Pulling Back the Legal Curtain Ep 3: Discussing Tua Tagovailoa with Dave Langer

Why call Dave Langer?

Paul Edelstein:

Dr. Dave, the reason I called you is because all this week I've been getting a lot of calls regarding what happened to Tua, the Miami Dolphins quarterback, over the last two weeks, which has been a very prominent story in the news. I've been getting calls from a legal perspective because as I know you remember, we represented Magomed Abdusalamov who was a boxer that had a severe neurological injury that could have been addressed much better by the physicians that were assigned.

And now, there are a lot of people calling me, asking me what I think about the medical treatment that this quarterback for the Miami Dolphins got. And I thought, "Well, I have a legal opinion on that but I'm not a doctor." I've had a lot of people tell me that. So I said, "Well why don't we call a doctor?" So I figured if I was going to call someone, I might as well call the chair of neurosurgery at Lenox Hill Hospital, professor of medicine in Hofstra in Northwell, prominent physician for many, many years and not at all a bad looking guy. I figured I'd call you.

From a medical perspective, if you just saw Tua’s injury, what would you be thinking?

Dave Langer:

That inherently is the problem, is that concussion is as much a clinical... It's a diagnosis. Very often you can't see it on a film or there's no test, so there's a fair amount of subjectivity and so it's visual. It's like you saw what I saw, everybody saw the same thing. Just like any other video, people can see it through different perspectives. Rodney King didn't happen to some people or people see two videos. They see something completely different. Look at all these cop videos that come out and one side says they were defending themselves and this side says they were acting inappropriately, whatever.

I think this is even more subtle because it's very clear to any person of what they were seeing at the time, but you got to remember that the protocol. I'm not sure if it requires that they look at videos over and over. The doctor seeing it from playing field level may not have seen as well, then gets the player into a private room without the crowd around and the guys sits there and seems good and then there has to be a bias.

Unfortunately, that's where it starts to get gray. So it's maybe what we had that conversation about why that's important and that bias is what undoubtedly played a role here. These are decisions people make based on their training, their intelligence, their experience, what they saw, what they think they saw. Everybody has a perception. Perception is actually linked to your emotions; it's linked to lots of different things. In the heat of the battle, a decision was made, and I think everyone agrees it was the wrong one.

Is there a physician that's trained in your field that would look at the video and not be suspicious for neurological injury or brain injury?

Dave Langer:

I'm sure there is. Like I said, there obviously is. The truth is that the reason why people take these jobs are often unrelated to their skills and their qualifications. For many of them, it can be their political jobs. The reason why they choose to do these jobs is to say, "I'm an NFL doctor. I can put it on my business card." It's a way of getting patients. It's a way of getting attention. So selectivity of who gets these jobs is often based, not on maybe their skills and their experience, but more on who they know or how hard they push. What are the qualifications of this neurologist? And by the way, they haven't announced his name. It protects them a bit. If they screw it up, I'm not sure what the legal ramifications are for him, whether he is making something, they're not paid very much.

I think they more or less do gratis very often. There's a quid pro quo, “We’re going to give you this title of head injury specialist for Miami Dolphins, and you're going to come every Sunday and sit in the sideline and bring your family and tell everybody you're the team doctor,” and most of the time it works out. Trouble is that in this particular situation, it didn't. I can't imagine that any trained neurologist, neurosurgeon, what have you, would see that video and think anything other than this was a concussion. What he was thinking about, I have no idea. You have to ask him and now we don't even know who it is.

The Dolphins announced that this doctor was a neurotrauma consultant. What is that?

Dave Langer:

Paul, I don't think there's such a thing. And on top of that, if you look back at the history of the NFL, one of the doctors that made the original going back before they really changed a lot of their approach to this was a rheumatologist. I mean, the NFL has a history, in my opinion. Now I think they've gotten a lot better; their head doctors are very talented but each team has their own way of handling this. It's kind of like the United States, there's a federal government and then each of the different states has their own way of management based on their ownership, based on their coach. There's a lot of local control. I think the NFL does have a fair amount of say on the consistency that's particularly who the team doctors who's ultimately responsible, but the team doctors tend to be orthopedic surgeons, in general.

They're not neurotrauma specialists. And so that guy who is team doctor has to ask for help here. He's the ultimate arbiter of the decision. The neurotrauma specialist makes the recommendation and then the team doctor ultimately is the one who makes the decision but that is despite the fact that the vast majority of injuries that require attention are orthopedic. The head injuries have, in general, historically been things that either have been overlooked or only become to an attention when they're really severe. There haven't been that many occasions where people are actually not that unconscious. That's relatively uncommon. What we see are these types of things; there's a temporary either transient change in their level of consciousness or what we see on the field, which is by the time they get to the player, he's often talking and awake. What we have is the videos and in general, I think that the people on the sideline, I can't imagine they have a great vantage point on this.

Wherever they're sitting, maybe they were... They're not watching every play carefully. And then when it does happen, they're going to rely on the videos just like we are. And so how that's managed, I have no idea. Are they required to look at them? Do they look at them? They go to the players. We know in the first 10 minutes they are looking at the player and making sure the player's okay, which is appropriate. Then he goes back in the locker room or under the tent and they figure out, "Is this guy okay?" How did they get the information? I don't know if that's protocolized. All these things may be very based on how each team manages, how each team doctor manages it and how each trauma consultant manages it. And I would imagine those consultants can vary. They could probably be neurologists, they can be MDs, they could be DOs, they could be neurosurgeons. Maybe they could be psychiatrists for all we know. I have no idea what the protocol is for that.

Conclusion:

Paul Edelstein:

Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn, because we get so many questions over so many years about what goes on behind the legal curtain in the legal world. We tried to put this together so it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinslaw.com. Either way, we're always going to be here in front of and behind the legal curtain doing the only thing that we know how to do which is, proceed. Take care.

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