The National Hockey League says it would cost $13.5 million to produce the medical records for the 5,967 players who have played in the NHL since 1967 and suffered brain injuries.
The NHL says that the extraordinary cost, combined with former players' right to privacy, should be grounds to deny a request to order the league to turn medical records over to 60 former players who are suing the league. A group of 60 former NHL players including Joe Murphy, Bernie Nicholls and Gary Leeman charge that the NHL did not do enough to protect them from head injuries before it created a committee to study head trauma in 1997. Even after that, the players charge that the committee was a "white wash" and that its findings were not adequately shared with players.
The former NHL players filed the suit in November 2013 after a group of nearly 4,500 former NFL players reached a settlement with the NFL over similar concussion-related complaints.
The hockey lawsuit has not been certified as a class action. If a judge does grant the case class-action status, which some lawyers say is uncertain, the case could involve several thousand former NHL players, unless they opt out of the case.
Two weeks ago, a judge ordered NHL Commissioner Gary Bettman to offer testimony about the case. Bettman is expected to testify in July.
At about the same time the former players went to court asking that Bettman be ordered to testify immediately, they also asked that the NHL be forced to turn over any records – whether they be emails, reports, telegrams or phonographs – that relate to head trauma records since 1967.
In court filings obtained by TSN, the NHL says its clubs offered to compromise and produce the complete medical information for any current or former NHL player who signs an authorization for that disclosure. The former players rejected that compromise, the NHL says.
The league says The Americans with Disabilities Act, state privacy laws and contractual provisions prevent the court from ordering teams to disclose non-party medical information without permission. "Under the ADA, employment-related medical examinations are treated as confidential medical records," the NHL wrote in court filings.
"States recognize two basic justifications for medical record privacy," the filings say. "First, individuals have a "right to be let alone" - that is, to conduct their lives free of unwarranted intrusions by strangers into the intimate details of their medical histories. Second, medical privacy laws promote the goal of ensuring open and honest discussions between patients and their medical providers."
The NHL said it even if a judge ordered the league to produce all of the relevant documents, compliance would be extremely difficult and expensive.
Franchises change locations. NHL players change teams. Players are injured and visit doctors while playing games on the road. Players visit specialists located in other U.S. states. Players retire and move to other states or countries.
The NHL also noted, again, that the request was tantamount to a fishing expedition.
The former players, the NHL said, "do not get to selectively pick and choose from the medical histories of absent class members to prove the merits of their own individual causation claims…The privacy intrusion is enormous."
The NHL also explained how it maintains medical records for current and former players.
In 2006, teams began using the Athlete Health Management System, also known as AHMS, a league-wide electronic database that contains medical information about National Hockey League players.
There are at least 1,049,958 pages of medical notes and documents contained on the AHMS, and likely far more, the NHL said. Prior to 2006, teams primarily maintained paper medical files.
So in addition to the million-plus pages stored on the AHMS, clubs would need to review the paper medical files dating back 40 seasons.
When the teams agreed to produce the medical documents related to the six class representatives in the lawsuit - Dan LaCouture, Mike Peluso, Gary Leeman, Bernie Nicholls, Dave Christian and Reed Larson -- it took teams 18 hours and 33 minutes to review and redact the medical files at a cost of $4,347.50.
That amounts to $2.47 per page. Since the AHMS contains 1,049,958 pages, that means it would cost teams at least $2,593,396 to review and redact just the medical information contained on the AHMS, the NHL says.
Then there's the cost to review and redact documents for the 40 seasons prior to the AHMS's introduction.
"The cost to comply with Plaintiffs' subpoenas may well exceed $13,567.00 and 57,762 personnel hours personnel hours to complete, which does not include the gathering, processing and production costs, or attorney review time," the NHL's lawyers wrote. "Plaintiffs have not offered to pay any of these massive expenses."