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My review of the movie ‘Concussion’

December 28, 2015 by Steven M. Gursten

A message about the attempts to silence and mislead awareness of traumatic brain injury (TBI)

Will Smith, Concussion

I’m an attorney, not a movie critic.

But I’m also the chair-elect of the American Association for Justice Traumatic Brain Injury Litigation Group next year, and I’ve been litigating brain injury cases, mostly from motor vehicle collisions, for 20 years.  I speak often on the subject of brain injury, and I’ve worked hard to spread awareness about this terrible, and terribly misunderstood, condition.

“Concussion,” the new Will Smith movie about Dr. Bennet Omalu, is an important movie. It spreads awareness. It also exposes many of the dangerous myths and misconceptions about traumatic brain injury (TBI). And this is where the main drama of the movie lies.

I’m acutely aware of the subject of misleading people about the dangers of brain injury by underestimating its seriousness. It’s something I see being perpetuated by insurance companies and defense lawyers every day. I see it in the so-called experts, the IMEs (“independent” medical examiners) and DMEs (defense medical examiners) they hire to deny the existence of brain injury.

These attempts to mislead people then cause additional harm to thousands of accident victims who are denied fair compensation and needed medical care as a result, whether these efforts are being made by the NFL, or by the perverse financial incentives of the insurance industry and defense lawyers to hire the most extreme medical experts they can find, as a way to mitigate what they will have to pay in litigation. In many cases, if these so-called “independent” medical examiners are believed, it can result in people being completely turned away from courthouses.

In the movie, the efforts to silence and mislead are made by the National Football League. The movie shows how Dr. Bennet Omalu discovered Chronic Traumatic Encephalopathy (CTE), and Dr. Omalu’s pursuit of the truth after his discovery.

This is what resonates most powerfully for me. Just as I deal with cynical insurance company adjusters and skilled defense lawyers who dispute brain injury because it’s in their financial interest to do so, the movie “Concussion” shows Dr. Omalu’s conflict with the NFL in accepting this information, something the NFL still disputes.

This movie also opens the door to an even more important conversation: The link between trauma and brain injury. In a world where many people sitting on juries still believe you have to suffer a significant loss of consciousness or be put in a coma, and have positive MRI and CT scans of the brain to have a head injury (all proven myths that defense lawyers still argue every single day), the movie is a primer for the general public to the very real medical issues and challenges generated by trauma, whether that trauma be from football or from car accidents.

Or, as in the case of Dr. Albert King of Wayne State University in Detroit, being hired by defense lawyers to use his “football research” to opine why people injured in a car accident or truck accident could not sustain traumatic brain injury.

In Dr. King’s case, he testified – under oath – that because professional football players were not suffering TBI, that people with far less freakish size and strength could not suffer TBI as well. We now know, thanks to Dr. Omalu’s research on CTE, about the accuracy of the so-called “normal” football players. The case went to trial, and is a public record in the United States District Court. I’ve included my cross-examination of Dr. Albert King here, and you can read it and determine for yourself the accuracy of his sworn testimony under oath.

Efforts to mislead the public about the existence of brain injury

In the deposition I took of Dr. King, his opinions are also based entirely upon speculation about potential injury to an “average population, using 53 NFL football players (p. 60). He ignores all the accepted indicators that can increase the vulnerability or injury severity of someone who can be injured in a rear-end crash. Dr. King ignores my client’s gender, height, weight, age, whether she had pre-existing arthritis or osteoporosis, her head position in the vehicle, any prior injuries that would make her more susceptible to further injury, and other important details (pp. 56-59). Dr. King admits my client is not a football player, nor does she have the same average height, weight, gender or age of a football player in the NFL (p. 61). He admits that football players have “freakish” size, speed and strength relative to the average population, whereas my client is “probably” average (p. 61). He intended to testify that she could not have suffered any brain injury at all as a result of a truck rear-ending her vehicle based upon the use of un-replicated, untested, game films of NFL football players. These NFL football players were not involved in automobile accidents. They were not crash tested and were not put in similar target vehicles and struck by similar sized trucks like the one that struck my client (p. 62).

And as the movie “Concussion” shows, we now know a bit more about what the long-term health and the brains of those football players might look like today, thanks to the efforts of Dr. Omalu.

Most disturbing of all are the proposed final conclusions of Dr. King. Dr. King would propose to a Detroit jury that my client not only should have never been injured, but if she was, that she’d have recovered by now from her traumatic brain injury. This is despite the fact that Dr. King has never seen, treated nor examined Joy Lloyd. He is not a medical doctor. He is not a trauma epidemiologist. He had no medical records from any of her 14 treating medical doctors other than select records from only the first month following the rear-end crash that were provided to him by the defense lawyer for the trucking company in my case. Some of these opinions he proposed to testify to a jury about based upon what he was “told” by a psychologist after a seminar he attended (p. 83-90).

I used the example of Dr. King here because he also attempted to use football players.

Or mis-use them.

But this example of Dr. King is something I see constantly as an attorney.

How many seriously injured auto accident victims are turned away, or receive far less compensation than they should, because of examples like this? Clearly, it seems to me that defense lawyers and insurance companies have a perverse financial interest to find the most extreme defense doctors they can, because it forces attorneys like me to advise their clients that if a jury believes this (even if it is something my clients swear they never said!) that they can get nothing or far less than they deserve. How many seriously injured people are forced to end up settling a case for far less than what it should, because of examples like these?

The sad truth is it happens every day.

There are far less Bennett Omalu’s in the world than we need. In real-life, the efforts to silence these people, or coerce them into submission, are often too powerful. Dr. Omalu’s battle to uncover the truth despite these efforts to silence him are what makes the movie “Concussion” a must see for all of us.

Dr. King aside, the theme of highly paid experts who are financially rewarded for making extreme opinions that can damage others is one that must be investigated more closely. The NFL has hired doctors to contest this as part of the concussion litigation, and I see nearly every week so-called “independent” medical doctors who cause incredible harm to people.

I’ve thought often about Dr. King since I last cross-examined him. Even though in that case, a Detroit jury soundly rejected his testimony and awarded my client $2.5 million. Oh, how I’d love to take another crack at him as Dr. Omalu’s research on CTE, combined with the deaths and suicides of so many former football players, wrestlers, and hockey players, has raised the awareness of the general public and media about the dangers of trauma and brain injury.

I hope this movie becomes a part of a larger national conversation. I already see it in the consent forms that my children must fill out before playing sports, and in the discharge instructions that many hospital emergency rooms now include about the dangers of concussion and brain injury. These are all positive developments, and ones that hopefully will make a generation of athletes better protected and a generation of automobile accident victims more fairly treated and compensated by insurance companies.

Brain injury has life-long and life-altering consequences. According to the Centers for Disease Control (CDC), each year there are over 200,000 visits to emergency departments by children under the age of 19 suffering concussion-related problems from organized sports. Omitted from these statistics are visits to urgent care facilities, physicians’ offices, and cases where concussion or brain injury is simply missed or where it is not the principal diagnosis. The CDC estimates that a more accurate number is between 1.6 million to 3.8 million sports-related concussions documented each year.

And of course this doesn’t just impact sports-related concussions or brain injuries. This impacts all people who suffer an injury to the brain from trauma. Recently, the Department of Defense issued an important statement about the links between TBI and Parkinson’s Disease, dementia, depression, seizures and certain diseases of the pituitary and hypothalamus. Here’s link to the original release and a blog post I wrote on the topic.

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