Derek Boogaard’s wrongful death lawsuit may open a big can of litigational worms

More than 4,500 sports figures suffering from traumatic brain injuries each get a small portion of the $756 million paid out by the National Football League (NFL). The settlement keeps relevant documentation out of court.

The NFL was mostly known for the caliber of its players. Now, it is known for hiding the risks of athletes sustaining multiple head injuries while scrimmaging on the field, head injuries that resulted in traumatic brain injury (TBI), also referred to as chronic traumatic encephalopathy (CTE).

It was a large settlement, and one that was hailed as progress for those who sued the NFL for negligently withholding information about the risks of multiple head traumas. However, this is not the end of the issue. While the out-of-court settlement did pay out a large sum, it also managed to keep exculpatory documentation out of court. It also meant no one heard what witnesses had to say.

Down the line, every sport that involves full-body contact of some kind, will, without a doubt, face the same or similar concussion litigation. It is not beyond reason to anticipate that the NHL, NBA, MLB, and the NCAA may face such lawsuits. In fact, the NCAA is already facing down a massive TBI lawsuit.

TBI litigation began with the NFL. It is now making its presence felt with lawsuits filed by survivors of hockey players who took their own lives as a result of CTE. A case in point is that of 28-year-old Derek Boogaard’s family launching a wrongful death lawsuit alleging the NHL is responsible for his brain trauma and addiction to pain drugs. The defendants in that suit are the NHL, its Board of Governors and well-known league commissioner, Gary Bettman.
If the attorney handling that case is able to prove that the NHL was negligent in the way they treated Boogaard in relation to handing out painkillers and encouraging him to fight, sustaining multiple head injuries, the case stands a chance of opening the floodgates of litigation for other similar lawsuits. There is also the possibility of an extremely large award for damages.

What may tell the tale of success is the evidence in the complaint that includes, but is not limited to, the fact that NHL staff and doctors allegedly wrote him prescriptions for 432 pills of hydrocodone in one month, injected him 13 times with a pain masking drug, wrote him further prescriptions for 1,021 pain pills and encouraged him, in his role of enforcer, to instigate 66 fights over 277 games, sustaining multiple head injuries. His autopsy showed he had Stage II CTE.

The CTE revelation and Boogaard’s treatment are strikingly similar to how many of the NFL players were treated. Should Boogaard’s wrongful death lawsuit be successful, watch for more lawsuits of a similar nature filed against other leagues.

Posted on: November 27, 2013 | Tagged

New research shows linkages between PTSD, dementia and Alzheimer’s

If recent research proves to be accurate, there is a connection between traumatic brain injury (TBI), dementia and post-traumatic stress disorder (PTSD).

In most cases, dementia is typically linked to a degenerative brain disease. That presumption may be about to be challenged by a U.S. psychiatrist who has discovered a connection between dementia, TBI and PTSD. All signs point to war veterans having twice the normal chances of developing dementia, largely due to their exposure to head pounding sound waves from improvised explosive devices (IEDs).

The latest research is pointing to serious brain injury as being the link to an increased risk of dementia and, by extrapolation, hastening the onset of Alzheimer’s. Alzheimer’s is usually associated with the build-up of tau protein in the brain. Speculation has it that brain injuries are also precursors to tau build-up, or that the TBI is a precipitating factor in opening the door for Alzheimer’s. This observation would then be applicable to those who play contact sports and suffer a large number of serious concussions.

The group, led by Dr. Kristine Yaffe, was the first to prove that there is a connection between PTSD and a risk of developing dementia. However, they are not the only group to have come to the same conclusion.

While researchers are not certain about the precise mechanism of the detected linkages, they believe that chronic stress, such as that experienced in a battle zone, or changes within the brain, are the potential precursors to dementia/Alzheimer’s. This raises an interesting question. If PTSD were to be successfully treated, would that lower the risk of dementia?

This isn’t a question that can be answered any time soon, and most of the men and women who have TBI and/or PTSD would need to be cognitively monitored as they age. Are there solutions for coping with these diseases? Currently, while there is some progress in treating vets and sports victims with brain injuries, not much can help mitigate the ongoing battle they face every day to regain what was once a normal life.

While research is ongoing and funding is in place to address these issues, only time will weigh in with answers. Recently, there was a $60 million project, funded by the Department of Veteran’s Affairs (VA) and the Department of Defense (DOD), to track down the links between neurological degeneration and TBI. It’s a can of worms that once opened may lead to some form of assistance for those who have sustained head injuries that have robbed them of the ability to be, think and act they way they used to.

What is the connection between TBI and the law? In the sports arena, if players are not adequately informed of the risks of playing, even with a good helmet, and are repeatedly sent on to the playing field despite having sustained a concussion, and they develop dementia, the negligence of the coach and team owners come under scrutiny. Should their case win in court, they may be awarded compensation for their injuries.

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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