The Boogaard Lawsuit We Didn't Expect

On May 13, 2011, Derek Boogaard, a 28-year old hockey player for the New York Rangers, died of an accidental mix of alcohol and oxycodone.  He was the Rangers’ “enforcer,” or “tough guy,” or “goon,” whose job it was to fight another player when his team needed an emotional lift or when an opposing player took liberties with one of his team’s more skilled players.

Boogaard’s death raised questions about the impact that the repeated head traumas and the treatment he received had on his physical and psychological condition.  It even led to a three-part piece in The New York Times called, “Punched Out: The Life and Death of a Hockey Enforcer,” by John Branch.[1]  Boogaard’s autopsy revealed significant traumatic brain injuries and chronic traumatic encephalopathy (CTE).

Today, news surfaced[2] that Boogaard’s parents filed a $9.8 million lawsuit against the NHLPA, the players’ union, and claimed that the union was responsible for collecting the $4.8 million remaining on their son’s contract, and $5 million in punitive damages.

After reading the Times’ series, we have been closely monitoring whether any lawsuit would flow from Boogaard’s death, however, this contract-based action was not the lawsuit we expected.

Today’s news acknowledges that Boogaard had been prescribed, “a multitude of narcotics and sleeping pills by both the team doctors, physicians, trainers, and dentists of the New York Rangers and the Minnesota Wild.”[3]  Based on those claims, we expected the Boogaards to file a negligence and medical malpractice case against those who may have contributed to their son’s deteriorating physical and mental health.

So, who -- if anyone -- breached his/her duty to keep Derek Boogaard safe, healthy, and free from unreasonable danger?  As Branch explicitly detailed in his series, it appears that multiple parties could be held liable for what happened to Boogaard, and we explain the conduct of the potential defendants below (independent of any statute of limitation restrictions):

·         Western Hockey League/Hockey Canada – The gateway to the NHL, junior hockey has condoned fighting forever, allowing 16-19 year olds to square off against one another more often than NHLers do.  The organizations certainly had notice of the potential consequences with Don Sanderson's death.[4]

·         Regina Pats/Prince George Cougars/Medicine Hat Tigers – In 1999, Boogaard’s junior team and the league in which it plays allowed the 17-year old to fight teammates 12 times in 4 scrimmages.

·         Boogaard’s junior career continued with his role as enforcer, and his teams marketed him as the “Boogeyman.”

·         East Coast Hockey League/Louisiana IceGators – Minor pro league and team.  This league has been known as a rough-and-tumble double-A-type league since 1988.

·         American Hockey League/Houston Aeros – The “Boogeyman Cam,” showing fight replays, is born.

·         National Hockey League – With the NFL concussion lawsuits starting to make national news, it is only a matter of time before NHL players realize that the League knew or should have known about the effect that fighting has on the brain.  This is not boxing.  This is bare-knuckle brawling.  Litigation may be the only way for players to ensure their future safety.

·         Minnesota Wild – Coaches witnessed behavioral changes and did nothing other than let him leave the team to become a free agent.

·         New York Rangers – “Len Boogaard, knowing that his son had been enrolled in a substance-abuse program since September 2009, was surprised to see so many prescription bottles in the bathroom with the names of Rangers doctors. He was also surprised to hear from his son that he had been given four days’ notice for his next drug test.”[5]  Tellingly, “[t]he team refused to answer a detailed list of questions regarding their medical treatment of Boogaard during the season and his time in rehabilitation.”[6]

·         Team Doctors – Branch reports that in 2009 a doctor asked Boogaard to name a word that starts with the letter “R.”  Boogaard couldn’t.  Also in 2009, Boogaard was going through 8-10 painkillers at a time.  “Boogaard had learned that there was no system to track who was prescribing what.”[7]  This is not the first time that a player has questioned the actions of NHL team doctors.[8]

·         NHLPA – Apart from the contractual claims, if the union is truly in place to look out for the players’ safety, how could it not demand a prudent standard of care among team doctors and trainers?  This is not the first curious stance from the union, as it still takes the position that eye-protecting visors should not be mandatory.

The numerous failures of those above in setting up monitoring systems and flagrantly prescribing narcotics should certainly give current players pause in thinking about who, in fact, is actually looking out for their best interests.

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[1] http://www.nytimes.com/2011/12/04/sports/hockey/derek-boogaard-a-boy-learns-to-brawl.html

[2] http://slam.canoe.ca/Slam/Hockey/NHL/NYRangers/2012/09/21/20221451.html

[3] Id.

[4] http://slapshot.blogs.nytimes.com/2009/01/02/senior-player-dies-from-injury-sustained-in-on-ice-fight/

[5] http://www.nytimes.com/2011/12/06/sports/hockey/derek-boogaard-a-brain-going-bad.html?pagewanted=3&_r=moc.semityn.www

[6] http://www.nytimes.com/2011/12/06/sports/hockey/derek-boogaard-a-brain-going-bad.html?pagewanted=6&_r=moc.semityn.www

[7] http://www.nytimes.com/2011/12/06/sports/hockey/derek-boogaard-a-brain-going-bad.html?pagewanted=2

[8] http://www.ama-assn.org/amednews/2002/05/20/prse0520.htm

We Must Ensure That New York Treats Victims Fairly.

In New York, a plaintiff must bring an ordinary medical malpractice case within 2 1/2 years from the date when the malpractice occurs.  The problem with this limitation is that a patient may not be aware that a doctor was negligent until after that time has expired.  As a result, a victim will have no remedy because the courthouse doors will be closed to him/her.

The most frequent instances where this patently unfair law rears its head is when a doctor misreads a test, such as a mammogram, PAP smear, or prostate test.  If the test shows evidence of cancer, a curable disease may become a symptom-free killer.  New York is one of five states (Arkansas, Idaho, Maine, and South Dakota) to have this archaic accrual rule.  A New York judge has even called this rule, "unjust, illogical, and cruel."

Today, Buzin Law, P.C., spoke to a number of State Assemblymen and Senators in an effort to change this law.  To ensure that such injustices do not remain the law, contact your local legislators!

In one of the first appellate decisions of 2012, the Third Department allowed a plaintiff in a wrongful death action, which arose from medical malpractice, to pursue a claim for punitive damages where the plaintiff alleged abandonment and where the medical staff failed to take certain precautions before administering medication.  Marsh v. Arnot Ogden Medical Center, 2012 WL 87957 (3d Dep't).  The court acknowledged that certain medical facilities are not putting patient safety as their top priority and stated, "[a] medical facility's failure to provide appropriate safety precautions and training may constitute a basis for a punitive damages award if shown to constitute conscious disregard for patient safety."  (Citations omitted).  Id.

Hospitals that have chosen to prioritize patient safety have seen incidences of medical malpractice drop precipitously.  It is in both the patients' and their physicians' best interests to continue to emphasize patient safety in all medical facilities.