Former Portland State University football player Zach Walen has sued his alma mater, Oregon Health and Science University, as well as the National Collegiate Athletic Association (NCAA) for damages related to a sustained concussion. Specifically, Walen has alleged that the defendants failed to provide adequate post-concussion medical care and negligently allowed him to resume participating in football activities.
The Complaint, filed in the Circuit Court of the State of Oregon in the County of Multnomah, asks for damages in the amount of $5 million. Broken down, Walen has requested a judgment of $3.25 million in economic damages (medical expenses, loss of earning capacity and loss of ability to perform personal and household services) and $1.75 million for the alleged pain, anxiety and discomfort he has suffered and assumes will continue to incur for the foreseeable future.
Walen suffered a concussion in his first season performing for the Portland State University Vikings. He claims that he never received sufficient post-concussion testing and care and was cleared to resume play before his concussion had been completely resolved. The result, as alleged, is that Walen unfortunately suffered further concussive and subconcussive hits before his brain had properly healed, leading to the serious and permanent brain injuries he suffers from today.
The lawsuit asserts blame against Portland State University for not following its policies and procedures concerning the identification of concussions and the way that they are managed. Oregon Health and Science University is charged with not providing required post-concussion medical care. The weakest argument may be the one associated with the NCAA, which is alleged to have "created an environment" where Portland State could become lax in enforcing its concussion-related procedures.
"Procedures were in place, but in a display of outright neglect, they were completely ignored," said attorney Steve W. Berman, who filed the lawsuit on behalf of Walen. "Given the systemic negligence on the part of PSU, OHSU and the NCAA I am certain that Walen is not the only student-athlete who failed to receive proper post-concussion treatment. We are proud that he has decided to come forward and shine a light on those who take the health and safety of student-athletes for granted. I have no doubt that Zach Walen will help current and future PSU student-athletes."
There will likely be a major focus on the Immediate Post Concussion Assessment and Cognitive Testing procedure, also known as the ImPACT test. The test is designed to assist in the assessment of whether a player has returned to baseline and has recovered from a concussion.
Walen failed his first post-injury ImPACT test.
Walen's attorneys claim that a second post-injury ImPACT test was necessary before giving him the green light to resume play. A second ImPACT test was never performed.
In October 2013, Walen withdrew from the Portland State football team. His symptoms worsened and he ultimately withdrew from the university to focus on his rehabilitation.
Darren Heitner is a lawyer and the Founder of South Florida-based HEITNER LEGAL, P.L.L.C., which has a focus on Sports Law and Entertainment Law.
