Miami, FL

Is a Tua Tagovailoa Medical Malpractice Suit Inevitable?

Aron Solomon

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Tua Tagovailoa, Miami DolphinsPhoto bycredit: Wikimedia commons

As we saw on Monday night, part of playing a gladiator sport is putting one’s life at risk. Buffalo Bills safety Damar Hamlin was involved in what looked to be a routine football play - until his heart stopped. His heartbeat was restored by paramedics on the field, and as of Tuesday morning, he is in critical condition at a Cincinnati university hospital.

This type of catastrophic injury is, mercifully, rare in the National Football League. But what has become all too common are concussions. Before last weekend’s games, 135 players sustained concussions this season.

In a game two weeks ago against the surging Green Bay Packers, the Miami Dolphins quarterback, Tua Tagovailoa, hit the ground hard as he was being tackled. The momentum of the hit caused Tua’s head to bounce violently off the ground, resulting in Tua’s third concussion of the season. While it was later determined that the league’s concussion protocol was not violated, as symptoms of a concussion were neither exhibited nor reported until the following day, Tua is once again in the NFL’s concussion protocol.

If this seems like it has been a brutal year for NFL injuries, it has. A record 64 starting quarterbacks have played this NFL season. Those who closely follow the National Football League will remember that back in September, Tua Tagovailoa was hospitalized after sustaining repeat concussions. Having sustained two brain injuries in one week caused many people, me included, on ESPN radio, to call for an end to Tua’s season, even though the Miami Dolphins denied that the second of his injuries was a concussion (the game tape showed that it clearly was). Even another team’s highly-regarded head coach expressed serious concern for Tua’s health and future after his second concussion.

The NFL knows that repetitive head injuries are a definitive cause of CTE; the basics are worth reviewing:

Concussions are traumatic brain injuries resulting from a sudden, violent blow to the head that causes the brain to move back and forth. This can result in the damage of brain tissue, which can affect cognitive functioning, emotional responses, and behavior.

Cognitive symptoms include problems with attention, processing speed, and executive function - as we saw when Tua tried to run back to the huddle after his concussion against the Bills. Emotional symptoms include depression and anxiety. Behavioral symptoms include irritability, aggression, and antisocial behavior.

CTE is a neurodegenerative disease caused by repetitive brain trauma such as concussions or subconcussive injuries (minor head injuries that don't result in loss of consciousness). It is associated with memory loss, confusion, and impaired judgment. As we are all aware, the list of players who had CTE confirmed upon death continues to grow.

Tua should not have played after his second concussion of the season. Now, with the Dolphins in a fierce race for a playoff spot, that the team is even considering allowing Tua to play at all the rest of this season should lead us to examine medical malpractice questions.

A critically important question this week is who is legally liable for the injuries (present and future) of Tua Tagovailoa. Some observers have argued that Tua has fully assumed the risk of playing. He has chosen to play while recovering from concussions, so the legal burden is on him.

This is a weak argument, as an NFL player who has sustained a concussion is not well-positioned to make these kinds of decisions about their own health. It just doesn’t make practical sense for a player with even one concussion in a season to be able to make an informed choice about when they should play again.

Someone needs to look out for the player, yet it seems no one is. There is a solid argument to be made that the team and the NFL are jointly responsible for protecting the health of players who go into the concussion protocol. That should be the entire point of having a league policy on concussions.

But with all and all of these policies, there is the spirit and letter of the rules. Even if Tua passed the tests required to exit the concussion protocol, having sustained multiple concussions in one season (arguably even multiple concussions even in a career) the team and the league should have stepped in and prevented Tua from playing.

But that hasn’t happened here. Instead, the Miami Dolphins and the National Football League are considering whether to allow Tua Tagovailoa to put himself in a position where he could sustain a fourth concussion of the season.

Ultimately there are licensed neurologists involved here. Part of the concussion protocol is a signing off by an “independent neurologist” before the player can clear the protocol. Of course, the obvious and ridiculous problem is that the team pays these independent neurologists, which makes them anything but independent.

In an interview on Wednesday morning, medical malpractice lawyer, Jeffrey J. Zenna, told me, “After two concussions in one season, any ‘independent neurologist’ hired to assess when the player can exit the league’s concussion protocol will understand that their decision is being viewed through a legal as well as a medical lens.”

Tua’s current situation should be incredibly frustrating for everyone watching, as the NFL and its franchises have access to some of the best doctors in the nation. But, as Zenna pointed out, any neurologist who gets within 100 yards of Tua Tagovailoa will clearly understand that their career is on the line. They risk becoming defendants in a costly civil suit if they make the wrong decision concerning the care of an athlete who shouldn’t have been on the field after his second concussion this season.

All of this is best understood in the context of how the NFL runs its business. It’s worth keeping in mind that the NFL is a league that has been unwilling to do even small things to cut down on CTE. A recent Forbes article showed that for an investment of $12 million, the NFL could save up to $1 billion in player injury costs - including for CTE - by getting rid of artificial turf and replacing it with natural grass.

Instead, the NFL and its franchises continue to place the long-term health of their players behind the immediate desires of the game. While everyone wants to see their teams make the playoffs, this is a good time, as we follow the effects of Tua’s concussions in the short- and long-term, for us to ask at what cost.

About Aron Solomon

A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief legal analyst for Esquire Digital. He has taught entrepreneurship at McGill University and the University of Pennsylvania and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, Crunchbase, Variety, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.

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Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital, who has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.

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