lead to social difficulties and some
degree of social isolation. This stage is also associated with disorders
of both short- and long-term memory. The onset of irrational and impulsive
behavior, along with difficulties with decision-making, is considered
to mark the transition to Stage 3 CTE.
Stages 3 and 4 are marked by a worsening of Stage 2 symptoms. In these
later stages CTE is marked by movement disorders such as Parkinson disease
and difficulties with speech and coordinated movement. Psychological disorders
are common at this stage and may include aggressive behavior, depression,
and suicidal intent.
Diagnosis of CTE
As with other degenerative brain diseases such as Alzheimer syndrome, there
is no laboratory or diagnostic imaging test that can establish a definitive
diagnosis of CTE. This means that a presumptive diagnosis of CTE can be
made if the current symptoms are consistent with such a diagnosis and
there is a history of participation in contact athletics. Consultation
with, and testing by, a trained neuropsychologist may help in confirming
the loss of cognitive function as well as in establishing a baseline to
monitor the progression of this condition. The limitations of current
technology allow a diagnosis of CTE only by autopsy and special testing
of brain tissue obtained after the victim has died.
A recent study has demonstrated that CTE is responsible for loss of functional
brain tissue in those areas of the brain that are responsible for emotion,
coordinated movement, and memory formation/recall. This same study also
reported that 85% of donated brains of former full-contact athletes showed
signs of CTE and that 99% of former National Football League (NFL) players
had loss of brain tissue in the areas of the brain responsible for emotional
stability and long-term memory.
Liability issues and CTE
It is not surprising that the NFL initially disputed reports that many
of its former players may have developed CTE as a consequence of their
professional careers. However, it did agree (reluctantly, and after a
lawsuit had been filed) to establish a fund of $765 million that will
pay the medical expenses of those former players who are exhibiting symptoms of CTE.
The study mentioned above also demonstrated that the brains of non-professional
(high school and college) full-contact athletes were also showing changes
in brain tissue that were consistent with CTE. This suggests that high
school and college athletes may be at risk for the development of CTE
and other degenerative brain diseases such as Alzheimer and Parkinson
diseases at an earlier age than their non-athletic cohorts.
Given that CTE appears years after the event, liability may be difficult
to establish. However, the fact that the NFL now admits the existence
of this condition and its direct relation to repetitive head trauma will
be used to link high school and college athletics to similar symptoms
appearing in former athletes that did not rise to the level of professional players.
In general, and depending on the state where the former athlete resides,
the statute of limitations for filing a CTE-related lawsuit will begin
to run only after the diagnosis is tentatively established by a physician.
By example, the statute of limitations in Texas is two years from the
date the diagnosis is made. This means that if CTE is diagnosed on November
2, 2017 the victim would have until November 2, 2019 to file a personal
injury claim against the organization where the injuries that led to CTE occurred.
Since it is only recently that CTE has been established as a potential
cause of long-term neurologic disease, the legal precedents for such lawsuits
are only now emerging in the courts. However, the doctrines of proximate
and direct causes will most likely be upheld. Whether or not the courts
will hold that the presence of CTE-like symptoms in former athletes as
sufficient to establish liability per se will be open to debate.
In summary, CTE has been diagnosed with increasing frequency in former
athletes. Since CTE seems to form in athletes who participated in high
school and/or college sports as well as professional athletes, those experiencing
new changes in memory or motor skills would be well-advised to seek the
advice of a personal and accident injury lawyer to review the legal avenues
that may be available to such former athletes.