TOV Injury and Safety Blog

Court upholds insurer's second-guessing of doctor's long-term disability

David B. Cox was awarded long-term disability insurance and Social Security disability after suffering an event which his neurologist described as a stroke.  After paying benefits for two years, the ERISA insurer, Standard Insurance Company, "reevaluated" Cox's disability and determined that he could return to the practice of Family Medicine.  Cox filed an administrative appeal, which was denied, and then filed suit in Federal Court to challenge the decision.

NFL data unwittingly confirms football-dementia risk

A memo prepared by an attorney for the NFL's 88 Plan, a joint NFL and Players' Union project to identify and provide support for veterans suffering from dementia, inadvertently confirmed the disproportionate risk  of dementia that veteran players face.  The memo originally concluded that NFL veterans' risk of dementia did not exceed the statistically anticipated risk, when NFL experience was compared with other studies of broader population groups.  After experts used the NFL data and compared it with these studies in a statistically appropriate manner, however, the data yielded the opposite conclusion:  NFL veterans are experiencing dementia at "four or five times" the rate we would predict in a normal population.

Most experts on head trauma agree that concussions and other head injuries increase the risk of dementia, and most medical experts express the greatest concern about multiple head injuries or head injuries occurring before a prior concussion has fully healed.  The NFL, however, has been loath to accept the implications of this data, despite paying about 6 million dollars to 106 veterans in the past few years.

The program has identified 68 men, ages 60 - 89 who are receiving aid, and 35 others who received aid before they died.  It has also identified a number of other qualified veterans who have failed or refused to apply for aid.  When the age-at-onset of these veterans is taken into account and they are properly compared with non-football dementia research, it is apparent that NFL veterans are far more likely than others of similar age to suffer from severe dementia.  The author of the original NFL memo now admits that his contrary conclusion was flawed.

More evidence of the danger of head injuries in football

The death and autopsy of 42-year old Western Illinois football player Mike Borich added fuel to the evidence that repetitive blows to the head playing football can cause chronic traumatic encephalopathy (CTE), a condition similar to that suffered by many boxers.  The pathology of Borich's cerebral cortex demonstrated widespread damage to the former Chicago Bears and  Brigham Young University assistant football coach.  This adds to the evidence found on autopsy of eight NFL players who died between the ages of 36 and 52:  most exhibited extreme emotional problems and all exhibited irregular protein deposits and neurofibrillary tangles in the "thinking" or "executive function" and judgment locations of the brain.  It is thought that the physical condition leads to depression and substance abuse in many subjects.  While there may be a genetic predisposition toward the development of this condition, neurologists from the Boston University School of Medicine and the Rockefeller Neuroscience Institute took pains to emphasize that the condition can only be caused by physical trauma.

Supreme Court reverses lower court decision; allows State Farm to claim fraud

Raymond Andres was horribly injured in a car accident and now requires 24 hour attendant care.  State Farm was his auto (PIP) insurer and has been obligated to pay for this care.  State Farm initially entered into an agreement to pay Andres' family for the care provided, but later refused to pay, alleging that the agreement had been fraudulently arrived at by some form of collusion between Andres' attorney and State Farm's adjuster. 

University of Michigan study appears to confirm dementia risk among pro football players

The National Football League commisioned a study by the University of Michigan, intended to analyze whether head injuries and concussions occurring in football increase the likelihood of dementia.  Prior studies have suggested such a connection, and have also demonstrated an increased risk of depression and other head injury-related symptoms in veterans, long after the conclusion of their playing careers.  Apologists for the league, including Dr. Ira Casson, co-chairman of the league's "concussions committee" have regularly denounced the methodology of previous studies and called for further research.  Well, this week the League's first commissioned study confirmed that League veterans suffer a vastly increased risk of long-term brain injury complications.

Defense attempt to muzzle expert testimony is rejected

Raquel Robelin's baby was born with an APGAR of 2 and suffered a stroke in the nursery, leaving the child partially paralyzed with severe developmental limitations and significant cerebral palsy.  Robelin's attorneys claimed that the child's stroke was suffered only a few moments before her birth, and that late decelerations on the fetal monitor warned the O.B. Gyn that the child was suffering hypoxia and should have been delivered by C-section hours earlier.

In response, the Defendants claimed that Robelin's expert, a pediatric neurologist, should not be allowed to testify because Defendants argued there were no scientific studies in the medical literature directly supporting the doctor's opinion that the stroke occurred just prior to the child's birth.

Farm Bureau punished for "lying in the weeds" on experts

Laura Putnam-Wesener suffered a head injury, apparently, in a motor vehicle collision.  She sued the other driver and she also had to fight with her own insurer, Farm Bureau, to collect PIP benefits.  Ultimately, she settled the claim against the at-fault.  In the meantime, Farm Bureau sought leave of the court to add as expert witnesses the neurologist and neuropsychologist who had examined the injured woman for the at-fault's insurer.  The problem was that Farm Bureau sought to add the experts 18 months late, and the Court had already extended the expert witness deadline once to accommodate Farm Bureau's request to add expert physicians.

Eleven-year old with multiple fractures can't sue the drunk

In Cottrill v. Craig Kenneth Senter, two judges of the Court of Appeals recently held that an injured eighth grader could not sue the drunk who crossed the center line and hurt him.  The two judges ruled that even though there wer intimations of a head injury, and proven evidence of a fractured wrist, comminuted fracture of bones in the foot, and fractured ribs, the minor plaintiff had not alleged a "serious impairment of bodily function."

The dissenting judge pointed out that the drunk (with a .30 blood alcohol) caused the boy to miss two months of eighth grade and two full seasons of football, along with enduring several months of inactivity and an episode of difficulty breathing resulting from the multiple rib fractures.  He was still experiencing residual chest pain and had gone a full month without weight-bearing, along with needing attendant care for several weeks.

The two judges who dismissed the case determined that young Cottrill's injuries "did not change the trajectory of his life," applying the Engler Majority's Kreiner standard of "serious impairment."  The majority opinion pointed out, a propos of the latter conclusion, that the boy testified "he did not expect [his rib pain] to continue much longer."  We are glad to hear that an eleven-year old's anticipated prognosis for his own injuries is now admissible on the subject of "serious impairment."  Clearly the standard of intellectual analysis and discourse in our judiciary is becoming elevated.

Doctors' affidavits establish question of fact regarding traumatic brain injury

In MacDonald v. Koch and Norandex Reynolds Distribution Co. the Court of Appeals recently held that affidavits filed by the injured man's doctors were sufficient to create a question of fact with regard to whether MacDonald had suffered a traumatic brain injury that constituted a "serious impairment of bodily function."   MacDonald had sued the at-fault driver and his employer after a motor vehicle collision.  By law he must prove that he suffered a "threshold" injury, and the pertinent statute addresses the proofs necessary to prove a head injury separately from other injuries. 

Soldiers donate brain tissue for study of head injuries

The New York Times reported today that 20 active or retired members of the military have agreed to donate brain tissue for study after their death.  All 20 soldiers were victims of significant concussive brain injuries in the middle east and suffered substantial negative consequences.  They have made the donations to the Boston University Center for the Study of Traumatic Encephalopathy.  The study will be conducted by the Sports Legacy Institute, which recently published research linking pathology findings to concussion injuries and damages including cognitive decline and depression among professional football players.

Expenses for care of catastrophically injured Michigan no fault victims

Attorneys and the families of catastrophically injured no fault victims continue to watch the Michigan Supreme Court to see what will happen with PIP expenses in the situation where the families avoid institutionalization.  From 1974 until a few years ago, the Supreme Court took the position that families could be fully compensated for keeping a catastrophically-injured loved one out of an institution by providing care for him or her.  The Court held that if an expense was payable to an institution, it would be payable to the family, as well. 

Two new books published on intractable headaches, tumors and the practice of neurology

The New York Times Book  Review section identified two new books addressing these topics.  They are Brain Surgeon by Keith Black, M.D., published by Wellness Central, and The Body Broken by Lynne Greenberg, Random House. The physician reviewer thought that the two books complemented each other by offering the perspectives of treater and patient.

State Farm clobbered for repeatedly disputing PIP benefits

Antonina Juzba suffered a severe brain injury in a motor vehicle accident.  She was insured for no fault benefits by State Farm.  The insurer paid for her treatment initially, but stopped paying after she spent months at the Rainbow Rehabilitation Center and the Ann Arbor Rehabilitation Center (AARC). 

Additional evidence of cumulative brain injury from the NFL

The New York Times reported this week that brain damage commonly associated with boxers has been found in the brain of a sixth deceased former NFL football player under age 50.  Doctors at Boston University School of Medicine identified chronic traumatic encephalopathy (CTE) in the brain of Tom McHale who died at age 45 and played pro ball for nine seasons. This condition can be identified only on autopsy and has been found in each of the former pro ballplayers who have died under the age of 50 and been tested. 

Doctors explain recovery from ICU is often lengthy and ultimately incomplete

A series of studies underway at leading medical institutions point to the conclusion that ICU patients leave the ICU with significant residual problems.  Doctors involved in ICU care report that patients, even young ones, may be physically weak and/or emotionally and intellectually debilitated for years after even a short stay in ICU.

Federal Court rejects Michigan "reform" procedure on head injuries

In the recent Shropshire v. Laidlaw Transit decision, a panel of Sixth Circuit judges refused to follow Michigan "reform" procedures addressing how auto no fault head injury cases should be pursued.  Shropshire involved an alleged head injury suffered by a five-year old in a collision with a bus operated by Defendant.  Head injuries can be notoriously difficult to quantify when a young child is involved.

Recoverable expenses and services where catastrophically injured no fault victim lives at home

In Hoover v. Michigan Mutual, the Court of Appeals recently addressed the complicated issue of caring for a catastrophically injured accident victim.  Under Michigan's no fault act, the insurance company obligated to provide Personal Injury Protection [PIP] benefits to the victim (usually the insured's own company) is required to pay all of the expenses reasonable and necessary for the victim's "care, recovery or rehabilitation".  Michael Hoover was struck by a drunk driver, as a child, and has been cared for at home by his parents for more than 20 years.  The defendant in this case was the insurer of the drunk and responsible for Michael's PIP benefits because there was no auto insurance in his household.  Michigan Mutual had discontinued paying certain of Michael's parents' expenses and the lower court had awarded family these expenses, plus fees and costs.

$2.5 million verdict against Allstate for attendant care to paralyzed boy's family is upheld

In Bonkowski v. Allstate, the Court of Appeals rejected virtually all of Allstate's complaints regarding a 7-figure verdict holding that it had underpaid a family for no fault attendant care.  Shaun Bonkowski was struck by a car in 2001.  He was paralyzed from the neck down and also suffered a severe head injury.  The driver was never identified, however, Shaun was insured with Allstate through his family, and Allstate became obligated to provide him with no fault personal injury protection benefits (PIP).

Court refuses to apply expert limitation on closed head injury testimony

In TBCI PC v. State Farm, a panel of the Court of Appeals interpreted one of the recent tort "reforms", this one governing testimony in closed head injury cases.  Several years ago, the legislature adopted a rule that required accident victims to present the testimony of a physician who "regularly treats head injury victims" in support of any claim for head injury against the at-fault driver.  In TBCI PC, the court ruled that there was no similar limitation on State Farm, and that it could use the testimony of a non-qualifying expert in an effort to deny brain-injury medical benefits to its insured.

Bloomfield Hills School District loses bid to narrowly define "bodily injury"

A Bloomfield Hills School District school bus drove under closed railroad gates and was struck by a train approaching at high speed.  The train engineer, believing the bus to be occupied by school children, was traumatized by the event and later diagnosed with post traumatic stress disorder(PTSD).  He filed suit against the District, alleging negligence by the District's driver who attempted to beat the train by driving under the closed gates.  Since the School District could not prevail on the issue of "fault", it attempted to weasel out of responsibility by arguing that the train engineer had not suffered a "bodily injury". 

Head injuries to children playing sports

The New York Times reported on Saturday that children aged 5 to 18 suffer at least 96,000 sports-related head injuries each year in the U.S., according to the Centers for Disease Control.  According to the CDC, head injuries suffered while the brain is still developing are potentially more damaging and more should be done to assist children with recovery.  The Times article emphasized the value of rest after an injury and the fact that only before- and after- neuropsychological testing can really define the care needed by a victim.  The article noted that persons at particular risk of suffering long-term complications include persons who have suffered prior head injuries, persons with pre-existing psychological, psychiatric, seizure or hyperactivity disorders, and for some reason not presently understood, women.

More information on head injuries, developed from Mideast war veterans

The New York Times described head injuries as the "signature" injury of the war in Iraq, due to the prevalence of roadside bombings as an attack method.  One slight positive glimmer from this development is the resulting research on head injuries.  For years, closed head injuries have been a poorly understood consequence of domestic traumas such as motor vehicle accidents, falls and assaults. While some physicians have scoffed, other physicians have attested to life-altering changes stemming sometimes from even fairly mild head injuries.

Court of Appeals affirms more than $150,000 dollars in fees and costs where State Farm unreasonably denied PIP benefits to head-injured insured

In Morales v. State Farm, a panel of the Court of Appeals unanimously approved a jury verdict awarding more than $300,000.00 in PIP benefits to the head-injured plaintiff.  It also approved substantial fees and costs imposed by the the trial court, after the judge found that the PIP benefits had been "unreasonably denied".  State Farm had argued that Morales' disability and medical needs were unrelated to a 2002 motor vehicle collision in which he suffered a closed head injury.

Fifteen million dollar damage award upheld; discussion of race questions in jury selection

A recent case against an airport shuttle operator provided insights into the operation of damage claims where there is a "deep pocket" who has admitted fault.  It also addressed questions of race in the context of jury selection, and the threshold for proving head injury under the no fault law. 

One-third of returning Iraq veterans suffer from head injury or post-traumatic stress syndrome

   The entire country is learning more about head injury and PTSD as a result of the war in Iraq.  Recent reports document that fully one-third of returning vets suffer from one or both of these serious problems.

The Supreme Court adds insult to injury in a tragic case involving two young girls.

  In Estate of Buckner v. City of Lansing the "gang of four" on the Supreme Court recently reversed a decision allowing the family of two young girls to sue the City for plowing snow over the sidewalk and forcing the girls out into the road on their walk home.  One girl was killed and the other suffered a catastrophic head injury when they were struck by a motorist.  The majority--composed of four activist Republicans-- held that the City's duty to maintain sidewalks and reasonably safe roads does not include a duty to avoid blocking the sidewalk with snow.

Concussion and post-traumatic stress in returning Iraq veterans

This week the New England Journal of Medicine released the results of a large study examining head injuries and post traumatic stress in Iraq veterans.  According to the Journal's numbers, one of six combat troopers returning from Iraq reported  suffering a concussion during his or her tour.  The numbers also showed that the fact of suffering even a mild concussion put the troopers at higher risk for suffering post-traumatic stress syndrome.

Serious impairment: a new low

      The rights of accident victims struck a new low in Michigan with the Court of Appeals' unpublished November 15, 2007, decision in Jones v. Jones, et al.  The Court upheld the Trial Court's dismissal of an auto negligence claim relying on the Kreiner Supreme Court decision requiring a "serious injury" to have "life-altering" consequences.  Under the no fault act, an injured person can only sue the at-fault driver if the injured person has a threshold injury (i.e., death, permanent serious disfigurement or a "serious impairment of a bodily function).  In 2005, the Engler majority on the Michigan Supreme Court reinterpreted "serious impairment" to require a "life-altering" impact.

          Controlled by this interpretation, the Court of Appeals in Jones held that the injured victim didn't have a "serious" injury, DESPITE THE FACT THAT SHE SUFFERED A FRACTURED BONE IN HER LEG THAT REQUIRED SURGERY AND INSERTION OF A ROD AND SCREWS TO MEND.  The woman required in-home health care for "several months" after discharge from the hospital, had to use a wheelchair or walker when she left home during that period, and required assistance with her activities of daily living.   She claimed she was left with a permanent limp and the need to use a cane for support.  She was unable to stand for extended periods or to walk any significant distance. 

        The Court relied heavily on the fact that Ms. Jones had not worked for three years prior to this injury and that "minor problems with walking or standing" are not "serious".  It noted that her physician had neither diagnosed the limp nor prescribed the cane and that she could perform most household tasks.  Her life was "not so different" from before the injury and therefore did not meet the Kreiner standard of a "serious" injury.  We wonder if the Justices who redefined "serious" to exclude an injury of this nature would still argue it was not "serious" if it was inflicted on one of them or their family.  We seriously doubt it.

Helmet safety and concussions

        Injuries to NFL football players have kept the issue of concussion and closed head injury in the public eye.  Because of the recent retirement of the Kansas City Chiefs' quarterback (and past retirements of well-known players such as Steve Young), the public has become better educated about the potential long-term effect of multiple concussions.  It is estimated that more than ten percent of all high school football players suffer a concussion each season.  As the size and speed of the game increase, the rate of head injury also increases.

          Studies have shown that while many high schools attempt to refurbish helmets regularly, this process is haphazard and often does not include the padding in helmets.  In a recently documented case, a high school athlete suffered permanent deficits after sustaining a hard blow in a helmet that turned out to be more than twenty years old with the original padding.  Surveys have shown that this is not uncommon, and while football helmets are designed for multiple impacts (unlike bike helmets, for example) they do not have an unlimited life.

        A former Harvard quarterback has developed a new helmet that may revolutionize football helmet safety.  The so-called Xenith helmet has passed several testing requirements alrady and may be marketable at a reasonable price (initially $350.00).   One safety expert, Dr. Robert Cantu calls the helmet "the greatest advance in helmet design in at least 30 years."   Probably not all players would be assigned this helmet initially, however, it would be available for young men who have already suffered one concussion.  A company called SportSoft now maerkets tracking stickers to help equipment managers to better monitor each helmet's age and history.  Other companies (Simbex and Schutt) are also marketing specialized helmets that may improve safety, and for $1,000.00 Riddel sells a helmet that would help safety personnel to identify players who should not return to a game after a severe impact.

Head injuries and new research

    On August 1, 2007, the journal Nature published a new report documenting the case of a 38 year-old man who was awakened from a barely-conscious state through electronic brain stimulation.  The man had suffered a depressed skull fracture and severe brain injury in an armed robbery and beating, and had not regained full consciousness in more than five years (the NYT reported more than five years, NPR reported 8 years).  The man's recovery has not been complete, but he can now converse with his mother over simple issues; previously, he had remained in a virtual sleep-state.

        The recovery was achieved by means of a deep brain stimulator implanted  in the thalamus at a site that controls sleep and waking states.  Researchers were quick to point out that this procedure was not helpful when attempted with Terri Schiavo and that the patient must have evidence of some brain function for it to work.  This patient was minimally responsive over the years and testing showed that certain language and intellectual functions of his brain remained intact.  The procedure was performed at the Cleveland Clinic.  A neurologist at Cornell reported the results, along with the Clinic physicians.  They note that the patient shows clear, objective improvement in function during the 12 hours per day when the implant is activated, and that he regresses in function when it is off.  While he has thus far been unable to develop new memory, he is once again an individual--even if his functional capacity is incomplete.

Head Injury and Depression

  The University of North Carolina recently published a study involving more than 2500 retired NFL football players.  The study confirmed that players who suffered concussions during their career are far more likely to exhibit clinical depression years later.  The study directly contradicts the claims by the NFL that concussions don't result in long-term medical consequences, but corroborates the findings of medical studies showing that even "mild" head injuries can have a long-term impact.

    The study documented that NFL players who reported no history of concussion reported a depression rate similar to the population at large.  The likelihood of depression increased with an increase in the number of concussions suffered.  Players who reported suffering three mild head injuries exhibited a twenty percent likelihood of exhibiting clinical depression, compared to a reported rate well under ten percent in the "normal" population.

While the NFL criticized the study for relying upon a survey format, it was professionally peer-reviewed prior to publication and independent experts found that it was likely to be reliable.  The authors and the NFL are currently investigating whether a history of concussions increases the likelihood of cognitive impairment and early-onset Alzheimers or dementia. 

Previous medical studies have documented the serious long-term consequences which may flow from "mild" closed head injuries in civilian populations.  High profile examples from the NFL were cited by both sides of this debate to support or contradict these claims.  A neuropathologist claimed that repeated concussions probably contributed to the November 2006 suicide of Philadelphia Eagles linebacker Andre Waters, and New England Patriots linebacker Ted Johnson's neurologist linked his depression and cognitive decline to on-field concussions.

Studies performed outside the NFL have also documented a higher-than-expected fatality rate among head injury survivors, which experts attribute to a combination of impulsiveness, impaired judgment and depression. 

It seems apparent that victims of even mild closed head injuries should be examined and watched carefully for head injury sequelae, particularly including clinical depression.