The new blood test for traumatic brain injury and what it may mean for athlete welfare

Issues of traumatic brain injuries (TBI) in sports gained much public interest in 2011 when the former American football player Ray Easterling led a class action case against the National Football League (NFL) over the game’s handling of concussion. In Australia, Newcastle Knights rugby league player James McManus is currently in legal proceedings against his former club over the management of his multiple TBIs suffered during several games and during training.1 His case is expected to be heard in the New South Wales Supreme Court in March 2018.

Unlike the Easterling case that seemed to have focused on the NFL allegedly concealing the dangers of TBI, McManus’ case is expected to deal with issues of a club’s duty of care to its players pursuant to the Civil Liability Act (NSW).2 The court in McManus’ will likely look at issues of possible absence or maintenance of a safe system of work for employed rugby league players and the foreseeability of risks associated with a failure to conform to a proper and safe system of work. The legal analysis will involve scientific evidence from epidemiologists and sports medicine experts concerning what was known in the general sporting community and the rugby league community about the failure to properly treat TBI in 2015 when the alleged breaches occurred.

The NRL has made significant strides in the management of TBI since 2015. Its latest guideline for the management of concussion issued on 23rd November 2017 is based on the Consensus Statement produced following the 5th International Conference on Concussion in Sport, held in Berlin in October 2016.3 But since that consensus statement, the scientific knowledge and clinical assessment of concussion has continued to advance. As such the duty of care owed by clubs to their players, what risk is foreseeable and what precautions a reasonable club needs to take, and the burden of taking precautions to avoid the risk of harm are continuing to change.

One such scientific advancement is the U.S. Food and Drug Administration’s (FDA) recent approval of the first blood test (the Banyan Brain Trauma Indicator, BBTI) to evaluate concussion.4 A theme that runs through both the Easterling and McManus cases is the courts’ retrospective look at the diagnosis of a concussion or sub-concussion when it occurred. A sub-concussion is where there are no signs or symptoms but where long-term neurodegenerative conditions such as Chronic Traumatic Encephalopathy is possible.5 The question raised by the approval of the new test is whether the BBTI will assist the courts in future cases: will what be deemed reasonable and foreseeable change because of the BBTI? Furthermore, will the BBTI influence how insurers that cover injuries in sports do their risk assessments, do sports risk management policies need to be updated?

To address these issues, this article will:

• First look at head injuries and what constitutes a concussion and TBI. It will discuss some of the limitations of imaging and bedside/on-field neurocognitive clinical testing and some of the practical considerations for the clinicians in the sports field and in the emergency hospital setting.

• Then, it will consider how the BBTI works and what its potential clinical impact and limitations would be.

• Finally, it will examine whether the BBTI influences the club’s duty of care towards its players and in shaping sports risk management policies.