Law Professor Co-Authors Piece that Seems to Support NFL

A paper written by David Orentlicher, a professor at the Robert H. McKinney School of Law at Indiana University, and William S. David, of the Harvard Medical School at Harvard University, seems to lend support to the NFL’s argument that it acted as quickly as one might expect in responding to the concussion crisis.

The abstract of the paper (Concussion and Football: Failures to Respond by the NFL and the Medical Profession) notes that the NFL “has come under sharp criticism for its approach to the problem of concussion.

“In reviewing the response of NFL to concussion, one can easily think that the league was too slow to worry about the medical consequences of head trauma. Despite concerns being raised for many years about the risk to player health, it took until December 2009 for the NFL to advise its teams that players should not return to play or practice on the same day that they suffer a concussion.

“But the NFL was not alone in viewing concussion as a relatively mild problem. Physicians also did not worry very much about the medical consequences of concussions. For decades, neurologic experts disagreed as to whether concussions could cause permanent injury, with many attributing patient symptoms to psychological issues or to the incentives created by compensation programs for people with disabling conditions.

“While the NFL may have responded slowly to problems from concussion, the extent to which its response was unreasonable is unclear. If many medical experts did not worry about concussions, it is difficult to fault the NFL for not worrying either. Still, one can question the NFL’s failure to adopt concussion guidelines in the late 1990’s when they were being issued by medical experts.”

Paul Anderson, the founder of the blog NFL Concussion Litigation and editor of Concussion Litigation Reporter, offered the following thoughts on the abstract:

“The abstract provides an objective snap shot of an issue that will be at the heart of the plaintiffs’ case: was the science sufficiently advanced such that the NFL had a duty to act (i.e. warn the players and make appropriate rule changes)?

“It also foreshadows one of the most epic battles that may take place in this litigation: The battle of the experts. “

(Editor’s Note: Look for in-depth analysis of the paper in the next issue of Concussion Litigation Reporter)

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