Roethlisberger: Could Brain Injury Excuse his Actions?

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Posted on 29th April 2010 by gjohnson in Brain injury |Concussion |NFL and concussion |brain injury attorney

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A little over a month ago, I suggested that there could be a relationship between Ben Roethlisberger’s difficulties with the NFL (and the law) and brain injuries he has suffered. See http://www.tbilaw.com/blog/2010/03/football-and-brain-damage-the-cautionary-tale-of-steelers-quarterback-roethlisberger.html

On Sunday that idea was picked up by the Pittsburgh Tribune Review in an article by Carl Prine at http://www.pittsburghlive.com/x/pittsburghtrib/sports/steelers/s_678091.html That article seem to drew significant media attention to the issue and it then went viral becoming the subject of tweets and other social gossip pages. The banter on these sites wasn’t sympathetic. See for example Deadspin.com which titled its blog “Today In Bullshit Excuses: Ben Roethlisberger’s Anti-Social Behavior Caused By Concussions” http://deadspin.com/5524606/today-in-bullshit-excuses-ben-roethlisbergers-anti+social-behavior-caused-by-concussions Some of the comments were even nastier.

When I first raised this issue a month ago, a member of my staff asked me quite sincerely whether brain injury would excuse Roethlisberger’s conduct. I told her “that’s complicated.” I asked her did she really want to hear it all. She did, but at the time I wasn’t entirely sure how to explain why it was that the criminal law sought to punish people who were largely unable to control their actions.

Reading yesterday’s bashing of Roethlisberger, I decided it was appropriate for me to give a little better answer to that question. I am not a criminal lawyer and do not believe I am competent to represent someone charged with a crime, largely because I have not kept current in the field. When I last studied criminal law, we still had a liberal United States Supreme Court. Despite that, I have been specifically concerned about this particular issue for a long time. The issue never gets far from my mind because there is always someone from the brain injury community who needs help because someone they love or care about has been charged with a crime, for essentially behaviors that occur because of brain damage. Recognizing brain injury behaviors for me is as easy as reading English. The problem is that the law is written in a different language, primarily to ensure that “bad” people are punished and that society is protected from further “bad” acts.

The law has long recognized that someone who was truly “insane” couldn’t be criminally punished, but kept society safe by locking up in a psychiatric institution anyone judged insane. But society has been very slow to excuse conduct from individuals who aren’t so disturbed that we can protect society by forcefully institutionalizing them. Adding to the complexity of this issue is that the nuances of abnormal neurobehavior is so much more complex and subtle than pure psychiatric illness, that it just does not lend itself to the black and white thinking that the issue of whether Jeffrey Dahmer, or some other mass murderer was “insane.”

The law of “not guilty by reason of insanity” has really only two main elements:

1) Is the defendant sufficiently aware that he can understand the charges against him, and thus able to participate in his defense; and

2) Did the defendant understand that he was committing a crime. Jeffrey Dahmer was found guilty because he was aware in an eerie, calculating, computer like way.

What always troubled me about the Dahmer verdict is awareness of what he was doing did not mean that he truly understood it was wrong or that he could have controlled the urges to do it. His guiltless knowledge of what he had done is a true manifestation of insanity, regardless of the label psychiatrists or the criminal law puts on it. His guilty verdict worked for society. We were safe from further acts and he ultimately got punished for his crimes by the inmate population who ensured that he would kill no more. For more on the Dahmer case, read about the case on TruTV here: http://www.trutv.com/library/crime/serial_killers/notorious/dahmer/19.html

Ultimately, whether a person is excused of a criminal act under the insanity defense will rest upon whether the person had the requisite state of mind to commit such act, what the law calls “criminal intent.” In our next blog we will discuss in depth some of round peg into square hole problems of using an insanity defense for someone with a brain injury. But fundamentally, brain injured people are not insane. Insanity is a form of mental illness; brain injury is caused by organic changes to the way the mind functions. Psychiatrists are the arbiters of insanity, yet the specialty knows less about brain injury than the readers of this blog.

One could argue that this is a new problem, because people who used to die from brain injury are now being saved. While this problem has been around as long as there have been clubs, modern medical science is saving more severely injured people. (See for example our blogs on the Nightmare of War Time Brain Injury at http://www.tbilaw.com/blog/2008/06 read bottom up) Regardless, the law must now change to address this issue:

Does a just society punish a sane person for actions either they could not control or did not understand were wrong?

Our next blog will reference an excellent source I found in my research, an online article published by Inés Monguió, Ph.D. a neuropsychologist from California. That article can be found at http://www.uninet.edu/union99/congress/confs/hi/03Monguio.html I believe it should be required reading for any criminal lawyer and any lawyer representing someone with a brain injury in a personal injury case. It raises the issues in the right way, gives concrete guidance as to what the law is and challenges the advocate to do the right thing to protect both the client and society. This article’s treatment of frontal lobe deficits – that make it so difficult to know right from wrong or control actions – is one of the best treatments I have ever read on the subject. I will end today’s blog with a quote from the abstract to that article:

In most modern societies there are laws and guidelines that recognize mental conditions that reduce criminal responsibility. A century ago the limited knowledge in mental illness led to few mental conditions meriting forensic recognition, mainly florid psychosis or advanced dementia; both conditions easily recognized by lay people as affecting the social functioning of the defendant. Nowadays society in general is ready to accept that when certain areas of the brain are damaged certain functions are affected (left temporal area and language; right parietal lobe and spatial disorientation; traumatic brain injury and deficits in memory.) In spite of the recognition that in all its complexity the brain rules automatic and voluntary behaviors, it seems difficult to take the step to connect the clinical knowledge and its forensic application.

In part perhaps it is due to the loved tradition of “free will,” without which the foundations of social responsibly and even morality would tremble. Nevertheless, the more the neurosciences move forward, the less clear that the dichotomy becomes between voluntary and involuntary behavior. In this presentation brain syndromes will be presented and their possible effect on criminal behavior. Various cases will be presented of defendants evaluated by the author that presented with neuropsychological deficits congruent with organic diagnoses. Explicit connections between the neuropsychological deficits and the criminal behaviors, as well as with the pertinent forensic issues in various countries will be explored.

Injured Running Backs Are Damaged Goods To NFL

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Posted on 19th April 2010 by gjohnson in Uncategorized

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National Football League scouts are concerned about the injuries, including concussions, that prospective running backs have received, according to the Milwaukee Journal Sentinel. http://www.jsonline.com/sports/packers/91289844.html

 Writer Bob McGinn – perhaps tongue in cheek, perhaps not – writes, “Across draft boards across the National Football League, the big ‘X’ used to denote injury risk is so widespread that decisions on running backs probably will be made more by the medical staff than the football people.”

 As he puts it, running backs enter the NFL as “damaged goods.”

 McGinn then had football experts, scouts, rank their picks for NFL running backs.

 The top pick, C.J. Spiller, missed one game in four years but “played through turf toe” in 2009, McGinn wrote.

 Jahvid Best was out eight games, and ended the season with concussions he sustained in back-to-back games.

 Toby Gerhart had a torn knee ligament, and also sat out a game due to a concussion.

 Dexter McCluster was out six games with a concussion in 2006.

 It’s a grim picture, as McGinn writes

Super Bowl Coverage And the Concussion Issue

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Posted on 8th February 2010 by gjohnson in Uncategorized

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Better late than never. The NFL seems to have finally figured out that its sport’s future depends on protecting its most important asset, the players. It may be a little naive, but from this perspective, it seems that NFL Commissioner Roger Goodell really gets it. Concussions involve brain injury. Brain injured players aren’t very good players and have lots of problems after they retire.

With the Super Bowl just hours away from starting, Goodell told “Face the Nation” Sunday that the league was still studying ways to make the game safer and cut down head injuries in particular.

Goodell said that the so-called “three point stance,” where players square off with one hand on the ground, could eventually be barred, according to a New York Times story on his interview with Bob Schieffer. The article was headlined “Commissioner Stresses New Culture of Safety.” http://www.nytimes.com/2010/02/08/sports/football/08nfl.html?ref=sports

On the “Face the Nation,” Goodell said that for years “the culture” at the NFL was that concussions weren’t serious injuries.

“I think we have changed that culture and made sure that people understand they are serious and they can have serious consequences if they’re not treated seriously,” he told Schieffer.

On Super Bowl Sunday both The Philadelphia Inquirer and The Washington Post weighed in on the concussion issue.

In an editorial, http://www.philly.com/inquirer/currents/83742022.html
The Inquirer cited a Time magazine issue with a cover story on “the most dangerous game,” pro-football, which The Inquirer said “has crippled retirees mentally and physically.”

Young players sustain 140,000 concussions a year, and half of them return to the field so soon they may suffer permanent braind damage, The Inquirer warns.

And Washington Post columnist Leonard Shapiro complained that the Super Bowl pregame show and telecast made no mention of the concussion issue. http://www.washingtonpost.com/wp-dyn/content/article/2010/02/07/AR2010020703736.html

It is an interesting question, whether football is really the most dangerous sport. Boxing will always be on the top of my list even though it involves far fewer participants. The goal of boxing is to cause a brain injury to one’s opponent. Much of the impetus behind the growing movement to forbid return to play on the day of a concussion comes out of concern for the “second impact syndrome.” In second impact syndrome, the brain’s ability to regulate cranial blood pressure is impaired by the first concussion. When a second concussion occurs there can be a resulting catastrophic increase in intracranial pressure, ICP. It was such injury that caused Zachery Lystedt’s brain injury. Well how does one reconcile no return to play rules, when the injured person continues to box?

Evolution in the Understanding of Concussion – Length of Amnesia Correlates to Severity of Brain Damage

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Posted on 19th January 2010 by gjohnson in Uncategorized

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Continuing on with the discussion of my Concussion Clinic videos, today’s topic is The Length of Amnesia is the Best Predictor of Severity of Injury. Today’s video is here:http://www.youtube.com/profile?user=braininjuryattorney#p/u/8/WB9ErwpKnXk

Brain injury is one of those things that everyone feels the need to classify, typically into categories of mild, moderate and severe. A severe brain injury is one that involves extended coma. I don’t have any trouble with that definition for severe brain injury.

The controversy in classifying brain injuries revolves primarily around whether there was a brain injury at all and where the break point is between mild and moderate brain injury. The problem with all classification battles in the mild to moderate category is too much is based upon the identification of symptoms in the first hour, where it is not how symptomatic a person is at two hours, but how long the symptoms last that is significant. This is especially true with the most predictive symptom, amnesia.

With respect to severe brain injury, the Glasgow Coma Scale is a reasonably accurate indicator of severity. It also has the benefit of nearly universal adoption, making outcome studies based upon it reliable because of the large number of patients studied. But when the brain injury is below the severity level that loss of consciousness or a change in mental state is witnessed by a medical professional, the GCS has little validity. Most concussed individuals will get the highest score of 15, regardless of how significant the concussion is and how symptomatic they are at the time given the score. The GCS score at the mild end is only a test for confusion, not amnesia. To get a “perfect” GCS score, a patient needs only have his eyes open, be able to carry on a conversation demonstrating orientation (he knows who he is and where he is) and that he can follow simple commands. Compare that to how oriented a quarterback must be to continue to play in the game.

In contrast, basing outcome on the length of amnesia not only correlates well with the GCS score in the severely brain injured population, it is sensitive enough to provide meaningful diagnostic guidance in the less severely injured. According to Lezak, Neuropsychological Assessment, citing Bigler 1990, the length of amnesia predicts as follows:

  • Less that five minutes, very mild.
  • 5 minutes to 60 minutes, mild.
  • 1 to 24 hours, moderate.
  • 1- 7 days, severe.
  • 1-4 weeks, very severe.
  • More than 4 weeks, extremely severe.
With

But the key to applying this score is first understanding what amnesia is and then assuring that the diagnostician, asks and records the right questions. Amnesia is not like the Hollywood head injury myth, where the main character does not remember who he is until he magically flashes on something, or gets that second blow to the head. According to Lezak as amnesia “does not end when the patient begins to register experience again, but only when registrations is continuous.” Lezak, 4th Edition, page 160.

The problem is that distinguishing between some imprinting of memory and “continuous” imprinting of memory does not lend itself to established tests which primarily focus on confusion. One standardized test for amnesia, the GOAT, (“Galveston Orientation and Amnesia Test”) has only one good question out of 10. The best question on the GOAT is “can you describe in detail the first event you remember after the accident.” But because this is the “subjective” question, it is the one researchers pay the least attention to. But even this best question, doesn’t account for the fact that amnesia may begin after the period for which this question is being asked. It is not what the person remembers about the first 10 minutes post-accident, it is what they continuously remember the next hours and days that is significant.

Evolution in the Understanding of Concussion – Non-Athletes are At Much Higher Risk of Disability

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Posted on 13th January 2010 by gjohnson in Uncategorized

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Continuing on with the discussion of my Concussion Clinic videos, today’s topic is Non-Athletes are at Far Greater Risk of Disability. Today’s video is here: http://www.youtube.com/profile?user=braininjuryattorney#p/u/5/Z3QvSHrWykI

Sport is an ideal laboratory to study concussion. First, almost all sport concussions get witnessed and in today’s world, most get videotaped. Second, a very significant percentage of them happen on university campuses where scientists and medical researchers are looking around for things to study. Three, they are predictable, happen in a confined space and to a subset of people who we can control. The predictability and control means we can actually study and test their cognitive abilities before they have the concussion. And then because we know they will have repeated concussions, we can study that as well.

The problem with sports as the laboratory is that we are studying those people who tell us the least about what might happen to average people who suffer accidental concussions. In the sport laboratory we are studying those people who are most likely to get better, to have an “apparent full recovery”. Thus, the sport and concussion literature has done an excellent job of dealing with the primary issue which they care about, determining when it is safe to expose our football players to another concussion. But the truly important issue, of what disability is likely to come from a concussion and how can we best diagnose and treat that disability, the sport laboratory tells us very little.

In fact, the dark side of neuropsychology is trying to use sports concussion research as evidence that concussion does not cause permanent damage. Anyone who has worked with Post Concussion Syndrome survivors knows that concussion or mild traumatic brain injury, can disable. The young male athlete’s apparent full recovery does not tell us very much about how someone older, someone not in extraordinary shape, someone who was not expecting to get hit, will recover.

Here is the reality of the real world of concussions: If you are significant at 24 hours, and you are female and you are over 40, you need to go see the doctor every couple of days until you get better. You need to see a doctor who is going to test your memory. You need a doctor who is not just to test your memory for things you know about your life, but what you have been doing in the 24 hours before that examination. And you need a doctor who is not going to just ask you those questions, but also ask the people you live with.

Obviously, disability happens to those who are not 40, not female, but the more vulnerable your brain is because of age, because of prior concussions, because of emotional challengers you have had in your life, the more likely you will have a bad result. If you are at risk for a bad result, you must be followed and diagnosed in that first week. If you don’t get that type of evaluation we will have no way of predicting whether this concussion will give you a few bad days, a few bad weeks or keep you disabled the rest of your life.

Evolution in the Understanding of Concussion: Sport Concussion’s Get Witnessed and Documented

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Posted on 7th January 2010 by gjohnson in Uncategorized

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Continuing with this blog’s treatment of the “The Evolution of Our Understanding of Concussion, otherwise Called Mild Traumatic Brain Injury,” today I focus on the huge diagnostic disadvantage real world concussions have in the diagnostic process. While the sport concussion guidelines are a tremendous step forward, the single biggest problem in applying them to accidental concussion is accidental concussions are rarely witnessed by trained observers. Never is there a video tape of the forces that caused the concussion. Click here for Part IV of my Concussion Clinic Videos.

Certainly accidents have witnesses and often witnesses that are communicating with the concussed person within the first couple of minutes after the wreck or fall. But even 30 seconds after the incident may be too late.

Compare the situation where someone is in a car wreck to a boxing ring. If a fighter is knocked down by a blow to the head, the boxer presumptively has had a concussion. Yet in the vast majority of the cases, that boxer has returned to his feet within 10 seconds. If the fight isn’t stopped at that point, it means that the boxer has regained sufficient function to engage in his highly dangerous and demanding profession in less than 30 seconds. That model shows us that the window for observing the acute concussion evidence may be as short as 10 seconds.

If the same concussion occurred in an NFL or college football game, we would have a video tape of that concussion. While there isn’t a 10 second knockout rule in football, if a player is still down for 20 seconds, play has to be stopped. The concussion then gets analyzed from several different camera angles and archived for prosperity.

In a car wreck, unless there is a passenger in the car, no one is closely observing the injured person within that 30 second time frame. Certainly witnesses will congregate quickly, but not quickly enough. Almost never will there be someone trained in concussion diagnosis at the scene during the time window that the acute evidence is the clearest. If the concussion occurs in a fall, most times there are no witnesses.

Thus, the diagnosis of an accidental concussion requires either the reliance on a history from the injured person, who is likely to be unreliable historian of the event, or must be reconstructed. The only reliable measure to determine whether there was the concussion is to determine the existence and extent of post traumatic amnesia.