By: Benjamin Trotto
University of Miami alum and 2001 college football National Champion Najeh Davenport underwent a neurological evaluation on November 5, 2019.[1] The results of the exam would determine how much compensation Davenport was entitled to under the National Football League Concussion Settlement. According to Davenport, who retired in 2008 at the age of 29 after playing seven NFL seasons, he suffered at least 10 concussions throughout his football career.[2] Ultimately, Davenport’s physician concluded that his cognitive test scores qualified him under the settlement for Level 1.5 Neurocognitive Impairment in one domain (executive functioning), and for Level 2 Neurocognitive Impairment in another domain (language).[3]
However, after Davenport had been notified that he would receive compensation for his successful claim, the NFL appealed the claim determination.[4] The league had done its own math on Davenport’s cognitive test scores, arguing that by their calculations, the physician failed to apply the “industry standard Heaton norms,” which would have “materially and critically affected the outcome of Mr. Davenport’s claim.”[5] The Heaton norms are adjustments made to cognitive test scores based on whether the test taker is African American or Caucasian. The Heaton norms adjust cognitive ability to be lower for African Americans and higher for Caucasians.[6] Thus, if the Heaton norms had been applied, Davenport’s lower initial cognitive ability would have reduced the level of cognitive impairment he could show and thus the amount of compensation he could receive for his brain injuries.[7] Yes, according to Davenport’s Complaint, the NFL argued that Davenport shouldn’t be compensated in part because he is Black.
On August 20, 2020, the Concussion Settlement Special Master denied the NFL’s appeal, remanding the case to the Claims Administrator to determine whether the physician had an adequate reason not to apply the Heaton norms to Davenport’s cognitive scores.[8] Davenport’s Co-Plaintiff, Kevin Henry, had his claim denied entirely.[9] Originally, Henry’s physician tested him for Level 1.5 impairment in one domain, and Level 2 classification in two.[10] However, Henry’s claim for benefits was still denied. Two years later, Henry received a second neurological evaluation where the physician used “Full Demographic Model . . . which includes age, education, race/ethnicity, and gender.”[11] This time, the physician told him that his test scores didn’t qualify him for Level 1.5 or Level 2 impairment in any domain.[12] Henry’s physician explained what had changed from the first exam to the second as follows: “different normative comparison groups were used at the previous evaluation, which also may account for some discrepancies in the standard scores and meeting impairment criteria.”[13]
Here, the NFL, a league of majority Black players,[14] is automatically assuming Black players to have lower cognitive ability than white players as a means of minimizing how much to pay Black players under the Concussion Settlement. This practice seems extremely racist and discriminatory, and frankly is disgusting to the conscience. Yet, as the NFL argued, racial adjustments in health assessments are the “industry standard.”[15] The practice known as “race correcting,” “race adjusting,” or “race norming” raises numerous legal issues to the extent that individuals are denied treatment or compensation because of their race. The Henry-Davenport suit ultimately was the first domino falling, culminating on March 4, 2022, when the United States District Court for the Eastern District of Pennsylvania ordered that racial adjustments not be used in determining cognitive impairment as part of the Concussion Settlement.[16] The Henry-Davenport suit marked the beginning of a legal challenge to the standard practice of using race as a factor in determining the allocation of health resources among individuals in need of treatment.
American Football and Brain Trauma
American football, arguably this country’s most popular sport, is a collision sport where severe player injuries are common.[17] Repeated concussion is one of the most common injuries suffered by football players at all levels, resulting from helmet-to-helmet collisions and whiplash that occur frequently during practice and games.[18] Years-long head trauma of the sort commonplace in the National Football League (NFL) can cause Chronic Traumatic Encephalopathy (CTE), a rare degenerative brain condition likely resulting from head traumas.[19]
CTE is not well understood and can only be diagnosed at autopsy.[20] A 2017 study of donated brains found CTE in the brains of 99% of NFL players, 91% of college players, and 21% of high school players.[21] CTE can result in cognitive impairment such as difficulty thinking, memory loss, and executive function; behavioral changes such as impulsive behavior or aggression; and mood disorders such as depression, emotional instability, substance abuse, and suicidal thoughts or actions.[22]
In 2012, former players sued the NFL in a federal multidistrict litigation for allegedly breaching a duty to NFL players to warn and protect them of the long-term health risks posed by concussions.[23] After a court-ordered mediation, the parties agreed to a settlement in 2015 which has so far paid out $968,981,755 in 1,392 awards from the 3,331 claims received from the class of 20,567 members.[24]
The Effects of Race in the NFL Concussion Settlement
To qualify for Concussion Settlement benefits, a claimant must undergo a neurological exam with a qualified physician and show a sufficient cognitive impairment, as measured by test scores.[25] The physician measures each claimant’s current cognitive ability by testing them in different cognitive “domains,” into which the physician classifies the claimant as either Level 1, Level 1.5, or Level 2 based on test scores.[26] The level of impairment is measured by the difference between the claimant’s current cognitive ability and an estimation of their “premorbid” cognitive ability, or their cognitive ability before they suffered head trauma.[27] The Concussion Settlement gave physicians two different ways to use the claimant’s demographic data to estimate premorbid cognitive ability: the “simple model” where only sex assigned at birth, race, ethnicity, and education were used; and the “complex model,” which incorporated “developmental, personal, and more specific demographic data.”[28]
In 2020, Henry and Davenport filed a class action suit alleging that they were denied fair compensation on the basis of race.[29] According to their complaint, the inclusion of race in the cognitive impairment formula was “designed to, and did, make it far more difficult for Black retirees to receive benefits for the brain injuries which are a routine result of playing pro football.”[30] The complaint alleged that being Black automatically lowered premorbid cognitive ability, thus making it more difficult for Black players to show sufficient cognitive impairment to get compensation than non-Black players of equal cognitive ability.[31]
However, the United States District Court for the Eastern District of Pennsylvania dismissed the complaint for failure to state a claim in March 2021, calling the lawsuit “an improper collateral attack on the Settlement Agreement in the NFL MDL.”[32] By agreeing to the approved Concussion Settlement, race correcting and all, the players waived their right to challenge its terms. The court did note its concern about “race-norming” and referred the concussion settlement parties to a magistrate judge.[33] One year later, the parties’ negotiated agreement on modifications to the concussion settlement were approved by Judge Brody.[34] Physicians were no longer to use race to adjust cognitive impairment results in classifying Concussion Settlement claimants.
The Legal Future of Race Correcting in Health Care
Legally, the court probably made the correct decision by dismissing Henry and Davenport’s civil suit. Courts have no continuing obligation to ensure the fairness of class action settlements, once they have been agreed upon.[35] Since the court is not a fiduciary to the settlement, the agreement of the parties is final. Allowing Henry and Davenport’s claim to continue may open the door for the NFL to challenge the terms of the Settlement as overly burdensome, for example.
However, the dismissal foreclosed the possibility of discovery on the issues of whether the NFL actually discriminated based on race. We will never know how many of the Black claimants who were denied compensation were actually denied based on race, or how many white claimants only received compensation because of their race. We will never know how widespread the practice of race-norming in premorbid cognitive testing actually was in NFL Settlement exams.
We do know that the practice of race correcting is quite widespread in the medical field.[36] As a variable, race correlates with many different genetic and environmental factors that influence health.[37] Thus, physicians who use race as a factor to estimate premorbid health sacrifice some of the accuracy of a more complex method in favor of the quick decision making that a simple method provides.
The practice of race correction has come under more scrutiny in recent years.[38] Many physicians argue that the widespread practice serves to allocate treatment away from vulnerable groups, particularly Black people.[39] The concept of racial classifications determining health treatment can seem completely ridiculous in the case of mixed-race people. Jordan Crowley, a 22 year old college student who is ¾ white and ¼ Black, is in line for a kidney transplant.[40] Jordan was informed that the race adjustments his physicians used to estimate his eGFR (estimated glomerular filtration rate), or kidney health, deemed him transplant ineligible when he was classified as Black, and transplant eligible when he was classified as white.[41] Ultimately, Crowley was classified as Black and still needs a kidney transplant. [42] Crowley sued the hospital for discrimination in public accomodations on the basis of race under Title VI of the Civil Rights Act of 1964, Section 1557 of the Patient Protection and Affordable Care Act, and New York public accommodations law.[43] He also sued for breach of contract.[44]
Unlike the Henry-Davenport suit, Crowley’s suit does not challenge the agreed-upon terms of a settlement. Therefore, the case will likely proceed to discovery if the Court finds that it states a claim. If Crowley can win and set a precedent for those who were denied treatment as a result of a race-correcting algorithm, it may induce hospitals to either stop using race correction, or just to not tell patients if race correction was used in deciding their treatment. Discovery alone would shine a greater light on exactly how much race factors into treatment decisions for Black people with kidney ailments.
Greater transparency in how race affects treatment decisions would allow patients to choose between healthcare providers who use race correction and those who don’t, at least in areas where those options are available. Perhaps not using race correction will become a selling point for healthcare facilities of the future. Hopefully, patients without such an option may be more aware of a legal remedy to their race-based denial of healthcare due to the increased scrutiny and visibility of the widespread use of race correction. Henry and Davenport forced the NFL to the negotiating table, and the collective power of NFL players as the stars of the show leveraged the league into ending race correction in premorbid cognitive estimations. With the hard work of dedicated lawyers, aided by the spotlight of the media, regular people with less power than NFL players may also be able to obtain fair and equal health treatment based on their individual needs, as opposed to racist assumptions.
[1] Class Action Complaint For Money Damages at 4, Henry et al. v. National Football League, No. 20-4165 (E.D. Pa. August 25, 2020).
[2] Id.
[3] Id. at 4-5.
[4] Id. at 4.
[5] Id. at 5.
[6] Heaton et al., Demographically Corrected Norms for African Americans and Caucasians on the Hopkins Verbal Learning Test-Revised, Brief Visuospatial Memory Test-Revised, Stroop Color and Word Test, and Wisconsin Card Sorting Test 64-Card Version, Journal of Clinical and Experimental Neuropsychology, August 2011 at 793–804.
[7] Class Action Complaint For Money Damages, supra note 1, at 4-5.
[8] Class Action Complaint, supra note 1, at 5.
[9] Id. at 3.
[10] Id.
[11] Id. at 4.
[12] Id.
[13] Id. at 3-4.
[14] See generally Richard E. Lapchick, The Institute for Diversity of Ethics in Sports, The 2021 Racial and Gender Report Card: National Football League (Ahmed et al. eds., 2021).
[15] Id. at 4.
[16] Order, In re National Football League Players’ Concussion Injury Litigation, No. 2:12-md-02323-AB (E.D. Pa. March 4, 2022).
[17] See generally Smith et al. Characterization of American Football Injuries in Children and Adolescents, Journal of Pediatric Orthopaedics, February 2018 at e57-e60.
[18] See generally Collins et al., Examining Concussion Rates and Return to Play in High School Football Players Wearing Newer Helmet Technology: a Three-Year Prospective Cohort Study, Neurosurgery, February 2006 at 275-86; Rowson et al., Rotational Head Kinematics in Football Impacts: an Injury Risk Function for Concussion, Annals of Biomedical Engineering, January 2012 at 1-3.
[19] Mayo Clinic, Chronic traumatic encephalopathy, https://www.mayoclinic.org/diseases-conditions/chronic-traumatic-encephalopathy/symptoms-causes/syc-20370921.
[20] Id.
[21] Mez J, Daneshvar DH, Kiernan PT, et al., Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football, Journal of the American Medical Association, July 25, 2017 at 360–370.
[22] Mayo Clinic, Chronic traumatic encephalopathy, https://www.mayoclinic.org/diseases-conditions/chronic-traumatic-encephalopathy/symptoms-causes/syc-20370921.
[23] Class Action Settlement Agreement (As Amended) at 5, In re National Football League Players’ Concussion Injury Litigation, No. 2:12-md-02323-AB (E.D. Pa. February 13, 2015).
[24] NFL Concussion Settlement, Reports & Statistics (as of 3/21/22), https://www.nflconcussionsettlement.com/Reports_Statistics.aspx.
[25] Class Action Settlement Agreement (As Amended) at 25-26, No. 2:12-md-02323-AB.
[26] Id. at 105-122.
[27] Id.
[28] Id. at 115.
[29] Class Action Complaint For Money Damages, No. 20-4165 at 5.
[30] Id. at 2.
[31] Id.
[32] Order, Henry et al. v. National Football League, No. 20-4165 at n1.
[33] Id.
[34] Order, In re National Football League Players’ Concussion Injury Litigation, No. 2:12-md-02323-AB.
[35] See Filip Grzelak, A Court’s Continuing Obligation to Ensure Fairness of Class Action Settlements, 73 U. Miami L. Rev. 993 (2019).
[36] Darshali A. Vytas, Leo G. Eisenstein, and David S. Jones, Hidden in Plain Sight — Reconsidering the Use of Race Correction in Clinical Algorithms, New England Journal of Medicine, August 27, 2020 at 874-882.
[37] Id.; see also Burchard, Esteban González, et al., The importance of race and ethnic background in biomedical research and clinical practice, New England Journal of Medicine, March 20, 2003 at 1170-1175.
[38] See Vytas et al., supra note 26.
[39] Id.
[40] Slate, Jordan Crowley Would Be in Line for a Kidney—if He Were Deemed White Enough, Jennifer Tsai (July 27, 2021).
[41] Complaint at 2, Crowley v. Strong Memorial Hospital of the University of Rochester, No. 21-cv-1078 (W.D.N.Y. October 10, 2021).
[42] Complaint, Crowley v. Strong Memorial Hospital of the University of Rochester, No. 21-cv-1078 (W.D.N.Y. October 10, 2021).
[43] Id. at 3.
[44] Id.
