New Medical Study Connecting CTE to Sports Concussion

By Arthur D. Leritz, Attorney at Law

The law firm of Adler Giersch has been at the forefront of brain injury awareness and advocacy for many years with its founding partner, Richard H. Adler, as a local and national advocate for safety in youth sports.  He drafted legislation and organized a strong local coalition of doctors, sports organizations, insurers, and many others that led to the Zackary Lystedt Law, named after his client, the nation’s very first law designed to prevent traumatic brain injuries in student athletes by requiring school districts and nonprofit organizations using school facilities to adopt policies for management of concussion and head injury in youth sports.   Following the passage of Washington’s Lystedt Law, every state followed its core principles and now all 50 states have a mandatory removal and managed return to play protocol in place that is aimed at protecting youth athletes from sustaining life threatening head injuries while playing sports.

A recent medical study published in in the Journal of the American Medical Association (JAMA) shows that there remains ongoing need for awareness, education, implementation and enforcement of player safety to prevent traumatic brain injuries from youth sports to professional athletes.

On the professional sports level, the recent study looked at the brains donated for research by former NFL greats such as Hall of Famer Ken Stabler to journeyman lineman. We have all heard about Tiaina “Junior” Seau, former linebacker for the San Diego Chargers, Miami Dolphins, and the New England Patriots, who died May 2, 2012, from a self-inflicted gunshot to the chest.  Not to mention Terry Long, Andre Waters, Shane Dronett, David Duerson, and Ray Easterling, all of whom also ended their own lives.  Most recently, there was 31 year old wide receiver James Hardy, who died June 7, 2017, when he drowned in a river.   Hardy was a second round pick for the Buffalo Bills in 2008.  His death was recently ruled a suicide.[1]  While it has yet to be determined if Hardy had CTE, what is true for all the other athletes above is that autopsies confirmed the presence of CTE in every one of them.

Chronic traumatic encephalopathy (CTE) is a progressive neurodegenerative disease that has often been associated with repetitive blows to the head.  Early symptoms can be mild disorientation and headaches and progress to memory loss, erratic behavior, dementia, depression, and thoughts of suicide.  While this was commonly associated with boxing initially, research is showing that this is not just boxing but also football and other sports as well.

The new study published in JAMA suggest that participation in football may be related to the development of CTE.[2]  The researchers examined 202 brains of former deceased football players.  What they found was the presence of CTE in 177 players, or 87% of those studied.[3]  Of those studied, researchers found the most common cause of death for participants with mild CTE pathology was suicide (27%) and for those with severe CTE pathology was neurodegenerative (47%).    The study also found that cognitive problems were common in those diagnosed with CTE, with symptoms occurring in 85% of the mild cases and 95% in the severe cases.  Language and visuospatial symptoms occurred in 66 of the mild cases and 54% in severe cases.[4]

The donors to the brain bank program were primarily college and professional level players, even though there are many more players who only played on youth or high school teams.  Particularly noteworthy is that the severity of CTE pathology was distributed across the highest level of play from high school to professional players. All former high school players involved in the study had some level of CTE pathology, and the majority of former college (56%), semiprofessional (56%), Canadian Football League (86%), and NFL (86%) players had severe pathology.[5]

This study is important as it continues the public’s discussion about traumatic brain injury and roads that can lead to prevention and safety. Sports related head trauma is one cause of neuro-cognitive changes but so are other causes such as falls, motor vehicle crashes, bicycle, and pedestrian mishaps. It is clear from this study and others that rule changes are needed to make football and other sports that are known to cause brain injuries, such as girls’ soccer, more safe. The problem of brain damage showing up in NFL players later in life begins with youth sports.  This is why parents, athletes, coaches, and school administrators need to more fully embrace and enforce the core principles of Washington’s Lystedt Law.

 


[1] As reported in USA Today, July 19, 2017.

[2] Mez et al., “Clinical Evaluation of Chronic Traumatic Encephalopathy in Players of American Football,” JAMA. July 25, 2017;318(4):360-370. doi:10.1001/jama.2017.8334

[3] Ibid.

[4] Ibid

[5] Ibid.

Promising Developments for Survivors of Traumatic Brain Injury: New Studies Link Increased Physical Exercise with Enhanced Neuroplasticity

By Melissa D. Carter, Attorney at Law

 

“They thought that the brain was too sophisticated for its own good.  That during evolution it became so complex that it lost the ability to repair itself and to restore lost functions or to preserve itself.  They were wrong.  Because it turns out that its very sophistication can be the source of a unique kind of healing…the brain’s way of healing”

Doidge, Norman, MD, Introduction.  The Brain’s Way of Healing: Remarkable Discoveries and Recoveries from the Frontiers of Neuroplasticity.  James H. Silberman, New York, 2015.  Print.

The human brain consists of approximately 100 billion neural cells.  Until fairly recently, the prevailing wisdom was that people are born with a finite number of brain cells and that they will not regenerate once dead.  However, we now know that certain areas of the brain under very certain circumstance have the potential to generate new cells (called neurogenesis) and create new neural pathways, often referred to as “neuroplasticity.”  Neuroplasticity is the ability of the brain to change and adapt in response to experience.  This understanding has led to many exciting developments in brain science, and in particular, in relationship to brain injury recovery.  Current understanding is that there are two types of brain neuroplasticity:
  1. “functional”: which is the ability of the brain to move functions from a damaged area to undamaged areas; and
  2. “structural”: which is the brain’s ability to morph  its physical structure as a result of learning.

Neuroplasticity, if it occurs, can be an important piece of recovery following a traumatic brain injury, and can play a role in both cognitive and physical rehabilitation following brain injury. Part of brain rehabilitation is aimed at trying to rebuild connections among the nerve cells, or neurons. This “re-wiring” of the brain, according to theory and practice, may under certain circumstances, make it possible for part of a previously damaged function area to be assisted by another, undamaged area. The connections among the cells, at times, appear to be receptive to this type of change and expansion.

The brain’s plasticity is influenced by many variables, including diet, exercise, cognitive engagement, emotional state, sleep and stress level.  Evidence from both human and animal studies suggests that certain types and degrees of enhanced physical exercise can help facilitate neuroplasticity of certain brain structures, including enhanced cognitive function responses, as well as affective and behavioral responses. As researchers get closer to understanding neuroplasticity and brain injury, the developments may have far reaching impacts on brain injury recovery and rehabilitation.

A recently published special paper in the journal Neural Plasticity looked at multiple recent studies from the past 12 months and seemed to connect certain types of physical exercise with growth of new brain cells, increasing memory center, improving IQ scores and theorizing the possibility of preventing brain deterioration as one ages.  The paper cites 6 different international studies that used brain scans, EEG recordings, blood sampling and saliva sampling to investigate the exercise-induced brain activity and volume changes in different brain areas, including frontal and central regions of the brain, the hippocampus, cerebellum and motor cortex.  The studies looked at the impact of a variety of physical exercise, such as dancing, playing handball, walking or cycling.  The outcome variables referred to cognitive (memory consolidation) and motor performance measures.[1]   The results of the multiple studies suggest that physical exercise may play a role in triggering neuroplasticity and, thereby, could possibly enhance an individual’s capacity to respond to new demands with behavioral alterations.

Lifestyle strategies proven to promote neurogenesis include:

  • Interval training exercise;
  • Reducing overall calorie consumption;
  • Reducing carbohydrate consumption (especially grains and sugars);
  • Enough healthy fat consumption to eliminate insulin resistance; and
  • Enough high-quality omega-3 fats and eliminating damaged omega-6 fats (processed vegetable oils).[2]

Advances and developments in rehabilitation in the area of brain health are ongoing.  At Adler Giersch, we remain devoted in our drive to study, learn, and advance the understanding of traumatic brain injury, rehabilitation and treatment options so that we can provide the best legal representation to our clients.  If we can be of assistance, simply contact us via email or give us a call.


[1] https://www.hindawi.com/journals/np/2016/3643879/ Neural Plasticity, Volume 2016 (2016), Article ID 3643879, 3 pages “Neuroscience of Exercise: Neuroplasticity and Its Behavioral Consequences.” Henning Budde, Mirko Wegner, Hideaki Soya, Claudia Voelcker-Rehage, and Terry McMorris.
[2] http://articles.mercola.com/sites/articles/archive/2015/01/15/neuroplasticity-brain-health.aspx

Insurance Premiums and the Myth of Liability Insurance “Crises”

By Jacob W. Gent, Attorney at Law

Imagine an industry that sold a product so important that each and every person and business in America needed it.  A product so important that the industry could threaten a state’s economy by pulling it from the market.  An industry not accountable to any federal agency, regulated only by often powerless state agencies, and exempt from anti-trust laws that police price-fixing and collusion with competitors. Add to this: this industry is legally permitted to keep its financials secret from regulators, law makers and the public; allowing it to advance its own political and legislative agenda at the expense of the American public.

This industry exists.  It is the property/casualty insurance industry which provides auto and homeowners insurance for individual consumers, medical malpractice insurance for physicians, and liability insurance for businesses and local governments.

Over the last four decades, the insurance industry has manufactured so-called “liability insurance crises” to drastically raise premium rates making insurance unaffordable or unavailable for many individuals, businesses, and professions.  During each of these “crises,” the insurance industry blamed a ‘litigation explosion/runaway jury award epidemic’  to justify rate hikes and called upon lawmakers to enact ‘tort reform’ laws which strip away victims’ rights and impose unjustified and crippling caps on damages juries can award to victims. These reforms, they argued, were the only way to reduce escalating premiums.

Yet studies have shown that there is no evidence to support the “litigation explosion/runaway jury award” argument.[1] Nor is there any evidence to prove that the passage of tort reform laws has reduced insurance premiums.[2]

For example, tort reform measures enacted in the mid-1980’s failed entirely to lower insurance rates in the following years, despite the promises to legislature and the voting public that it would.[3]  Indeed, states with little or no tort law restrictions saw similar changes in insurance premiums as compared with states that had not imposed significant restrictions on victims’ rights.[4]

Contrary to the industry’s justification; it is not a ‘litigation explosion’ which caused rate increases but the industry’s own “boom and bust” economic cycle at the root of the alleged “liability insurance crises.”  Due to anti-competitive (yet entirely legal) underwriting practices and the relatively unchecked power in setting premium rates and establishing reserves for future claims payments,[5] insurance companies  undergo a self-made cycle of “hard” and “soft” markets.[6]

To understand this boom and bust cycle, one must first understand that insurance companies make the most of their money from investment income by investing premium dollars received from policyholders in the stock market.  Specifically, they invest the “float” that occurs in the time between when premium dollars are received by the insurer and when losses are paid out by the insurer.[7]  Insurers engage in fierce competition for market share and premium dollars to invest, resulting in the underpricing of policies during periods when the market is strong, high interest rates are present, and/or insurers’ profit margins are robust.  This is called a “soft market.”  When the stock market plummets, interest rates drop, and/or cumulative prices cuts cause profits to fall, insurers begin increasing premiums and reducing coverage, creating a “hard market” and a corresponding “liability insurance crises” for policyholders.[8]

These boom/bust cycles occur nationwide, regardless of a state’s particular tort law regime.  Each time such a crisis occurs, insurers routinely blame state tort laws as the root cause.  Lawmakers, under pressure from the insurance industry, respond to the insurance “crises” as if the carriers were the victims, rather than the creators of the problem.  These “tort reform” laws passed in response to the self-created insurance crises are designed to increase insurance company profits, and restrict an injured party’s access to justice, or place limitations on damages to compensate injured victims.[9]   Lawmakers have passed these measures based on incomplete and/or inaccurate information provided by the insurance industry and its lobbyists, as federal and state laws do not require insurance companies to reveal information that could be used to fairly examine the actual financial health of the industry.[10]  Moreover, under state law, insurance companies are permitted to conceal important information that would inform lawmakers about the claims insurers raise during times of alleged crises to justify drastic rate hikes.  Such withheld data includes the amount of reserves held by insurers to pay future claims, the amount paid for different types of claims, actual sums paid to victims, and the amount insurers pay in cases involving multiple defendants.[11]

What can be done to remedy this situation?  To start,

  1. Congress and state legislatures should require insurance companies to disclose substantially more meaningful data regarding their actual financial well-being which justify the industry’s huge premium increases and limitations on coverage during hard markets.
  1. States should pass laws and regulations requiring insurers to provide information on premium and investment income, reserves held, and actual claim payouts and expenses incurred.
  1. Congress should also repeal the federal anti-trust exemption under the McCarran-Ferguson Act to ensure all domestic and foreign insurers and reinsurers comply with federal anti-trust prohibitions applicable to other industries. By prohibiting price fixing and monopolies, the resulting competition in the insurance marketplace would yield lower premiums and expanded availability of coverage to consumers.
  1. At the state level, legislators should enact stronger regulation and oversight of the insurance industry.
  1. States should repeal anti-competitive laws and provide increased resources to underfunded and understaffed insurance compliance departments so they can be pro-active in investigating, reviewing, and approving any proposed premium increases. States should also repeal anti-rebate and anti-group laws which prohibit insurance agents from offering discounts to policyholders and the formation of groups to negotiate favorable premiums based to economies of scale.[12]

Part of the mission of Adler ♦ Giersch ps is to promote public awareness of insurance and legal issues affecting those who have been injured by the negligence of others or by insurers that do not act in good faith in handling personal injury claims.  Our consultations are complimentary and confidential.


[1] See e.g.: Adler Giersch, ps-The Advocate, Civil Litigation by the Numbers: The Truth Insurance Companies Don’t Want You to Know About of “Runaway Juries” and “Frivolous Lawsuits” (June 2016).

[2] See Center for Justice & Democracy, Premium Deceit: The Failure of “Tort Reform” to Cut Insurance Prices (1999).

[3] See Americans for Insurance Reform, Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms America (December 2011).

[4] See Americans for Insurance Reform, Stable Losses/Unstable Rates 2016 (November 2016).

[5] The McCarran-Ferguson Act of 1944 exempts the insurance industry from anti-trust laws, allowing it to on components of insurance prices and prohibits any federal regulation or Federal Trade Commission scrutiny of the insurance industry.

[6] See Americans for Insurance Reform, Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms America (December 2011).

[7]Id. For example, there is about a 15 month lag in auto insurance claims, while in medical malpractice, the lag is anywhere between 5 and 10 years.

[8] See Americans for Insurance Reform, Premium Deceit 2016: The Failure of “Tort Reform” to Cut Insurance Prices (November 2016).

[9] Id.

[10] Id.

[11] See Americans for Insurance Reform, Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms America (December 2011).

[12] Id.

 

Adler Giersch is Raked #1 Small Business to Work for by Seattle Business Magazine

SBM Top 100 Web

The law office of Adler Giersch was honored to receive the #1 Ranked Best Small Business to Work for from Seattle Business Magazine.  Companies are chosen based on results from confidential employee surveys with categories including benefits, executive leadership, work environment and responsibility/decision making.

New Law Affecting Uber and Lyft Ridesharing Insurance Coverage

By Lauren Adler, Attorney at Law

With the help of mobile technology, the “sharing economy” is booming. Smartphone apps allow us to arrange services through a simple tap of the screen. Transportation, a service traditionally available only through public transit or taxis, is now offered by ordinary drivers using their own vehicles to take nearby passengers to their desired destination for a fee less expensive than a taxi and in a manner more efficient than a bus. Businesses like Lyft and Uber that offer this service, called ridesharing, have become wildly popular in cities like Seattle that do not boast of a stellar public transportation system. Now, you need not wait on the corner hoping a cab will drive by, or rely on a bus schedule that can be unpredictable. You can request a ride, get a price quote, enter your destination address, track your driver’s location and time estimate until arrival, and pay the fare without ever getting out your wallet. It is an enticing new way to get around.

However, until recently, insurance coverage to passengers in rideshare vehicles was questionable at best. Personal auto insurers caught on to the ridesharing phenomenon early and began inserting exclusions into their policies which barred coverage to anyone involved in a collision if the rideshare vehicle was used for “commercial, non-personal purposes.” This meant that the only coverage available to a person injured in a collision involving a rideshare vehicle was the coverage afforded by the ridesharing company itself, which was frequently minimal and sometimes non-existent. Prior to July 2015, rideshare insurance was completely unregulated in Washington State. There was a big risk to passengers climbing into an Uber or Lyft that, in the event of a car collision, they could be left underinsured or barred from coverage completely, depending on the at-fault driver’s personal policy, the rideshare driver’s personal policy, and whether the ridesharing company had decided to purchase any commercial insurance at all.

This all changed in July 2015 when the legislature enacted Senate Bill (SB) 5550. The new law establishes statewide mandatory minimum commercial insurance limits for all ridesharing vehicles on the roadway. SB 5550 creates regulations for “commercial transportation services” as separate and apart from other public transportation and vehicles for hire already regulated by state law. The law clarifies that commercial coverage must begin as soon as the driver logs into their ridesharing network and is waiting for a fare request.

At all times before the driver has accepted a ride, the law requires that the vehicle be covered with minimum liability benefits of up to $50,000 per person/$100,000 per accident, as well as $30,000 for property damage, and Underinsured Motorist (UIM) benefits and Personal Injury Protection (PIP) coverage to the extent required by existing law (currently UIM minimum to match the liability coverage, and PIP minimum of $10,000).

Once the driver accepts a ride and is in route to pick up the passenger, the coverage increases to single limit liability coverage of $1 million, UIM coverage of $1 million, and PIP coverage to the extent required by existing law. This coverage remains in effect until the passenger exists the vehicle.

Under the law, the ridesharing company has the duty of obtaining proof that their affiliated drivers have insurance coverage. If they do not, the company must provide it anyway. Furthermore, if a driver is logged into more than one ridesharing network at the same time (both Uber and Lyft, for example), responsibility is split equally between the companies.

The new law also prohibits insurance companies from denying personal auto insurance coverage to an insured solely on the grounds that the vehicle is also used for ridesharing. This protects drivers who want to participate in the ridesharing economy, but need to still drive their cars for personal use.

The law also requires the ridesharing company to cooperate with all collision-related investigations and to retain all data and communications related to the crash for up to fourteen months.

SB 5550, now in effect, regulates ridesharing insurance coverage and is a drastic improvement in providing public safety to Washington citizens, given the widespread use of ridesharing. It ensures better coverage and protection for consumers using this new mode of transit.

If you have a patient who was injured while in a Lyft or Uber and they are getting the run-around from insurers, drivers, or ridesharing businesses on who is responsible for payment of treatment, simply have them give us a call for a complimentary consultation.