Football and Head Injuries: Legal Analysis of the NFL Concussion Protocol (Part II):

0:00:08 - Shane Smith

The NFL Concussion Protocol. Last episode we talked about what they do on the sideline survey. This episode we're going to dig into how they get to come back. I'm Shane from Mind Matters: Navigating Head Injuries and Concussions. I'm here today with Thomas, one of the attorneys at the Concussion and Brain Injury Group here at Shane Smith Law. This is the Mind Matters Protocol. This is part two of our NFL Concussion Protocol series where we talk about once the player has been diagnosed with a concussion, taken off the field, taken in the locker room, basically sent back to the hospital for treatment how they get back to playing, which is what everybody cares about the most. Thomas, so let's briefly, briefly, sideline survey what gets covered in that.

0:00:48 - Thomas Ozbolt

Got the Maddox Questions, quick questions to see if the players are oriented to where they are, who they're playing, what the score is, and neurological exam for the sideline survey. All of this inside the blue tent.

0:01:12 - Thomas Ozbolt

0:01:35 - Shane Smith

Alright. And that can be a thumbs up or thumbs down. If it's thumbs up, I could get back out to the field to play this game. They say, all right, you're good. Thumbs down, I'm out and on my way to the hospital, I assume.

0:01:45 - Thomas Ozbolt

Right, yeah, you're out of the game and then you're placed into- tt's all called, when you see it on TV, they call everything the concussion protocol. But the NFL has a more formal name for the process where you get back onto the field and that's hey, you've been yanked from the game, have signs and symptoms of a concussion, and to get back on the field, you have the return to participation protocol. So you don't go back into the game until you've walked through this protocol. All right, what does that look like? What's step one? All right, yeah, let's use Josh Allen, Buffalo Bills quarterback, as an example for this to start off with. The may or may not be eliminated by the time this podcast airs, but he's a useful case study. And so anybody who knows Josh Allen, let's assume he's scrambling, you know, big boy, 240 pounds, breaks the pocket, barrels ahead for at first down and does the wise thing for once in his career, decides to slide. Not a fake slide like he tried to pull against the Steelers in the wild card round, but a real legit slide.

0:02:45 - Shane Smith

Clearly, Thomas, you didn't watch that game or have any feelings about it. None at all. So all right, he gets hit. Bam. Sideline survey. Thumbs down. Go back to locker room, thumbs down. Nope, you're out of the game. How's he return? How does he get?

0:03:01 - Thomas Ozbolt Yeah, so, assuming they make it onto the next round, they pull off a miraculous win with the backup quarterback and get to the Super Bowl. He's been diagnosed with concussion. How does he get back on the field? There's a five step process where he has to be clear to fully practice or play after concussion diagnosis. This process of return to participation protocol, it's a process the NFL has come up with and it's based on what they call. And that's their characterization. I don't want to defend the NFL on all of this. These are internationally accepted guidelines to ensure that each player receives consistent treatment.

0:03:39 - Shane Smith

And the players league also had some weigh in on when they were seting all this up right.

0:03:43 - Thomas Ozbolt

Yeah, they definitely got to have a voice in all of it through the collective bargaining agreement and have some input into it. Yeah, so they definitely had some say in this.

0:03:52 - Shane Smith

This makes me think about one of those things where, when I'm making rules, I'm like this is what we should all do for everybody. And then it happens to me. I'm like well, that's a stupid rule. I want to get back out there with that. I don't want to jump through all these hoops anymore, but now they're stuck with it for their own good, basically right? Basically, yeah.

0:04:07 - Thomas Ozbolt

So the first part of all this is phase one. All right, and this is symptom limited activity. So here in our example, you know Josh Allen, he'd be prescribed rest, limiting or if necessary avoiding activities. Then that's both physical or cognitive, which would increase or aggravate the symptoms.

0:04:25 - Shane Smith

All right, so I'm just resting and not doing anything that's going to make any of my symptoms worse.

0:04:29 - Thomas Ozbolt

Right, and this would just include activities of daily living and under athletic training staff supervision only, there would be or could be limited stretching, balanced training that can be introduced which would eventually progress to light aerobic exercise, and all of these only as, you know, Josh Allen would be able to tolerate them. And phase one if any additional medical issues popped up, the Bills' team doctor, Buffalo Bills team doctor, they should consider external consultation or additional diagnostics. So in phase one, if there's no increase in symptoms and, you know, Josh doesn't develop signs of concussion on the neurological exam, he could be cleared onto the next phase.

0:05:11 - Shane Smith

And how long, is there a certain timeline? Most of these phases have to take place or do take place, or is it just all up to the individual how quickly they heal?

0:05:19 - Thomas Ozbolt

Yeah, it's all up to the individual and how quickly they heal. And you know, a lot of times they're trying to see if someone can progress, you know, through the phases in the course of a week. You know that's kind of the goal. It's like, hey, I want to get you back on the field. They want to get back on the field, they want to play. So a lot of times you'll see, you know guys be able to clear the protocol in a week. Sometimes if it's a worse type of injury, you'll see, you know, a couple of weeks, you know, maybe even three or four weeks. Last year, Tua Tagovailoa, basically they pulled him out for the season or he pulled himself out for the season. They thought it just wasn't a good idea for him to be in there taking those types of hits.

0:05:53 - Shane Smith

He couldn't complete the return to game protocol, basically?

0:05:57 - Thomas Ozbolt

Right. It was, you know, it was pretty concerning. He had back to back concussions. I don't know that it was back to back weeks, but it was in pretty, pretty close frequency and time.

0:06:00 - Shane Smith

And as we've discussed in prior episodes, I mean, once you have one concussion, you have another one. It's that much worse. It's not like you're starting from ground zero, it's just the symptoms are going to be magnified more. 0:06:17 - Thomas Ozbolt Yeah, you can have a compounding effect and you know, like in the 90s, Steve Young, his career was largely cut short due to, you know, having a few too many concussions. I think he could have played a couple more years, but he got a few too many hard hits and decided it was best for him and his family if he walked away from the game.

0:06:34 - Shane Smith

All right, so round one is over. What's round two?

0:06:37 - Thomas Ozbolt

Phase two is aerobic exercise. So here, it's Josh Allen again, he would be getting graduated cardio exercise, cardiovascular exercise, and that would be under the direct oversight of the Bills' medical staff, and this might be something like a Peloton, exercise bike, treadmill. You would see him engaging in dynamic stretching and balance training and this would involve a gradual increase in the duration and intensity of all these activities, as long as there's no increase or aggravation of signs or symptoms by the player while he's performing the activity, and not only while he's performing, for a reasonable period afterward.

0:07:13 - Shane Smith

Okay, so if I go to run for 30 minutes or do the Peloton for 30 minutes, they're gonna watch, so legitimately, they're gonna watch me and make sure I don't relapse, basically.

0:07:24 - Thomas Ozbolt

Right, yeah, they're watching you for your own good in a way. It's like, hey, you know, he says he's good, but let's just keep an eye on him, see if he's squinting from light sensitivity. And then, you know, the checking back with you later on. You know you go home, you're eating some, you know you're having a protein shake and you're getting a splitting headache. That that would say, hey, maybe it's not time to continue progressing here.

0:07:45 - Shane Smith

And you hang out here at phase two, or you can go back to phase one, right? Yeah, because you can go up and down in the phases, right? If symptoms come up, they could pull you back and say you aren't ready to go to phase two.

0:07:55 - Thomas Ozbolt

I don't know if you go back to phase one. I don't think I've seen that. But I've definitely seen someone linger in a phase for a while. Or they say, hey, he's not ready to progress to the next phase, so he's going to stay here for a little while. I'll leave you there. I haven't seen him go up and down on it. It's not to say it can't happen, but I just I haven't-

0:08:09 - Shane Smith

Usually the advice is "We're just going to hold you here for a little while."

0:08:15 - Thomas Ozbolt Yeah, we'll keep you here. We'll stop these activities. We'll still let you attend, you know, regular team meetings engage in film study, but as long as there's not an increase or aggravation of signs or symptoms while they're engaged in cardiovascular activity, player's basically ready to move on to the next phase. What's phase three? Phase three is football specific exercise. And in this instance Josh would continue with supervised cardiovascular exercises that are increased, and they might mimic sport specific activities. And also, supervised strength training is introduced here. Josh Allen in this instance would also be allowed to practice with the rest of the Bills and sport specific exercise for 30 minutes or less, and that's with careful and ongoing monitoring.

0:09:00 - Shane Smith Okay, so I figure they're watching him like a hawk in that 30 minutes.

0:09:02 - Thomas Ozbolt

Yeah, and there's some discretion in between, in phase two and phase three for neurocognitive testing to be administered. You know this is where, you know, you're going back and you're testing to see if the players kind of return to baseline and seeing where they're at. And if the player hasn't returned to kind of baseline in this instance and this testing in phase two or three, you would repeat that test again in 48 hours. That's why you hear sometimes oh, he's still in phase two, he's still in phase three, is because they're testing to get the baseline but something's still off. There's still some sort of sign or symptom of neurocognitive ability that's just not back to where catching up baseline. But you could also look at it to, if they find that there's a non concussion related cause, yeah, that's determined to be the cause. That then that can, that can be considered and will move or let them keep progressing, because this is causing the issue. Right, yeah, maybe there's a headache or something for, for some other reason.

0:09:58 - Shane Smith

Or they're having balance issues, but they also have a twisted ankle. Right. Exactly. 0:10:02 - Thomas Ozbolt I think that's a perfect example. In these instances here, it's the Bills' team doctor who ultimately makes the decision on when the player gets to return to contact activities. Is it, what phases contact? In phase three, when there's a demonstrated ability for Josh Allen to do cardio and supervised strength training without an increase or aggravation of signs or symptoms, he can move on to the next phase. And what's phase four? Phase four is club-based non-contact training drills. So here Josh Allen after his concussion, he's going to continue cardiovascular, strength, balance training, team based sport specific exercise and participation in non contact football activities, which would include throwing, catching, running or other position specific activities.

0:10:49 - Shane Smith

So what's the difference in phase three and phase four? Is it supervised strength training and sport specific exercises? Is that right?

0:10:57 - Thomas Ozbolt

Yeah, sports specific exercises, but not necessarily training drills. Like so, one of the examples, you know, you could, you know maybe, having players running routes and you know Allen's throwing corner route to him or in cutting routes, different things like that, but not anything where he's gonna be, of course he's not gonna be tackling anyway, but there's no hitting. There's no players allowed to hit him. He's wearing the red jersey. There's no tackling, there's no running through tackling dummies like you see, hold the ball, run through with the tackling, dummy at the gauntlet or pushing a sled or anything like that. It's just kind of a slow and gradual increase in what you're able to do. So maybe a sport specific activity and doing some running or running with the ball, but then you're moving on. It's just a slow and gradual increase. Ramp up.

0:11:44 - Shane Smith

All right. So phase four is non-contact team drills and stuff right?

0:11:48 - Thomas Ozbolt

Yeah, non-contact football specific activities. And here to what they're looking at too is, you have to have all signs, symptoms and a neurological examination, including neurocognitive testing and balance testing. All these have to return to baseline status before you can return to full football activity and clearance. Is that phase five? That is phase five. There is one except- or just kind of an exception here to phase four, and these are ones that can happen on a case-by-case basis, because you have some players who have documented ADHD or learning disabilities and for something like that, if hey, you're showing you're not remembering much, you may not have remembered things much anyway, right?

0:12:28 - Shane Smith

So that's why that baseline is so critical and that's, I guess, why they lean on the team doctor. The team doctor should know these things.

0:12:36 - Thomas Ozbolt

Well, yeah, he should know his patients, he should know those who are under his care. So he's ultimately the one who can make that determination. With the neurocognitive testing and the balance testing of baseline, these have to be completed no later than the end of phase, phase four, with the results interpreted as back to baseline.

0:12:55 - Shane Smith

All right, so hit phase four. Everybody says I'm back to baseline. What's phase five? Yeah, that's full football activity or clearance. All right, so I'm good to go once I finish four. Phase five is basically I'm living life back to what I did before.

0:13:07 - Thomas Ozbolt

Yeah. There's kind of a final component to that, though, is you've been cleared to move on to phase five. You've established your ability to participate in non-contact football activity, which will include team meetings, conditioning at the cardio, non-contact practice. This is all without recurring signs and symptoms and your neurocognitive testing is back to normal. But here the club doctor would clear Josh Allen for full football activity involving contact and then he would be examined by the independent neurological consultant that's assigned to the Bills. So this is somebody who's kind of separate from the Bills organization, and in these instances, the team doctor, he has to give that INC, the independent neurological consultant, just give him a copy of all relevant reports and tests, which would include the sideline and booth reports, the booth athletic trainer spotter report, where they initially see it, team injury report. You know that's to give a daily update on what the injury is, and also be given access to video of the injury where that's applicable, where there's actual angle of it, and they also get the player's neurocognitive test results and interpretation. So if independent neurological consultant concurs with the Bills team doctor that the player's concussion has resolved, then in this instance Josh Allen could play in the Super Bowl.

0:14:27 - Shane Smith

Then he's cleared, phase five is over, and now it's back to normal.

0:14:31 - Thomas Ozbolt

Back to normal. And you know, hopefully this is just hypothetical example. Nobody gets hurt, and hopefully the Bills lose to the Chiefs.

0:14:39 - Shane Smith

So one question, that independent neurologist at the end we were talking about that's gonna give me the thumbs up or thumbs down and get out of phase five, is that likely to be the same independent neurologist we had at the game that said, hey, I think I see something here. It would seem to me they're probably different people because I might be in a away game, so that neurologist not gonna be the team neurologist, it's gonna be somebody else.

0:15:02 - Thomas Ozbolt

Yeah, it is a different one. It's actually you have the INC and an UNC. Oh really? In terms of acronyms, and I'm not quite sure the difference between them. The first one is the one that's in the booth, the unaffiliated neurological consultant, and then you have an independent neurological consultant who's assigned to, so it's gonna be a different person, and he would have access to the unaffiliated. I think the unaffiliated part goes in, hey, this is one unaffiliated neurological consultant for both teams who's watching the game. He's not affiliated with the Bills or the Chiefs, he's affiliated with that game. But then, when you bring it down more to a micro level, each team has their own independent neurological consultant who's tied to and assigned, so he's an independent, meaning he's not a team employee, but he's probably a neurologist who works with this team. Or with the NFL, or is a local affiliated with some hospital, guy who comes in on the weekends and has a, you know, other gig in addition to his hospital duties.

0:16:03 - Shane Smith

And I think it's great to know what's going on behind the scenes. I wonder when I see it, sometimes like hey, what is going on? So I'm glad we could dig into this. How effective do we think these protocols are in protecting players? Obviously they're all fairly new-ish, but how do we think they're doing so far?

0:16:18 - Thomas Ozbolt

Yeah, I think there's a significant step in the right direction. They're putting measures into place that are protecting player safety. Of course, as we discover and learn more about the brain like we're always talking about, there's learning more every day there's going to be room for improvement, different ways of testing these things, especially as we learn about concussions and their long-term effects and ways they might present themselves, or different diagnostics that may be available on the field.

0:16:42 - Shane Smith

I was going to say it makes me think of Star Trek when they run that thing over you and it tells you everything that's injured you know. I mean I can see that at some point, that'll be the tension right? Boom. But until then, in our work, hope to God, I can't imagine every team would have say an MRI or something you know, right on the side that sounds crazy. Yeah. From a legal perspective, how do these protocols impact like personal injury cases related to sports concussions?

0:17:05 - Thomas Ozbolt

Yeah, I think you can look at these protocols and see them as a standard of care in the sports context. So if the team or the league fails to follow these protocols, it could potentially lead to liability for injuries sustained by the player or long-term consequences, like we've seen in some of the lawsuits that have been brought against the NFL.

0:17:24 - Shane Smith

I have enjoyed us digging into part two of the NFL concussion protocol. I think the NFL is probably in the forefront of this area because of all the lawsuits that used to happen, but I think we'll see it something similar in other sports, I guess, especially other contact sports as it moves along, and maybe digging into those on some on some of our other episodes, or digging into the trickle-down effect of now that the NFL is doing this, how does it impact our college games and our high school games and other sports for football games I guess. If you've enjoyed this episode of Mind Matters, hit like and subscribe down below and hit the bell for notifications. Catch future episodes where we discuss concussions and everything related to TBIs and brain injuries and concussions, and everybody remember, if you're in pain, call Shane 980-999-9999. In pain. So I call Shane 980-999-9999. In pain. Call Shane.