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Tough cases to tackle

Attorneys avoid sports concussion litigation

Brookfield personal injury attorney Jeffrey R. Zirgibel of Pasternak & Zirgibel sits with a football helmet in his office Wednesday at the firm's Brookfield location. Though increased awareness of head injury concerns have led to recent changes in policy, personal injury litigation is still a tough call in concussion cases. (Photo by Kevin Harnack)

Brookfield personal injury attorney Jeffrey R. Zirgibel of Pasternak & Zirgibel sits with a football helmet in his office Wednesday at the firm’s Brookfield location. Though increased awareness of head injury concerns have led to recent changes in policy, personal injury litigation is still a tough call in concussion cases. Photo by Kevin Harnack

When veteran litigator Paul E. Bucher joined his school’s football team in seventh grade, one of the first things coaches had him do was pick out and test his helmet to make sure it fit.

“We were told to put it on, run and hit our head against a tree to see if it fit properly,” he said. “Of course, I did it.”

Equipment fittings have come a long way, but concussions are still a concern, especially in contact sports such as football, hockey and soccer. The National Football League, as well as the Wisconsin Interscholastic Athletic Association, recently enhanced policies regarding detection and proper treatment for those who display concussion-like symptoms.

Last summer, the WIAA strengthened its rules on concussions to prohibit athletes who exhibit symptoms from returning to practice or competition without written authorization from a qualified physician.

But despite the increased awareness, pursuit of personal injury cases tied to sports concussions in Wisconsin are still as rare as an Aaron Rodgers’ interception. Legal barriers such as municipal immunity for schools and the difficulty in proving negligence often make pursuit of concussion cases more expensive than they are worth.

“It would have to be a pretty extreme case,” said Bucher, who has never taken one on. “Such as a young man or woman coerced to go back in and take one for the team.”

The threshold for proving that a trainer or coach knowingly disregarded concussion symptoms and allowed an athlete to resume practice or game play is exceedingly high. Coaches or trainers employed by a school district enjoy negligence immunities for discretionary judgments.

“If a coach or team doctor who is an employee of the school district makes a decision that someone can continue playing, that is likely to fall under discretionary action and have total immunity in Wisconsin,” said Habush Habush & Rottier attorney Mark S. Young.

Even if an attorney succeeds in holding a coach accountable, negligence claims against school districts and their employees are capped by law at $50,000.

Milwaukee personal injury lawyer Randall L. Rozek evaluated a case last year in which a high school student sustained multiple concussions while playing football. He declined the case because the cost of hiring medical experts to testify would have exceeded the amount of recovery.

“The costs would have evaporated that $50,000 and the family would have ended up paying to win the case,” Rozek said.

Young assessed a high school football concussion case last year with the hopes of pursuing a product liability claim for a defective helmet. But a concussion isn’t the same as a broken arm, in terms of diagnosis and recovery, which makes it harder to prove to what extent the product caused the injury.

“Those are always very difficult,” Young said. “Trying to show a better helmet would have prevented concussions or brain injury is not easy because of how the brain can be injured.”

Six years ago, Arrowhead High School linebacker Adam Melka suffered a brain injury in a collision during a game which left him with long-term vision problems and spasticity on his left side. Milwaukee attorney Lynn R. Laufenberg pursued a medical negligence claim against Orthopedic Associates of Wisconsin, which had contracted with the high school to provide athletic trainers. Laufenberg argued that an undiagnosed concussion Melka sustained in practice less than a month earlier was compounded by the collision in the game and led to “second impact syndrome.”

In 2009, a jury found that OAW wasn’t negligent in its diagnoses, although Laufenberg argued that the case served as a catalyst for the WIAA changes.

“At the time there were no black and white rules and we couldn’t hold the trainer accountable,” said the partner at Laufenberg, Stombaugh & Jassak “If there had been, I think it would have made a difference in our case.”

In addition to the new rules, WIAA Deputy Director Wade Labecki said the organization is looking into implementing mandatory education for coaches on how to better diagnose symptoms.

Brookfield personal injury attorney Jeffrey R. Zirgibel runs a youth flag football league in the area and, though he has yet to tackle a sports concussion case, the league recently updated its policy regarding head injuries.

While concussions are rare in flag football, he suggested they are unavoidable.

“I think they are pretty common,” Zirgibel said. “But I think if there is any doubt today, you have to pull a kid and go to the doctor.”

Bucher agreed and said athletic associations are well served to have definitive concussion policies in place.

“Any organization is going to benefit from having something in writing about what to do when someone suspects a concussion,” he said. “Telling a kid to shake it off and go back in, those days are long gone.”

Jack Zemlicka can be reached at jack.zemlicka@wislawjournal.com.

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