"Clay wants to go through this to make sure it doesn't happen not just to pros, but at every level," says Rush's attorney, Steve Shapiro.
The suit names neither the Colorado Crush, which is no longer in existence, nor the Arena Football League, which is attempting a comeback following a bankruptcy filing. Instead, the defendants are Dr. Saurabh Mangalik, a physician who served as the Crush's team doctor on an independent contractor basis, and HealthONE Clinic Services-Primary Care, Mangalik's employer.
In an interview with the New York Times, which broke the lawsuit story last week (but did not publish comments from Shapiro), Mangalik denied any wrongdoing when it came to his treatment of Rush. Here's that section of the Times piece:
Mangalik said his records indicated that he had repeatedly told Rush and team trainers that Rush should not play or practice until his symptoms, like headaches and dizziness, cleared. The modern standard of care for sport-related concussions is to forbid physical activity until all symptoms subside because sustaining another head injury too soon can cause far greater damage.
Rush's lawsuit claims that Mangalik treated him only for a headache and "failed to properly evaluate and observe" him before allowing him to play -- a charge that Mangalik disputed.
"I'm not sure why he felt he was allowed to go back," Mangalik said, adding that he had not been aware of any dispute over Rush's care until contacted by The New York Times. "I don't know if he told the team he had symptoms and they let him play anyway, or if he didn't have symptoms and now is saying that he did. I don't know that. All I know is what he told me and I told him."
In response, Shapiro offers the following information about Rush and his injuries:
"Clay was a kicker for the Colorado Crush," he notes. "He was the guy who kicked the winning field goal to win the Arena Bowl Championship in 2005. He played Division II football [at Missouri Western State University] and had four runs at the NFL -- went to four training camps. He didn't make it there, but he kicked for the AFL for years," beginning in 1999, with the Iowa Barnstormers, followed by stints with the New York Dragons, the Indiana Firebirds and, finally, the Crush. "He won the league's top kicker of the year award twice. He's good -- a hard-working guy."
Then, during an April 4, 2008 game against the Los Angeles Avengers, the complaint says Rush sustained a hit to the head that left him feeling dizzy and off-balance. Nonetheless, the document states, "the team's trainers used smelling salts on Plaintiff and allowed him to play the rest of the game."
Afterward, the suit says, Dr. Mangalik examined Rush and told him to rest and take Tylenol if necessary. But while post-concussive symptoms followed, the complaint asserts that Rush "was not properly evaluated and observed and was allowed to play in the team's game the following week," against the Cleveland Gladiators.
The game after that, on April 19 against the Kansas City Brigade in KC, Rush was again hit in the head -- and this time, he didn't return to the field. But the suit says a formal examination waited until he saw Mangalik a couple of days later. At that time, the complaint states, the doctor again prescribed rest and Tylenol.
During that week, Shapiro says, "his headaches got better, and they tell him, 'You're playing'" -- against the Chicago Rush on April 25. "He doesn't get hit in the head this time. All he does is exert himself. But from that point forward, his symptoms got horribly worse. His stats for the game were terrible, and then he goes home and tries to rest. But the next day, he's nauseous, he's vomiting. So he goes to the ER to get a cat scan -- and from that point on, his brain injuries haven't resolved themselves.
"He now has a permanent brain injury that we hope isn't going to prevent him from living a normal life, but we don't know," Shapiro continues. "During the off-season, he sold cars at Go Honda on 104th, and he was very good. But he's got a lot of problems. He's got central-nervous-system problems, headaches, vision problems, sleep problems. He's been treated for two years now, and the problems haven't gone away."
Why sue Mangalik and HealthONE as opposed to the Arena Football League, in lieu of the Crush?
"You can't sue the Crush because of work-comp laws," he explains. "If you have a work-comp claim, there's no way you can sue the employer at any time. And as far as we know, the team didn't have anything to do with this, because they were following the orders of the doctor -- and Clay's contract says, 'If the doctor says you can play, you can play.' They should have done examinations to see if he was neurologically intact, but they didn't. And Clay's a football player. He wants to play, but he was not feeling well, and there was no one telling him he shouldn't."
Rush's suit isn't the first of its kind. Running back Merril Hoge, now as ESPN commentator, settled a concussion-related suit after winning a $1.55 million jury verdict in 2000. In the meantime, efforts to enforce safety standards regarding concussions are being promoted by organizations such as the Sarah Jane Brain Project and the Brain Injury Association of Washington, which last year helped pass what's known as the Lystedt Law, named for Zachary Lystedt, a Washington-state teen who spent over a month in a coma following a football-related head injury.
However, Shapiro believes Rush's suit is the only current one involving damage incurred in professional sports. "We want to get more awareness of this issue for everyone," he says. "But we also want to show that this can still happen at the pro level."