Can a Doctor Diagnose CTE in Living NHL Players?

On April 12, 2016, the National Hockey League requested that a Minnesota federal judge require a doctor to disclose his examination process, as it would be the first time a doctor would diagnose chronic traumatic encephalopathy (CTE) in a living patient. This argument stems from debate over class certification in the former NHL player’s class action lawsuit against the NHL.

The former players of the NHL took a leaf out of the National Football League’s playbook and filed independent lawsuits against the NHL for failing to prevent head trauma, for failing to warn players of risks, and for promoting violent play in the game. In August 2014, the individual cases were joined into a class action lawsuit against the league. Since this time, approximately 105 former NHL players have joined this class action.

The players hired Dr. Robert Cantu, a prominent name in CTE litigation and research, to conduct medical examinations. These players are potential named plaintiffs in the class action.  While the NHL has been pushing for independent medical examinations of the plaintiffs, they now dispute the reliability of Doctor Cantu’s findings. In an email sent on April 12 from the player’s attorney, Michael Cashman stated that “it is possible that Dr. Cantu will diagnose one or more of these men with a neurodegenerative disease such as CTE.” Never before has CTE been diagnosed in a living patient, and the NHL argues this would set a dangerous precedent and goes against what generally known to the medical community. The majority of the medical community believes that CTE can only be diagnosed in an autopsy; however, advances have been made in this avenue of medicine.

Progress and discovery has been moving slowly. In January 2016, Magistrate Judge Janie Mayeron partially granted a lift in confidentiality concerning documents and emails that had previously been marked as protected by the NHL. Since the commencement of the class action, Judge Nelson of the United States District Court is carefully considering each issue, particularly with regards certifying the class. In the past, Judge Nelson has commented about the importance of acknowledging the progress and development of science and medicine in this class action lawsuit, which seems particularly relevant with the possibility of an actual diagnosis of live patients.

The NHL claims Dr. Cantu’s diagnosis would affect class certification in this class action. At the very least, a diagnosis of CTE prior to an autopsy will affect all future litigation of this sort. A hearing is scheduled for April 19, 2016 to discuss the NHL’s concerns with Dr. Cantu’s potential diagnoses and medical examinations.

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