By Ms. Leah Njane; Licensed Attorney
Sports Related Concussions (SRC) present a substantial public health burden given the number of student-athletes that participate in contact sports.
- According to CDC estimates, 1.6-3.8 (million) sports and recreation related concussions occur each year in the U.S.
- 10% of all contact sport athletes sustain concussions yearly.
- Brain injuries cause more deaths than any other sports injury. In football, brain injuries account for 65% to 95% of all fatalities. Football injuries associated with the brain occur at the rate of one in every 5.5 games. In any given season, 10% of all college players and 20% of all high school players sustain brain injuries.”
Every significant head impact should be assessed for potential concussion and the student cared for appropriately
Athletes who fail to report symptoms of a suspected concussion and continue play are at risk of potentially catastrophic neurologic consequences if another impact is sustained during this vulnerable period. Understanding why athletes do or do not report their symptoms is critical for developing effective strategies for risk reduction. Psycho-social theories and frameworks that explicitly incorporate context, as a source of expectations about the outcomes of reporting and as a source of behavioral reinforcement, are useful in framing this problem. These findings underscore the importance of designing interventions that address the system in which athletes make decisions about concussion reporting, including athletes’ parents, rather than focusing solely on modifying the individual’s reporting cognition.
Coaches and Other School Faculty Can be Liable
Introducing new measures when addressing concussions and their effects has been a matter of concern to the general-public and the courts in the US. For instance, MANN v PALMERTON AREA SCHOOL DISTRICT points out this fact by stating that “(A) coach may be held liable where the coach requires a player, showing signs of a concussion, to continue to be exposed to violent hits “
Moreover, according to EdWeek “Coaches may be liable when they expose student-athletes to further harm by having them to continue play after a suspected concussion.” The above ruling hinges on the definition of “suspected concussion.” Any significant head impact can be a “suspected concussion” unless further evaluation is made to eliminate concussion as a possibility. This further evaluation must be accomplished according to acceptable practice. National Athletic Trainer Association (NATA) and Concussion in Sports Group (CISG) have guidelines that can be used to screen an athlete for “suspected concussion.” http://blogs.edweek.org/edweek/school_law/2017/09/liability_for_student_concussi.html
One of the NATA sideline concussion guidelines speak in the following manner; “When the rapid assessment of concussion is necessary (e.g., during competition), a brief concussion-evaluation tool (e.g., Standardized Assessment of Concussion [SAC) should be used in conjunction with a motor-control evaluation and symptom assessment to support the physical and neurologic clinical evaluation.”(Journal of Athletic Training 2014;49(2):245–265 doi: 10.4085/1062-6050-49.1.07 by the National Athletic Trainers’ Association, Inc. www.natajournals.org)
CISG Guidelines state that; “At present, there is no perfect diagnostic test or marker that clinicians can rely on for an immediate diagnosis of SRC in the sporting environment. Sideline evaluation of cognitive function is an essential component in the assessment of this injury. A key concept in sideline assessment is the rapid screening for a suspected SRC, rather than the definitive diagnosis of head injury. The suspected diagnosis of SRC can include one or more of the following clinical domains:
a. Symptoms: somatic (e.g., headache), cognitive (e.g., feeling like in a fog) and/or emotional symptoms (e.g., lability)
b. Physical signs (e.g., loss of consciousness, amnesia, neurological deficit)
c. Balance impairment (e.g., gait unsteadiness)
d. Behavioral changes (e.g., irritability)
e. Cognitive impairment (e.g., slowed reaction times)
f. Sleep/wake disturbance (e.g., somnolence, drowsiness)” ( McCrory P, Meeuwisse W, Dvořák J, et al. Br J Sports Med 2017;51:838–847.)
When these guidelines are used properly to assess for a potential concussion, a “suspected concussion” can either:
- Remain a “suspected concussion” in which the athlete should stop play or
- Be assessed as a non-concussion and allow the athlete to continue play
Depending on the seriousness of the “suspected concussion” the immediacy of treatment is variable. However, in all cases of “suspected concussion” a licensed medical provider should reevaluate the player before returning to play.
Players may also be held responsible for injuries they sustain or impart to other players.
Apparently, responsibility depends on the age of the player. The level of supervision required for a team of seven-year-olds is significantly different from what is required for a team of varsity athletes. In Beckett v. Clinton Prairie School Corp. (Ind. 1987), an 18-year-old baseball player was injured when he collided head-on with another player as they practiced a fly ball drill. The court said the appropriate standard is “whether a defendant exercised his duty with the level of care of an ordinarily prudent person under the same or similar circumstances.” https://law.justia.com/cases/indiana/supreme-court/1987/12s04-8702-cv-268-2.html. The court recognized that this responsibility would vary depending on the age of the players, but in this instance found that the injured player (the plaintiff) could understand the risk of colliding with another player while chasing the fly ball. Since the coach had warned the players about the dangers of such a collision, the court found that the plaintiff had assumed the risk of injury in this case.
More Concussion Litigation Examples
Other examples of possible liability include a football coach who teaches improper tackling techniques that could cause injury to either player. A coach who knows that a player has sustained a concussion and still allows the athlete to go back into the game and play while injured. A cheerleading coach who enables dangerous routines to be practiced without appropriate spotters, safety or training methods, and equipment.
The court in Mann v. Palmerton Area School District http://www2.ca3.uscourts.gov/opinarch/162821p.pdf recently upheld the decision of the coaches’ liability in concussions appearing in student-athletes in US High Schools. The athlete received a significant head impact and was not assessed but should have been. The judgment was the defendant was “culpable under a state-created danger theory of liability” but that it was not established in 2011, the time of the incident. So the ruling was for the defendant. If the same incident occurred today, the judgment would be for the plaintiff.
An athlete’s right in Pennsylvania is:
“—to be free from deliberate exposure to a traumatic brain injury after exhibiting signs of a concussion in the context of a violent contact sport—(but) was not established in 2011.”
All 50 US states have similar laws today. The new laws go a long way in ensuring that most of those who affected by head trauma find recourse and that there is a legal preventive mechanism against further brain injury unlike in the past where the team’s success was foremost.
In continue-to-play cases, student-athletes usually allege the coach or athletic trainer negligently allowed the athlete to return to a game or practice after suffering an injury. Courts must determine what standard of care applies to the person clearing the athlete to play. The application, therefore, claims that if there has been a suspected concussion, then the athlete should in no way be allowed to play.
Recently, the Supreme Court of Nebraska in Cerny v Cedar Bluffs Junior/Senior Public School (Cerny I) http://caselaw.findlaw.com/ne-supreme-court/1061436.html defined the standard of care applicable to football coaches who allowed a player to return to play and practice after sustaining a concussion. During the subsequent practice session, the player suffered a closed head injury with second concussion syndrome causing a permanent brain injury. The court held the standard of care “is that of the reasonably prudent person holding a Nebraska teaching certificate with a coaching endorsement.” The court further held that the finder of fact (a jury or the judge in a bench trial) had to determine what conduct was required by that standard under the circumstances of allowing a player to return to play. This determination could be aided by expert testimony from the parties.
The court (in Cerny I) returned the case to the trial court for trial. The coaches and school were found not to be liable. The player appealed a second time to the Supreme Court of Nebraska (Cerny II) http://caselaw.findlaw.com/ne-supreme-court/1061436.html. The court affirmed the lower court ruling, which found that in the event a player has sustained a head injury, the conduct required of a reasonably prudent person holding a Nebraska teaching certificate with a coaching endorsement during the relevant time period was as follows:
- To be familiar with features of concussion
- To evaluate player who appeared to have suffered head injury for symptoms of concussion
- To repeat evaluation at intervals before player would be permitted to re-enter game
- To determine, based on assessment, seriousness of injury and whether it was appropriate to let the player reenter the game or to remove the player from all contact pending medical examination.
Coaches Involvement in Concussion Assessments
Professional sports and to a lesser degree collegiate competition, where team physicians are uniformly on the sidelines, coaches are not involved in a concussion “medical” decision or diagnosis.
Even in High school sports, coaches do not make medical decisions. However, coaches and other non-medical faculty members may be involved in the screening process after a significant head impact. The screening process determines if the athlete may continue-to-play or restricted-from-play. School faculty can create legal issues when they allow the student to continue-to-play after significant head impact or body blow occurs and:
- There is no concussion assessment or
- There is no documentation of the concussion assessments or
- The concussion assessment uses an unknown or unacceptable protocol (i.e. narrow set of tests)
Stricter interpretations will be made especially in light of the 5th International Conference on Concussion In Sport held in Berlin, October 2016.
“Standard of Care” for Sports Concussion
The consensus statement from the CISG states that “(The Consensus Statement) is not intended as a clinical practice guideline or legal standard of care, and should not be interpreted as such. This document is only a guide.” However, states including NY State are using the consensus statement to further define standard of care for concussions in high school sports as evidenced by the recent conference.
The Grand Rounds Program “Heads Up, New York”, held Nov, 15, 2017 in Albany. It was intended to inform clinicians about mild traumatic brain injury in children and young adults and discuss the new Berlin Guidelines, the latest diagnosis and treatment evidence-based practices. It is likely that the guidelines given in the consensus document as well as the NATA guidelines will be adopted in some form as a standard of care and current adoption would be prudent by any school.
In Yatsko v Berezwick
http://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20071204_0001268.MPA.htm/qx, plaintiff was a starting player on her high school basketball team. She filed a civil rights claim against her coaches and school district based on their request of her to play in a basketball game after being struck in the head during a game. The plaintiff alleged that immediately after being injured, she told the coaches she was hurt, and the next day informed her coaches that she had suffered a concussion. She alleged that the coaches told her she was the team’s tallest player and needed to play in that night’s game. Plaintiff claimed they observed her shaking and having difficulty participating during warm-ups but still played her in the game. The plaintiff’s mother took her to the hospital after the second game. Plaintiff alleged that the delay in receiving medical treatment caused exacerbation of her neurological condition.
Plaintiff alleged that her coaches and school district violated her substantive and procedural due process rights under 42 USC §1983. In dismissing plaintiff’s complaint, the federal district judge in the Middle District of Pennsylvania held that plaintiff could not meet her burden of proof of showing her constitutional rights were violated under the circumstances. The court held plaintiff had to show her coach’s actions “must be so ill-conceived or malicious that ‘it shocks the conscience.” The court reviewed the allegations in the student’s complaint and held that she could not meet this burden.
In Zemke v Arreola
https://www.fearnotlaw.com/wsnkb/articles/zemke_v_arreola-2546.html, 16-year-old Nicholas Zemke sustained a severe and debilitating head injury while playing varsity football at his high school. During a game, he suffered a dislocated finger, which was treated by the athletic trainer and team physician. The coach asked the team physician whether the player was “done for the day” and was advised that they could tape it up and that he would be fine and ready to go. After that the coach asked the player if he was ready to go; the player responded that his finger was fine, but that “I’m not ready to go in now.” The coach responded, “Okay, when you are ready to go in, come back and let me know.” He soon resumed play and collapsed during a time-out, having suffered a right subdural hematoma. The player sued the coach and school district, presenting an affidavit from a neurologist that the player’s brain injury was caused by second impact syndrome.
Of importance, before resuming play, the injured player apparently reported symptoms consistent with a head injury to other players (that he suffered a collision to his head, had blacked out and had a headache) but never reported these symptoms to the athletic trainer, team physician, or coaches. The argument made by the injured player on appeal was that his statement that he was not prepared to re-enter the game should have triggered an inquiry into why he chose to remain on the sidelines after his finger was treated and taped. The appellate court rejected this argument, noting that:
“here, sadly, Zemke [injured player] did not report to his coaches or medical staff the critical facts about his injury—that he had suffered a collision to his head, that he had blacked out, and that he had a headache—that might have alerted them to seek medical attention for head trauma and could have created a duty to prevent further head injury.”
Minimize Liability and Increase Safety
These cases should provoke discussion among school superintendents, coaches, athletic trainers, and school physicians about minimizing legal liability as well as safety for the students in these circumstances. Recognition needs to be given to the necessity of clear communication and proper documentation. Issues that arise frequently are whether the risk of injury was inherent to any particular sport and whether the athlete assumed the risk of injury by participation.
If a coach, athletic trainer, or school physician acts in a way that increases risks inherent in playing a particular sport, their actions could serve as a basis for potential liability. The insulation for potential liability will stem from a few areas:
- The concussion assessment methodology is adequate based on standards at the time
- Documentation showing what was done and when it was done
- Documentation must be available and stored securely keeping it from being altered after the fact.
Looking ahead, we expect to not only see an increase in the frequency of sports-related concussion claims but also in the number of personal injury claims, auto claims, and workers’ compensation claims arising from concussions and brain injuries. Whether this will ultimately mark the end of some youth sports–as we know it–will continue to be debated. However, this is not a time to fear or stop playing sports but rather to prepare for better concussion management better legal protection for the non-medical school faculty.
Copyright 2017 Total Concussion Management LLC
About the Author: Leah Njane is a former trial attorney who also served as the principal appellate lawyer for a law firm preparing and arguing briefs for cases on appeal. As an attorney, Leah drafted numerous motions, trial and arbitration briefs, and business contracts. For over five years, she provided content for legal blogs, legal informational websites, manuals, and for law offices seeking new or revised content for their online sites. Leah delivers re-writes and original content on topics including entertainment and trademark law, employment issues, personal injury, bankruptcy, family law, and criminal.