Hagens Berman filed a lawsuit on behalf of player Zach Walen against Portland State University (PSU), Oregon Health Sciences University (OHSU) and the National Collegiate Athletic Association (NCAA) for failing to provide appropriate post-concussion medical care and negligently clearing him to return to football.
Walen, whose father Mark Walen is a former NFL (Dallas Cowboys) player and former NCAA college (UCLA) football athlete, was recruited to play football for the PSU Vikings but suffered a severe concussion after receiving a direct blow to his head during his first game on Sept. 1, 2012.
The athletic staff at PSU allegedly failed to identify the concussion during or after the game, and he only received medical attention when his family took him to the hospital after noticing he was exhibiting symptoms consistent with a concussion. PSU athletic staff later prepared an Injury Evaluation based on the incident, which noted that Walen was experiencing memory loss, in the form of anterograde amnesia.
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Walen’s treatment plan stated that PSU football officials should continue to monitor Walen, and when he was symptom free and after passing ImPACTtest, they could begin gradual progression back into football participation.
Walen failed the post-injury ImPACT test, scoring significantly below his baseline score. Walen, however, was never asked to perform a subsequent ImPACT test, even though according to PSU’s own treatment plan, a passing ImPACT test was required for Walen to return to play. Walen was also examined by Dr. Charles Webb, PSU’s team doctor and Director of Sport Medicine at OHSU, who confirmed that Walen was still impaired by his concussion – and yet didn’t provide any further medical attention for his concussion.
The NCAA Constitution requires that concussed athletes receive a medical clearance from a physician or a physician’s designee before they can return to play. Walen never received a medical release, nor is there any release in his medical file.
“Procedures were in place, but in a display of outright neglect, they were completely ignored,” Berman said. “In spite of a failed ImPACT score and the lack of medical release, PSU officials still found it appropriate to clear Walen for football participation.”
Walen soon began to participate in regular drills or practices and over the 2012-2013 school year, played approximately eight other games as a linebacker. During this time, Walen also began to experience unexplained anger, along with overwhelming feelings of depression and anxiety. He lost the ability to focus at school, displayed significantly impaired memory skills, and complained of crippling headaches. He withdrew from the PSU Vikings football team in October 2013.
Unfortunately, even after withdrawing from PSU’s football team, Walen’s symptoms worsened. Walen ultimately requested a medical withdrawal from PSU so that he could focus full-time on his rehabilitation. He then underwent a battery of tests and was ultimately diagnosed with post-concussion syndrome. It was during this time that Walen learned his reported symptoms stemmed from returning to play too early and that he also suffered a permanent brain injury.
The suit seeks $5 million in estimated damages for the loss of earning potential, as well as existing and future medical expenses incurred from ongoing rehabilitation.
Hagens Berman led a separate class action and settlement that will reform concussion policies across the NCAA. Last week a separate suit was filed against the Fèdèration Internationale de Football Association (FIFA) and affiliated soccer organizations in the United States by players alleging that these groups have failed to adopt effective policies to evaluate and manage concussions. That suit doesn’t demand monetary compensation, but instead, urges changes to current safety practices.
A confidential settlement agreement has recently been reached between the parties in Walen v. Portland State University, et al., in the Circuit Court of the State of Oregon, Multnomah County, No. 14CV12218.