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Lawsuit targets PSU gridiron concussions

Seattle firm leads effort to change rules on players' health

A Seattle law firm is suing Portland State University, Oregon Health & Science University and the National Collegiate Athletic Association on behalf of a PSU football player attorneys say suffered a concussion and was cleared to return to play without adequate medical care.

The lawsuit filed in Multnomah County Circuit Court is one of a handful of such suits against universities around the country by the firm of Hagens, Berman, Sobol, Shapiro. In each instance, the firm is representing an athlete who suffered a concussion in either football or soccer. The plaintiffs’ attorneys are claiming that in each case the universities did not provide concussed athletes adequate treatment and did not follow established protocols before allowing the athlete to resume playing.

The PSU case involves Zach Walen, who allegedly suffered a severe concussion after receiving a blow to the head during his first PSU football game in September 2012. The suit alleges that PSU athletic staff failed to identify the concussion during or after the game and that Walen received medical attention only after his family took him to the hospital.

The suit alleges that Walen failed a cognitive test necessary for him to return to football and was examined by PSU team doctor Charles Webb, who is also director of Sports Medicine at OHSU, who failed to sign a medical release. Yet, according to the suit, Walen was allowed to continue playing and participated in eight games during the 2012-13 season.

The suit alleges that Walen began to experience “unexplained anger, along with overwhelming feelings of depression and anxiety.” His memory also suffered and he suffered “crippling headaches,” according to a statement from his attorneys, who say Walen suffered a permanent brain injury. The suit seeks $5 million in estimated damages for Walen’s loss of earning potential and medical expenses.

The PSU suit emerges against a backdrop of increased scrutiny of the way schools at all levels deal with concussed athletes. An Aug. 28 Tribune story cited a number of neuroscientists who believe a large percentage of athletes are allowed to return to play before they are completely healed, and that more severe and long-lasting brain injuries can result from second and third concussions. In addition, the Tribune learned that the majority of Oregon high schools do not have a trainer at football and soccer matches.

PSU and OHSU officials said they could not comment on the case because it involved ongoing litigation. Plaintiff’s attorneys said Walen was not available for comment.

Changes to guidelines

Hagens, Berman, Sobol, Shapiro has also been involved in concussion litigation against the National Football League, and in July settled a suit with the NCAA. That settlement established a medical monitoring program for college athletes that will be cost the NCAA about $70 million during five decades and will track concussed athletes. It also established an NCAA funded $5 million research effort looking at prevention and treatment of concussions.

In addition, the NCAA settlement made changes to the association’s concussion management policies. Among the changes — a medical professional trained in concussions will be present at all contact sport games, and all athletes who suffer concussions will need to be cleared by a physician before returning to play — one of the points of contention in the Walen suit against PSU.

Catherine Gannon of Hagens, Berman, Sobol, Shapiro says PSU had similar guidelines in place that could have protected Walen, and yet he was back at practice two weeks after his severe concussion.

“He was just told he had to start playing and so he started playing,” Gannon says.

The suit, according to Gannon, is part of a broader effort to change the way schools deal with concussed athletes. “Unfortunately this is a trend,” Gannon says. “There are guidelines in place for a reason. When they are not being enforced they provide no protection for the athlete. We’re seeing more and more cases of guidelines being there on paper but nobody following them.”

The collection of lawsuits filed by the Seattle firm just might change the way schools deal with concussed athletes, according to sports law experts interviewed by the Tribune.

Malpractice lawsuits have dramatically changed fields such health care, says Jack Sahl, who teaches sports law at the University of Akron Law School. Sahl predicts schools will be reluctant to settle cases such as Walen’s out of court for fear of setting a precedent. But this reluctance may quickly fade, Sahl says. Courts have recognized that universities owe intercollegiate student athletes a special duty to protect from them foreseeable harm, such as injuries from concussions, Sahl says, and court documents could reveal the universities are making substantial money off their athletes and scrimping on medical treatment after concussions.

Simply fighting a series of concussion cases in court could get onerous and expensive for schools, Sahl says.

“I’m not saying it’s the most cost effective way, but it might be a very powerful way of getting an industry or institution to be very careful following its own protocols,” Sahl says.

Even if Hagens Berman loses each of its cases against specific universities, it can still

affect change in NCAA policies, according to Mark Phelps, sports law instructor at the Warsaw Sports Marketing Center at the University of Oregon.