By Attorney Dan DeCiccio
Special to THELAW.TV<http://thelaw.tv>
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A recent ruling by a Florida appellate court means that student athletes who suffer from brain injuries will receive smaller awards for their injuries.
Ereck Plancher died tragically in 2008 after collapsing in an off-season football work out session supervised by his University of Central Florida coach, George O'Leary, and staff. The trial in Orlando was hotly contested and widely reported. The evidence presented, which the jury accepted, was that players were forced to practice without safety precautions and staff being available to treat players who collapsed from heat exhaustion.
The wrongful death suit was filed against the University of Central Florida Athletic Association (UCFAA), which denied all of the negligence allegations and claimed protection under the sovereign immunity doctrine of Florida law, which limits damages to $200,000 when the defendant is a government agency (such as a public university).
On August 16, 2013, Daytona's Fifth District Court of Appeal ruled against a Plancher, reducing the jury's verdict of $10 million to the $200,000 cap.
The Orlando Sentinel, reporting on the Fifth District's decision, stated that Florida is one of at least 33 states with laws limiting what state agencies pay in damages. Absent a successful claim bill in the Florida Legislature, which is a difficult hurdle to overcome, or a reversal of the decision by the Florida Supreme Court, also not an easy task, Plancher's damages are limited to the $200,000 maximum under the sovereign immunity law.
Concussions in the National Football League, and lawsuits against the NFL due to repeated concussions and chronic traumatic encephalopathy (CTE), draw a lot of media attention. Brain injury cases like Plancher's receive little or no publicity because the deceased was a student athlete and the damages are small because of sovereign immunity. Even worse, this case is precedent-setting. The Plancher case could have harmful effects on brain-injured student athletes who play for state schools or agencies (like the UCFAA).
It is a well-known fact that acute medical care and long-term brain rehabilitation of victims of moderate to serious brain injury is very expensive. Treatment at a brain injury facility can range from $1,000 to $2,500 per day depending on the nature of the injury and the treatment required. A $200,000 damage award is inadequate to cover even the initial treatment. Imagine the implications of a 20-year-old student athlete harmed by the negligence of his coach or staff suffering a brain injury on the playing field who needs round-the-clock care to survive and later thrive?
It has been reported that student athletes may be even more susceptible to brain injury than highly-compensated professionals. An article in Rolling Stone magazine highlights the dangers presented by concussions, especially to high school football players, resulting in symptoms ranging from post-concussion syndrome to death. Concussions to the head are a form of traumatic brain injury. The article points out that the mechanism of injury with concussions "isn't bruises and bleeds but rotational and linear stretching and tearing" within the brain. Helmets cannot prevent concussions.
The Rolling Stone article blends the stories of a high school player, an NFL player, and a college player who suffered concussions on the gridiron, with the current science of brain injury to produce an informative article that incorporates the emerging evidence about traumatic brain injury from repeated concussions.
There is the tragic story of Eric Pelly, a high school football player turned rugby player who suffered multiple concussions, and died suddenly at the age of 18 from brain swelling. Brain tissue from Eric's brain showed evidence of CTE. Studies of brain tissue from former NFL players like Iron Mike Webster, who suffered from dementia as a result of repeated concussions, had evidence of CTE. Doctors studying Eric's brain found poisoned tau cells, evidence of CTE.
As reported by Rolling Stone, while controversial, second impact syndrome appears to affect only children or those under the age of 25. Nathan Stiles suffered from a concussion playing high school football. While he complained of headaches, he was cleared to play. In his last game, he felt terrific head pain and later died in the hospital. Nathan died not having major head trauma in his final game, but even minor trauma to the head may have been sufficient enough to cause second impact syndrome. Nathan, like Eric, had poisoned tau cells.
The Rolling Stone article notes that some children and NFL players are more susceptible than others to CTE from repeated concussions. There is genetic variability — NFL quarterbacks like Joe Montana and Steve Young show no outward signs of CTE or dementia even though they sustained multiple blows to the head. In years to come, scientists may find the genetic markers or factors to identify unhealed concussions.
For now, in light of the Plancher decision, student athletes in Florida suffering a brain injury on the playing field due to the negligence of a coach or coaching staff who play for state schools or agencies are limited to damages of $200,000.
The author, Dan DeCiccio, is an attorney at the Orlando, Florida law firm of DeCiccio & Johnson<http://www.deciccio.com/>.