Lawsuits over brain damage from concussions suffered during football have been a prominent story south of the border, particularly with the $765 million settlement the NFL recently agreed to with former players. However, there hasn't been much legal action over football-related brain injuries in Canada, and the NFL settlement seemed to make that even less likely. That may have changed, though, and oddly enough, it may be a CIS case that sparks the change rather than a CFL one. Tuesday saw the news that former Bishop's University defensive end Kevin Kwasny, who suffered permanent brain damage following a hit taken in a 2011 game and now requires round-the-clock care, is suing the school for $7.5 million. While Kwasny's case (filed in Manitoba, where he lives) won't necessarily set a complete precedent thanks to the particular circumstances involved, it may well spark a flood of similar suits, and it should be watched closely by everyone involved in Canadian football at any level. From the CBC:
Kevin Kwasny has filed a $7.5 million lawsuit against Bishop’s University, alleging he was forced to play despite having symptoms of a concussion during a 2011 game.
Kwasny, who was 21 at the time, was playing a game for the Gaiters when he began vomiting and went unconscious in September 2011. At half-time he was rushed to hospital in critical condition, where he had emergency surgery to relieve bleeding on his brain.
He was put in a medically-induced coma.
Court documents say Kwasny took a blow to his head during the game, and he immediately told multiple members of the coaching staff about his injury.
The documents allege Kwasny was ordered to play, despite having symptoms of a concussion.
Shortly after returning to the field, he was hit again and suffered a major brain bleed, leaving him unconscious.
Kwasny now has permanent brain damage and physical injuries. The documents say Kwasny will never be able to work again.
Here's what Kwasny's father Greg told Steve Lambert of The Canadian Press about the lawsuit and how severe his son's injuries remain today:
"He complained about his head being sore and that he got hit very hard ... and they just told him to get back in there a couple of plays later and keep on going," Kwasny's father, Greg, said Tuesday. ...
Two years later, he is still undergoing therapy. He lives in a rehabilitation centre in Selkirk, north of his family's home in Winnipeg, and is working to regain his mobility and strength.
"He lost his whole right side, as if someone drew a line down him," his father said. "He's got some of it back — his fingers and his arms moving — and his leg is a little bit moving but not fully." ...
Kwasny's lawsuit alleges he sustained a hit to the head during the first half of the game, left the field and told his coaches he was dizzy, had blurred vision and felt like he had had "his bell rung." Shortly afterward, the lawsuit claims, he was told to get back on the field and was hit again.
Coaches and trainers "failed to assess Kevin's symptoms for signs and/or symptoms of a concussion or head injury as required or at all," the statement of claim alleges.
By halftime, Kwasny had deteriorated and was brought to hospital in critical condition.
UPDATE: Bishop's responded with a release Tuesday night. Here it is:
Bishop’s University has become aware through the media that Kevin Kwasny, a former student-athlete who sustained an injury during a football game in September 2011, has filed a statement of claim against the University. Bishop’s has not yet received a copy of the statement of claim and as such cannot comment on the specifics. The entire University community continues to have empathy and compassion for Kevin and his family. Bishop’s has thoroughly reviewed the events of the day and the processes that were followed. From the moment the sports medicine team and coaching staff became aware of a potential injury they took all necessary precautions to ensure Kevin received immediate medical care. -- Jackie Bailey, PhD, Dean of Student Affairs
The allegations in Kwasny's suit haven't been proven in court, but they're certainly concerning. The scientific research on concussions suggests that second-impact syndrome (in other words, suffering another concussion while still recovering from one, which can cause second-impact syndrome regardless of how severe the first concussion is) can cause everything from permanent brain damage to death, and that's been why developing standardized return-to-play protocols is so important. It's also why it's so notable when teams at any level let players return soon after a potential concussion. Yes, the Drew Tate, Kevin Glenn and Buck Pierce cases (the first two saw Tate continue play with a suspected concussion and Glenn start a game despite a "headache", although neither was ever diagnosed with a concussion, while the latter saw Pierce return to a game after taking a hit to the head and only leaving later once he started to have concussion symptoms; authorities like Dr. Robert Cantu have said concussion symptoms can arise in a delayed manner) didn't lead to critical injuries, but they could have.
Regardless of how much responsibility Bishop's bears for Kwasny's injuries (which will likely be worked out in court, or in a settlement), his case certainly shows the potential impact of concussions, and in particular, what can happen if a player suffers multiple concussions in a short span. It also illustrates how crucial it is for teams to ensure that no player who even has a potential concussion should get anywhere near the field. Unfortunately, though, that goes against the play-through-pain mentality of football, and many players aren't even willing to tell coaches they're experiencing concussion-like symptoms for fear they'll be pulled. Only 67 per cent of CIS players in a University of Alberta study this summer even thought it was necessary to seek medical tests after a concussion. While the national collaboration between the CFL, CIS and other groups in 2011 to standardize concussion information and return-to-play protocols was promising, there's clearly still a lot more that needs to be done on the education front for players and coaches at all levels.
It will be particularly interesting to watch and see if Kwasny's lawsuit leads to others north of the border from either CIS or CFL players. Obviously, his circumstances are rather unique: while countless former players have wound up with serious long-term health issues from concussions, those issues have rarely been as severe as what happened to Kwasny, and they've often arisen years after players retired, making it harder to directly link them to football. (That was a key factor in why the former NFL players settled with the league.) However, while Kwasny's case may be quite different than many others, the mere filing of his lawsuit may get other former Canadian players thinking about taking legal action over concussion-related health problems, and a verdict in his favour or a substantial settlement may boost that momentum further. Everyone in Canadian football should be watching this one closely, both to see if it will trigger other lawsuits based on what's happened in the past and to see if lessons can be learned from this that will lessen the chances of a similar situation happening down the road.