Sports Concussion Lawsuits: When Is a School Liable for Negligence?

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Concussions are a risk for every athlete. Any sport that involves running and jumping, particularly when played at a high speed, carries the possibility that players will fall and hit their heads or will collide with a fixed object or another player. The risk of a brain injury is greater in contact sports like football and hockey, but every athletic participant takes the chance of experiencing a concussion.

While the risk of a concussion can never be entirely avoided, reasonable steps can be taken to minimize the possibility that a player will sustain a serious, long-term brain injury. When athletic programs administered by schools, colleges, and recreational leagues fail to take those steps, they may be liable for injuries that could have been avoided. Successful lawsuits against schools and athletic organizations have resulted in significant compensation for players who sustained brain injuries. This article discusses the grounds upon which sports concussion lawsuits are based.

Failure To Warn Players of Risks

Players often view "playing hurt" as a sign of toughness. They feel a responsibility to their teammates to return to play after experiencing a concussion. For years, coaches and teammates have encouraged that attitude.

Players who want to return to the field after a concussion generally fail to understand the risk they are taking. Medical experts agree that a player who receives a second concussion before an initial brain injury has healed is more likely to sustain permanent brain damage. Concussed players who are fully aware of that risk should be less eager to return to play. Teammates who adopt the traditional sports philosophy of "looking out for each other" are less likely to encourage another player to take that risk if they understand the potential consequences.

The failure to warn student athletes about the dangers of successive concussions may be an act of negligence that could subject educational institutions to liability. The NFL and its Players Association have, in fact, been sued on the theory that the league and the union withheld or concealed information about the risks of concussions from players. Meril Hoge, a former Chicago Bears fullback, won a lawsuit against his team physician for failing to warn him about the severity of his concussions. The same principle applies to athletic programs administered by colleges, high schools, and youth recreational leagues.

Years ago, courts tended to hold high school coaches to a relatively low standard of care on the theory that coaches should not be expected to have the same knowledge as doctors. Now that overwhelming evidence of the risk of successive concussions is readily available, schools have a clear duty to foresee and forestall the attitude that "toughness" requires a student athlete to play with a concussion.

Return To Play Without Proper Evaluation or Before Healing is Complete

While no sport is risk-free, the law is well established that coaches have a duty not to increase the risks that are inherent in the sport. When a coach knows or should reasonably suspect that a player has sustained a concussion, the coach increases the player's risk of experiencing a catastrophic brain injury if the coach returns the player to the game without having the player evaluated by a trained professional.

A former Portland State linebacker recently sued Portland State and other defendants for failing to recognize a concussion and for returning him to the game after he was injured. He later went to the hospital but his lawsuit alleges that Portland State cleared him to play in eight more games despite his failure to pass diagnostic tests. His continuing symptoms eventually forced him to withdraw from school.

As awareness of the need to withhold concussed athletes from games grows, so will lawsuits based on the improper evaluation of concussions. Lawsuits will also be based on the decision to return a player to a game who may have experienced a concussion and on the decision to clear a player to resume playing when the player's brain injury has not fully healed. Lawsuits may also be based on the delegation of those decisions to people other than neurologists or other medical professionals who have been trained to manage concussions.

Failure To Adopt Guidelines

A class-action lawsuit against the NCAA, alleging that it breached its duty to protect players when it ignored the growing problem of sports concussions, was settled when the NCAA agreed to implement new guidelines for the management of concussions by member schools. Some commentators have questioned whether those guidelines will be enforced or followed.

Negligence law imposes a duty on everyone to exercise reasonable care to avoid foreseeable harms. Reflecting a consensus of the "best practices" that should govern athletic programs, the NCAA guidelines may create a new definition of reasonable care that all schools (including secondary schools) should follow in the management of sports concussions. Future lawsuits may be based on the failure of schools to adopt or implement some version of those guidelines or on the failure of coaching staffs to follow them.

Concussion Management Laws

Beginning in 2009 with the Zackery Lystedt Law in Washington, state legislators have adopted laws that regulate the management of concussions in high school and youth sports programs. Often called "return to play" laws, the statutes generally require that concussed athletes not be returned to the game in which they sustained a concussion and that they not be allowed to return to play or practice without the approval of a health care professional. Some statutes contain additional requirements, including mandated educational programs and credentialing standards for professionals who make "return to play" decisions.

Although a violation of a "return to play" law might lead to civil liability, some of those statutes impose limitations on liability. In particular, they may shield medical professionals from liability when they volunteer to serve on the sidelines of a game without pay. Their acts of negligence are sometimes excused by state laws unless they committed gross negligence or engaged in willful misconduct.

Whether liability exists in an individual case and the legal theory under which liability might arise is often difficult to determine. An experienced personal injury lawyer is in the best position to decide whether a player who suffered a traumatic brain injury while playing a sport is in a position to recover compensation.

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