​Judge in concussion lawsuit orders insurer to produce medical records

The National Hockey League’s insurance company was ordered Wednesday night to hand over the medical records of former players in an ongoing concussion lawsuit.

Chubb Corp. has provided workers’ compensation benefits for NHL teams since 1994. A judge in U.S. federal court in Minneapolis said Chubb must redact players’ identifying information before the records are turned over to lawyers for the 105 former players who are suing the NHL.

The former players charge that the NHL didn’t do enough to warn its players about the long-term risks of suffering multiple concussions. The league, the players say, profited from and marketed violence.

The NHL counters that any player complaints should be dealt with in arbitration, not in court, because of the league’s collective labour agreement with the National Hockey League Players’ Association. The league also says players could have “put two and two together” about the risks of returning to the ice after brain injuries.

Lawyers for the former players want the medical documents from Chubb because they believe the records may shed more light on the prevalence among former players of Alzheimer’s, Parkinson’s and other brain-crippling disorders.

Lawyers also hope to discern how much the NHL or its insurer has known about the health of former players.

Brian Penny, a lawyer for the former players, served Chubb with a subpoena for those documents on Apr. 20, 2015, but Chubb refused the request.

Chubb had argued that it would cost thousands of dollars for its employees to collect the information. The insurer also said that turning over the data would violate the privacy rights of the former players.

Judge Susan Nelson denied that argument in her order, noting that the records sought were not those generated by a doctor in a confidential relationship with a player. Rather, the independent medical exams [IMEs] were “the product of an inherently adversarial relationship between the claimant who is seeking workers’ compensation benefits and his employer’s insurer, Chubb.”

Former players seeking such benefits “know from the outset that the results of their IME will be shared with others at Chubb and most likely with their employer,” Nelson wrote in her order.

Chubb was ordered to redact players’ names, dates of birth, social security numbers and any other information that could identify them, such as their teams, current occupations, and the exact dates of their injuries.

The issue of insurance and actuarial records also arose in the NFL concussion litigation.

As part of a $1-billion settlement in the NFL lawsuit the league was required to make public data about the long-term health of its players.

That data shows NFL players are far more likely than the general public to develop Alzheimer's disease, Parkinson's and other cognitive disorders. If the statistics held by Chubb are anything like those disclosed in the NFL lawsuit, they would be troubling for the NHL.

The NFL admitted in court documents filed in September 2014 in U.S. federal court in Philadelphia that it expects nearly a third of retired players to develop long-term cognitive problems. The league admitted conditions are likely to emerge at “notably younger ages” than in the general population.

About 28 per cent of former NFL players — as many as 5,900 — will develop brain injuries that would merit compensation under the terms of the settlement, but only 60 per cent, or 3,600, of those players were expected to file medical claims, the NFL said in court filings.

According to assumptions produced by lawyers for the NFL’s actuaries and disclosed in September 2014, NFL players younger than 50 had a 0.8 per cent chance of developing Alzheimer’s or dementia compared with less than 0.1 per cent for the general population.

For players aged 50 to 54, the rate was 1.4 per cent, compared with less than 0.1 per cent for the general population. That gap between the players and general population widens as the age of players increases.

The actuarial data presumes that 220 living NFL players have dementia now, and that about 1,500 will have the disease in the future. The data was released publicly in response to petitions made by media organizations and several of the 5,000 former NFL players suing the league.