Florida Plancher Decision: A Sweeping Blow to Student Athletes Suffering from Brain Injuries*
On August 16, 2013 Daytona’s Fifth District Court of Appeal ruled against a student athlete, deceased Ereck Plancher, reducing the jury’s verdict of $10 million to the $200,000 sovereign immunity cap. *(Update previous blog) On May 28, 2015, the Florida Supreme Court upheld the lower appellate court.
Plancher died tragically in 2008 after collapsing in an off season football work out session supervised by his University of Central Florida coach, George O’Leary and staff. The trial in Orlando was hotly contested and widely reported. The evidence presented that the jury accepted was that players were forced to practice without safety precautions and staff being available to treat players who collapsed from heat exhaustion.
The wrongful death suit was filed against the University of Central Florida Athletic Association (UCFAA) which denied all of the negligence allegations and claimed protection under the sovereign immunity doctrine under Florida law which limits damages at $200,000.
The Orlando Sentinel reporting on the Fifth District’s decision stated Florida is one of at least 33 states with laws limiting what state agencies pay in damages. Absent a successful claim bill in the Florida Legislature, which is a difficult hurdle to overcome, or a reversal of the decision by the Florida’s Supreme Court, not an easy task, Plancher’s damages are limited to $200,000.
Concussions in the National Football League (NFL) and law suits against the NFL due to repeated concussions and chronic traumatic encephalopathy (CTE) draw a lot of media attention. Following the decision in the Plancher case, receiving little or no publicity are the dangers of Florida student athletes to brain injuries and the receipt of adequate compensation under Florida’s sovereign immunity. In short, the Plancher case could have harmful ramifications to brain injured student athletes suffering from a concussion or a brain injury on the playing field who play for state schools or agencies (like the UCFAA) falling under the umbrella of sovereign immunity protection.
It is a well known fact that acute medical care and long term brain rehabilitation of victims of a moderate to serious brain injury is very expensive. Treatment at a brain injury facility can range from $1,000 to $2,500 per day depending on the nature of the injury and treatment required. A $200,000 damage award is inadequate to cover even the initial treatment. Imagine the implications of a 20 year-old student athlete harmed by the negligence of his coach or staff suffering a brain injury on the playing field who needs round-the-clock care to survive and later thrive?
It has been reported that student athletes may be more susceptible to brain injury. An article in “Rolling Stone” (RS) magazine highlights the dangers presented by concussions especially to high school football players resulting in symptoms ranging from post-concussion syndrome to death. Concussions to the head are a form of traumatic brain injury. The article points out that the mechanism of injury with concussions “isn’t bruises and bleeds but rotational and linear stretching and tearing” within the brain. Helmets cannot prevent concussions.
The RS article blends the stories of a high school player, an NFL player, and a college player who suffered concussions on the gridiron with the current science of brain injury to produce an informative article that incorporates the emerging evidence about traumatic brain injury from repeated concussions.
There is the tragic story of Eric Pelly, a high school football player turned rugby player who suffered multiple concussions, and died suddenly at the age of 18 from brain swelling. Brain tissue from Eric’s brain showed evidence of CTE. Studies of brain tissue from former NFL players like Iron Mike Webster had evidence of CTE who suffered from dementia as a result of repeated concussions. Doctors studying Eric’s brain found poisoned tau cells, evidence of CTE.
As reported by RS, while controversial, second impact syndrome appears to affect only children or those under the age of 25. Nathan Stiles suffered from a concussion playing high school football. While he complained of headaches, he was cleared to play. In his last game, he felt terrific head pain and later died in the hospital. Nathan died not having major head trauma in his final game, but even minor trauma to the head may have been sufficient enough to cause second impact syndrome. Nathan, like Eric, had poisoned tau cells.
The RS article notes that some children and NFL players are more susceptible than others to CTE from repeated concussions. There is genetic variability – NFL quarterbacks like Joe Montana and Steve Young show no outward signs of CTE or dementia even though they sustained multiple blows to the head. In years to come scientists may find the genetic markers or factors to identify unhealed concussions.
For now, in light of the Plancher decisions, student athletes suffering a brain injury on the playing field due to the negligence of a coach or coaching staff who play for state schools or agencies are limited to damages of $200,000. The Florida Supreme Court stated the Planchers must look to the Florida Legislature to collect any amount awarded above the statutory cap.