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Sports-Related Concussions: A Q&A for Public Entities

University of Fraser Valley via Flickr

University of Fraser Valley via Flickr

The amount of information on sports concussions is vast and increasing every day. Medical studies, legislation, rule changes, new or improved equipment and court decisions contribute to a fast-changing environment. Park and Recreation Districts and other Special Districts field sports teams. They organize leagues. They employ coaches, trainers and referees. They provide the playing fields, courts and other resources for millions of this country’s people to participate in sports and other physical activity.

Concussions happen in virtually all sports and at all levels of play. Both male and female athletes suffer concussions. Younger athletes and female athletes are particularly susceptible. 1 The concussion problem is not limited to traditional team sports. Cheerleading, gymnastics, biking and playground activities are all leading sources of concussions.

Question: Can an athlete suffer a brain injury without a concussion?

Answer: Emerging scientific evidence suggests that a concussion is not a necessary predicate for brain damage to occur. Athletes may suffer long-term brain damage from blows to the head that do not result in concussions.2

Question: How widespread is the problem of sports-related concussions?

Answer: The American Academy of Neurology estimates the number of concussions from sports and recreation at 1.6 million-to 3.8 million. 3 The Center for Disease Control and Prevention (CDC) concluded that from 2001 to 2009 annual emergency room visits for sports and recreation related concussions increased by 62%, from 153,375 to 248,418.4 Bicycling, football, playground activities, basketball and soccer were the top sports and recreation activities giving rise to concussions.

Question: What are some steps governments are taking to protect student athletes from concussions?

Answer: 47 states and the District of Columbia have passed laws governing concussions and student athletes.5 These laws are modeled after a law passed in Washington following a traumatic brain injury suffered by Zackery Lystedt in a middle school football game. The Lystedt Law has three key provisions:

  1. Training and education for coaches, athletes and parents;
  2. Mandating immediate removal from play of any athlete suspected of sustaining a concussion; and
  3. Prohibiting return to play unless and until the athlete receives clearance from a medical professional.6

Question: What are some steps that sports leagues/associations are taking to deal with concussions?

Answer: A number of sports leagues and associations have implemented rules and procedures to prevent and identify concussions. For example, the National Federation of State High School Associations (NFHS) has published its own guidelines on concussion management.7

The NFHS recommends a “Heads Up” 4-Step Action Plan for a player suspected of a concussion:

  1. Remove the athlete from play;
  2. Have the athlete evaluated by a health care professional
  3. Inform the athlete’s parents about the suspected concussion; and
  4. Prohibit play until the athlete is cleared by a healthcare professional.

Question: What legal theories do plaintiffs rely on in support of concussion claims?

Answer: Negligence is the most common legal basis for liability of a public entity or its employees arising out of a sports-related concussion. Negligence theories include:

  1. The defendant has no concussion protocol or an inadequate protocol;
  2. The defendant did not follow its concussion protocol;
  3. The defendant provided inadequate safety equipment;
  4. Lack of informed consent, alleging, for example, that the risk of concussions was not adequately disclosed, or that the player, and the player’s parents were not informed that the school does not provide the best equipment to prevent concussions;
  5. Failure to inform parents or other care providers of the extent of an injury or its symptoms;
  6. Failure of referees and coaches to maintain control of the game;
  7. Failure to refer the injured student for medical care in a timely manner; and
  8. Negligent training or supervision of coaches, trainers or referees.

Question: What are some of the legal defenses available for concussion claims?

Answer: Focusing on negligence claims, defenses would include those generally available in most tort claims, including assumption of the risk, contributory or comparative fault and lack of causation. In addition, state or federal immunity defenses may be available to certain public entity defendants and their employees and officials. Certain states also have tort caps that might be available to limit the damages recoverable for certain claims against certain defendants.

The risk of concussion is one of the many new areas of liability exposure that must be managed by parks and recreation and other special districts. From a liability standpoint, even if just a fraction of sports-related concussions result in a lawsuit, the numbers are large and deserve serious attention.

Appropriate risk management is especially challenging in a changing environment. Any effective risk management program therefore has to be revised and updated in light of legal and scientific developments. The following are some steps that park and recreation districts and other special districts should consider in order to minimize their exposure to concussion claims:

  1. Know and follow your state’s laws on concussions;
  2. Be aware of and follow the required or recommended procedures of any league, association or governing sports body in which you participate or are a member;
  3. Pay as much attention to the concussion risk for female athletes as for male athletes;
  4. Train all coaches, trainers, referees, and other medical staff in concussion awareness.
  5. Make sure that all participants (and their parents or guardians, in case of minors) read and sign liability waivers that fully disclose the risk of concussions;
  6. Maintain all equipment and facilities in order to minimize the risk of concussions;
  7. Consider conducting an inventory of activities with which you have any role or responsibility that could lead to concussion claims; and
  8. Make sure that you understand how your Liability insurance coverage will respond in the event of a concussion claim.

Under the Colorado Special Districts Property and Liability Pool, Liability coverage is extended to members under the Public Entity Liability Coverage Document. Our coverage protects the member district against liability for claims, actions or suits, occurrences or wrongful act(s) wherein the district is found to be legally liable. However, under the Pool’s voluntary Medical Payments coverage section of the policy it states, the Pool will NOT pay any medical expenses to a person injured while practicing, instructing, participating or taking part in any physical exercise, games, sports, or athletic contests.

Public entities and public employees are governed by the terms of the Colorado Governmental Immunity Act. Generally a public entity or public employee is immune from liability in all claims for injury which lie in tort or could lie in tort except when specifically waived. Under the Act, there are six specifically denominated exceptions to waiver. The courts may be asked to determine if a claim would fall within one of the exceptions to sovereign immunity.

This information is intended to provide background information to our clients, as well as to our professional staff. The information is time sensitive and may need to be revised and updated periodically. It is not intended to be legal advice. You should consult with your own legal counsel before relying on it. Originally published at this link.


 

1. [Kimberly G. Harmon, et al., “American Medical Society for Sports Medicine Position Statement: Concussion in Sport,” British Journal of Sports Medicine, October 30, 2012, at 17-18, http://bjsm.bmj.com/content/47/1/15. long]

2. [Nicola Marchi, et al. “A New Way to Care for Young Brains,” The New York Times, May 5, 2013, http://www.nytimes.com/2013/05/06/sports/concussion-fears-lead-to-growth-in-specialized-clinics-for-young-athletes.html]

3. [American Academy of Neurology, Summary of Evidence-based Guideline for Patients and their Families, Concussion During Sports Activities, 2013, http://www.aan.com/globals/axon/assets/10721.pdf]

4. [Despite this increase in concussions, the American Medical Society for Sports Medicine in commenting on the CDC study notes that there has been no corresponding increase in catastrophic brain injuries. Kimberly G. Harmon, et al, “American Medical Society for Sports Medicine Position Statement: Concussion in Sports,” British Journal of Sports Medicine, October 30, 2012, at 17, http://bjsm.bjm.com/content/47/1/15.long]

5. [Joe Frollo, “See Where Your State Stands on Concussion Law,” USA Football, April 21, 2013, http://usafootball.com/node/4380/coach]

6. [The Zackery Lystedt Law,RCW 28A.600.190, http://apps.leg.wa.gov/rcw/default.aspx?cite=28A.600.190]

7. [See NFHS Suggested Guidelines for Management of Concussion in Sport, http://www.nfhs.org/]

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