Matt Chaney has written on the issues surrounding football – legally – mainly at the juvenile level. In this lengthy blog post (found HERE) Chaney talks about;
- Football Lawsuits Surge Against Schools
- Court Defenses and Safety Concepts Hardly Shield Juvenile Football
- ‘Concussion Testing’ Unlikely to Prove Valid in Court as Diagnostic
- Various Injuries and Issues Pose Legal Bombs for Juvenile Football
- Should Juveniles Play Tackle Football in America?
As with about everything that Chaney has produced it is WELL WORTH the read and time. Below is the topic on the “concussion testing”, I have taken the entire chapter with permission from Chaney;
Many well-publicized experts, led by neurosurgeon Dr. Robert Cantu and North Carolina professor Kevin Guskiewicz, designate written and computerized neuropsychological testing as legitimate standard of care for cerebral injury in American football.
The claim is contentious and central to the divide between those authorities who believe “safe” football is possible versus those who disagree. The latter side ranges in mindset from mildly optimistic for positive reform to the belief no need exists for the sport, especially where kids are concerned.
The side pro-concussion management is led by commercial developers of testing, “football experts” with MDs and PhDs—supported and promoted by the NFL, NCAA, public schools and youth leagues—who contend their studies validate intuitive-based assessments for detecting brain injury among athletes.
For the burgeoning service industry of brain trauma in sport, so-called concussion testing leads technologies in marketing.
The No.1 product, computerized ImPACT, has racked up thousands of sales for millions of dollars based on a wide public trust—even if without a page of independent literature affirming diagnostic quality.
“Concussion testing” is the popular remedy to crisis in football, touted as solution by news media, coaches, school administrators, game officials, trainers, physicians, researchers, educators and politicians.
But NP assessments have not faced court scrutiny to-date while attracting an impressive opposition that grows louder.
No longitudinal study supports the methods and instruments as valid and reliable for diagnosis and return-to-play assessment, and though developers promote the product as “Valid. Reliable. Safe.” their fine print states concussion testing should only be one tool of a multi-faceted protocol. ImPACT developers have ignored my requests for interview.
If anything of real record, concussion testing accumulates denouncement, led by informed critics and a decade of negative peer review.
In the military, officials and insurers say the computerized test ANAM lacks independent validation, and some suggest it a failure. The tool “is insensitive and nonspecific,” Lt. Gen. Eric Schoomaker, Army surgeon general, told lawmakers. “It misses about a quarter to a third of (soldiers) who are concussed and includes about 50 percent of (those) not concussed.”
Christopher Randolph, professor of neurology at Loyola University, has compiled unfavorable reviews on NP testing of athletes for years, recently finding faults in “baseline” testing of ImPACT software—designed and marketed by associates and a physician of the NFL, neuropsychologists Mark Lovell and Micky Collins and neurosurgeon Dr. Joseph Maroon.
“The use of baseline neuropsychological testing in the management of sport-related concussion has gained widespread acceptance, largely in the absence of any evidence suggesting that it modifies risk for athletes,” wrote Randolph, detailing unacceptable ImPACT rates of false-positive and false-negative results for his 2011 article in Current Sports Medicine Reports.
Dr. Bennet Omalu, pioneer football neuro-pathologist, said ImPACT testing is “a fraud” as concussion diagnostic, criticizing anyone claiming it a quick fix, ranging from marketer to politician, for epidemic brain trauma in the game.
“ImPACT testing is not a diagnosis tool,” Omalu, chief medical examiner of San Joaquin County, California, said in a phone interview. “It is a forensic follow-up to monitoring a patient, to evaluate the amount of damage. Using (computerized) testing in the acute phase of injury can actually make the symptoms worse. Am I making sense?”
Journal reviewer Dr. Lester Mayers cites lack of specificity and sensitivity of NP products on mass market. “Basically, they’re all unsuitable for clinical work with concussions,” Mayers said, estimating 20 to 25 percent of afflicted athletes are missed.
The public rhetoric and expectation of ImPACT for solving football’s head injuries, much less protect game personnel in court, leaves independent experts confounded.
“The response is infantile,” said Mayers, director of sports medicine for Pace University Athletics, during a phone interview. “The ImPACT people have taken over the idea that somehow they can tell you when it’s OK that the athlete goes back.”
Insurers see problems already, before a possible trial test like the pending Dougherty family lawsuit. Some insurers determine computerized concussion testing raises liability risk for schools and personnel and decline to underwrite the practice, for concern of either misuse or faulty technology.
Most recently, a statement of the Army Surgeon General’s Office reads in part: “the scientific community has yet to identify an objective biomarker or other test that accurately determines when the brain has completely healed from the concussion.”
State governments stop short of explicitly mandating suspect NP testing for school athletics, among anti-concussion laws passed nationwide. Indeed, politicians know a large portion of juvenile football cannot afford the purchase and employ of software applications.
The typical statute does present an implied standard of intuitive-based brain assessment, serving society’s predominant goal for quickly returning injured athletes. But politically charged perception of effectiveness, buttressed by media and echoed by law, does not guarantee proving validity or even reasonableness of concussion testing in court.
And critics deride new measures as minimalist, anyway, except for effecting increased liability risk and caution around contact sports. The laws’ commonly broad language require removal of a presumed symptomatic competitor until clearance by a general practitioner or lesser technician, most assuredly involving NP testing.
Resultant practices in juvenile football are less than ideal overall, or legally inadequate, according to follow-up reviews and observations.
Many athletic trainers do not understand or want to employ computerized assessments like ImPACT while many physicians feel challenged or reluctant as well.
Dr. Charles Tator, Canadian neurosurgeon and researcher on sport-related brain trauma, emphasizes no objective assessment protocol exists, much less a user-friendly model employed in minutes on an acutely concussed athlete who cooperates and reliably self-reports.
“The best method of assessing the effects of a concussion is through a trained observer, a trained physician and a compliant patient. If you have a physician who isn’t trained and a patient who does not want to be compliant, you get nowhere,” Tator told The Toronto Globe and Mail.
“There are two types of cognitive tests. There is the interactive test—20 minutes, $50—where you come up with a numerical score as a baseline and redo half-way through the (athletic) season and see the difference. Sounds good on paper, but does it work? We don’t know the answer. Some doctors and experts rely on these tests, while others say they’re unproven.”
“I’m somewhere in the middle,” Tator continued, “but I know this: I rely on formal, neuropsychological testing, by which I mean a few hours of a neuropsychologist’s time to assess a player’s cognitive functioning. It’s very costly, unfortunately, so you can’t apply it to everybody.”
In American sports medicine, authorities tell me that many neurologists cannot handle concussion in athletes until years of acquired experience, extensive trial-and-error along sidelines.
Even Dr. Cantu, NFL brain researcher and drafter of NP testing format, a foremost promoter of “concussion management,” an authority trusted by millions of parents and children in American sport, had to acknowledge in late 2010 that “the majority of physicians who are in practice today would not be qualified to manage athletic concussions.”
All sum, “concussion testing” likely cannot prove effective and defensible as a “reasonable” standard of care, per tort definition, for tackle football organs and personnel in America.