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

Understanding and Preventing PIP-IME Abuse and Evolving Insurance Tactics

by Richard H. Adler And Arthur D. Leritz, Attorneys at Law

Insurance companies are very good at advertising:  “Like a Good Neighbor,” “You’re in Good Hands,” they are “On Your Side,” with visions of Snoopy, cute geckos and insurance “universities,” all designed to make it look like insurance companies are there to help the little guys get what they need in their time of need.  More and more we learn from your patients/our clients on how their auto insurer wants to send them for a “second opinion” to make sure they are getting the right medical care they need after a collision.

This type of persuasion to enlist the injured person’s cooperation is not only false, but we believe that is crosses the line and likely violation of state law.  The statute, Revised Code of Washington (RCW) 48.01.030 states:

 “The business of insurance is one affected by the public interest, requiring that all persons be actuated by good faith, abstain from deception, and practice honesty and equity in all insurance matters.  Upon the insurer, the insured, the providers, and their representatives rests the duty of preserving inviolate the integrity of insurance.”

Let’s take a closer look at the language of the law.  For example, “Act in good faith, abstain from deception and practice honesty and equity.”  This means that insurance companies are required, by law, to treat their insureds fairly, and to be truthful to them about their benefits.  Yet, insurance companies routinely tell their insured (your patient) that a medical examination will be conducted by an “independent” examiner.  They further claim the evaluation is sought because they are “concerned” about their insured and want to make sure the treatment being given is effective to resolve their injuries.  In reality, the IME is more properly and commonly known in the legal community as an “insurance medical examination” or even an “involuntary medical examination,” and its purpose stands in sharp contradiction to the insurance companies’ requirement to follow the law and treat their insureds fairly and honestly.

The law also requires that the insurer “preserve inviolate the integrity of insurance.”  Again, this requirement of fairness and honesty holds insurance companies to a high standard that they routinely fail to meet.  Insurers do more than “request” their insured attend an IME.  They demand it, with letters that typically compel attendance:

“A person making a claim shall be examined by any physician we choose and paid by us as often as we reasonably may require.”

In order to continue receiving PIP benefits, the insured must comply with the terms and conditions of the insurance contract.  The patient is placed in a “lose-lose” position.  If they attend the IME, treatment will be predictably terminated.  If they do not attend the IME, PIP benefits will terminate because of the insured’s failure to cooperate, forcing the insured to stop treatment prematurely and causing greater physical harm to the patient. The insurer can “hold hostage” treatment bills pending receipt of the IME report which invariably  adversely impacts the patient’s access to health care and their ability to follow through with treatment recommendations.  More recently, insurers have started unilaterally scheduling IMEs and then when the insured has a scheduling conflict – they cry foul and assert the insured is not “cooperating” for purposes of complying with the terms of the policy.

Time and again the insurer’s true purpose in requesting an IME is revealed by their selection of an examiner from the small group of doctors who repeatedly and routinely conclude further treatment is not necessary.  That true purpose is cost containment, a purposeful effort to reduce the amount of benefits paid out for care under the PIP policy. Where the insurer sets up the examination, hand-picks the examiner and pays the examiner or agency a significant fee, a negative outcome for the patient is often a given.  In essence, the insurer gets what it pays for, and the insured gets no benefit for the insurance premiums she dutifully paid every month

The PIP IME can have a toxic effect on many aspects of the insured’s claim.  The examiner’s report will be used to challenge the “reasonableness and necessity of care,” and/or can be used to challenge whether the treatment is related to the trauma. The IME report can unsettle a patient’s confidence in their own doctor.  The IME report often resurfaces during settlement negotiations with the liability insurer or the underinsured motorist insurer, creating obstacles for a fair and reasonable settlement without the cost and burden of litigation.

Another problem with the IME is how often disagreements arise between what the insured and the insurance doctor contend occurred during examination.   Experienced attorneys representing those injured in a traumatic event should be uncomfortable with the idea of a swearing contest at an arbitration or trial between an unrepresented, unsophisticated patient and a trained care professional that routinely performs IMEs.

Despite the obstacles presented to a patient and his/her doctor by a pending IME, the patient is not powerless.  There are actions to take which can help level the playing field and restore good faith and honesty to the IME process. They require consideration of the following pointers:

  1. Given the hostile and adversarial attitude of insurers, it is important for healthcare professionals to understand the importance of obtaining a patient centered second opinion evaluation for treatment purposes.  Second opinions ordered by the treating doctor provide a second knowledgeable source of insight into the patient’s current condition, diagnosis, causation and treatment required. They also add substantial documentary evidence that PIP examiners must take into account when arriving at their own opinions, and which can be used to rebut the IME report if the examiner does not.  These are true second opinions for clinical purposes to assist in the evaluation of treatment options.  A referral for a second opinion evaluation by a doctor such as a physical medicine rehabilitation specialist (physiatrist) or a chiropractic specialist needs to be made fairly early in the treatment phase, and before the insurer requests an IME.  The cost of the treating second opinion evaluation can be submitted by the second opinion doctor to PIP for payment just like any other care expense, and is subject to pre-approval by the insurance company.
  2. The healthcare provider needs to understand they have no right to confront, challenge, or change the insurer’s decision to require the patient to attend an IME. Only the patient, through his/her attorney, has standing to intervene and effectively challenge the insurer’s need for the examination, timing of the examination, selection of the examiner and parameters of the evaluation.  From a legal point of view, more can be done to protect a patient’s legal rights and access to healthcare prior to an IME occurring than after it. Patients should be encouraged to seek a legal consultation with an experienced personal injury attorney before attending the IME as it is a costly and time consuming process to reopen PIP benefits once the IME has cut off care and the claim has been closed.
  3. Effective personal injury attorneys will insist the insurer follow the dictates of WAC 254-30-395 which require an insurer to select an examiner that is “currently licensed, certified, or registered to practice in the same health field or specialty as the healthcare professional that treated the insured.”  The intent of this code provision is to safeguard the patient/insured’s choice of healthcare provider. For example, a PIP insurer may no longer request a medical doctor evaluate chiropractic care and vice versa.
  4. The gold standard for attorneys representing individuals subjected to an IME requires the attorney exercise the client’s right to have an observer present during the IME.   An observer’s presence at the IME ensures the procedures, tests, and results are reported accurately and the examination does not become an oral examination of the insured. Competent counsel will ensure that the observer is a licensed healthcare professional who will audiotape the examination to eliminate the swearing contest between the patient and the examiner as to what was and was not said during the examination.
  5. When an IME takes place and an adverse opinion is provided by the examiner, it is important for the treating doctor to obtain a copy of report. The report is easily obtained through your patient or his/her attorney, as the patient he/she has a legal right to a copy of the report under WAC 284-30-395. The report must be requested from the insurance company, not from the IME doctor. Once the IME report is in hand it must be carefully read and responded to by the treating doctor. This response will rebut erroneous, inconsistent or incomplete findings and conclusions, provide the findings which support ongoing injury requiring care, states the ongoing relationship of the injuries/conditions to the traumatic incident and what additional care is required to move the patient toward MMI.

Together, healthcare professional of all practice scopes and lawyers form the first line of defense between the injured person and debilitating physical injury, financial loss, and the cost containment practices of the insurance companies.  The medical/legal connection is natural and necessary today more than ever. The interests of the patient are best served when the healthcare and legal communities work together. This is the only way to make insurance companies take seriously their duty to “Act in good faith, abstain from deception and practice honesty and equity.”

While every patient may not ultimately need to hire an attorney who specializes only in personal injury and insurance law following a traumatic injury, every patient needs and can greatly benefit from a legal consultation with one.  It is our honor and privilege at Adler Giersch to provide knowledgeable, compassionate, highly rated representation to your traumatically injured patients.

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.