Chubb Corp., the National Hockey League's insurance company, is asking a U.S. federal court judge to weigh privacy concerns and consult with retired NHL players before ordering the insurer to turn over their medical claims information as part of the ongoing concussion lawsuit.
Lawyers for former NHL players suing the league are seeking Chubb's documents - they are pursuing records related to all retired NHL players who have suffered head injuries, not just those involved in the litigation - because they believe the records will reveal how many former players have been diagnosed with Alzheimer's disease, Parkinson's disease and other brain-crippling disorders.
The lawyers have been trying to obtain the documents for more than a year. In April 2015, Brian Penny, a lawyer representing the former players, served Chubb with a subpoena for NHL-related documents, but Chubb, which has been the league's insurer since at least 2001, refused the request.
In February 2016, 10 months after the subpoena was delivered, Penny filed a motion with the court requesting Chubb be ordered to produce all of its NHL-related documents.
In documents filed May 20 with the U.S. Federal Court in Minneapolis, where the concussion lawsuit is playing out, Chubb argued Magistrate Judge Janie Mayeron should not force the company to produce any medical documents before NHL retirees are consulted about the request.
"Production of NHL retirees' [independent medical examinations] would affect their rights - in particular, their right to the privacy in their medical information," Chubb lawyer Peter Walsh wrote. "Like other medical records, IMEs contain intimate facts of a personal nature, and thus are protected by the right of privacy in medical information. Plaintiffs contend that IMEs are not protected by the physician-patient privilege. But sometimes they actually are."
Walsh wrote that the affected retirees must first be notified and given an opportunity to be heard before the court orders any document production.
Simply redacting identifying information from the medical records isn't enough to offset privacy concerns, Walsh wrote.
"Redaction of the usual identifying information from an IME still leaves intact detailed, intimate descriptions of the claimant and his medical history," Walsh wrote. "That information by itself may be enough to identify the claimant."
A group of 105 former players are suing the NHL in U.S. federal court in Minneapolis, charging 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.
As part of a $1-billion settlement in the NFL concussion lawsuit — a U.S. appellate court in April approved the settlement after 175 players opposed it — the NFL was required to make data about the long-term health of its players public.
That data, compiled by consulting firm The Segal Group, shows NFL players are far more likely than the general public to develop Alzheimer's disease, Parkinson's disease and other cognitive disorders. If the statistics held by Chubb are anything like those disclosed in the NFL lawsuit, it could be problematic 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.
Similar statistics are not publicly available for former NHL players. A lawyer involved with the NHL concussion lawsuit said it's possible that attorneys for the former players will claim that the percentage of brain-injured NHL players is comparable to the statistics for former NFL players.
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