The focus on concussions in athletes stems from recent high-profile cases in college and professional sports. Class action suits against the NFL and personal injury cases against the NCAA and individual schools1 often reveal a culture in which coaches, trainers, or the administration itself discouraged players from reporting symptoms or returned injured athletes to the game.2 And the problem isn’t limited to the past.
Alumni athletes with claims of decades-old injuries continue to come forward. In 2019, the NCAA settled a $75 million class action lawsuit brought by former athletes who played at NCAA-member schools.3 The allegations in this case and others revolve around concussion protocols and the standard of care for medical monitoring. Left unaddressed, your school’s current culture could undermine concussion protocol reforms and create liability for decades to come.
Keeping players safe is the top priority, but so too is protecting your institution’s employees, financial resources, and reputation. A solid concussion strategy incorporates both.
Concussion is defined as a traumatic brain injury caused by an impact to the head.4 It can occur in just about any college-level sport. High impact sports, like football and soccer, come immediately to mind. But athletes and participants in individual sports like gymnastics, club, and intramural sports, and alumni participating in a weekend scrimmage, are also vulnerable to concussion injuries.
In the past several decades, scientific research has examined if a causal relationship exists between repeated blows to the head and life-long debilitating neurological injuries.5 While the work continues, standard of care guidelines have emerged that encourage coaches and athletic trainers to change how they evaluate, treat, and report head injuries. Standard of care is a legal term that means acting as a reasonable professional in that position or role would under the same circumstances and existing knowledge at that time.6
Individual and class action lawsuits generally focus on a few key areas:7 negligence by coaches or athletic trainers, lack of emergency medical equipment or personnel, and pressure to return players to active play. If litigation were to result from a student injury, your school may need to show that it acted according to the standard of care to either prevent concussions or care for the student.
Each school should develop and implement a concussion prevention and mitigation policy in accordance to its mission and resources. While elements of a well-crafted concussion policy may share similar elements to other schools, yours will be unique. State laws vary; a locally licensed attorney can help ensure you know and follow mandates and guidelines. Don’t let your policy gather dust on a shelf. Review and update it annually.
There are four main components that can help mitigate liability:
Policy. A thoughtful policy should encompass risk management for all sports, both on and off the playing field. It should include how to assess, respond, and monitor a possible brain injury, reporting and documenting processes, and criteria to return to play.
Concussions may affect cognitive functions; brain rest is an important component of recovery. Consider how your policy might address an excusable absence from the classroom or schoolwork deadlines.
Work with your school’s attorney to ensure you comply with concussion safety laws and the required standard of care. The CDC and athletic sanctioning bodies, like the NCAA and NAIA, offer guidance for developing concussion protocols. Professional member organizations, like those for athletic trainers, also offer guidance.
Education. Buy-in and execution of your policy needs to happen at every level of your institution. All stakeholders—administration, coaches, trainers, athletes, teaching staff, and parents—need to understand what’s in your concussion policy and how you’ll implement it.
Part of your concussion policy should include communication and training details for staff, administration, new hires, and parents/students. Consider adding procedures to administer refresher courses and education materials before the start of a semester or season.
Documentation. Accurate and complete documentation when responding to a possible concussion is a critical deciding factor in court cases. Sloppy, incomplete, or missing records that rely on a person’s memory cast doubt about your school’s concussion protocols. It’s not enough to say a player was evaluated for a concussion. Your records should include specifics all throughout the evaluation: from the moment the player is injured, through recovery, and the deciding factors for returning to play.
Document player and witness statements about the injury, tests and exercise specifics, medical records, and details of the recovery plan. Ensure that your documents are properly catalogued and stored for easy retrieval. Work with a local attorney to establish record retention policies that comply with your state’s statutes of limitations.
Insurance. The likelihood of a student suing a school increases when there is inadequate insurance to cover the injuries. Student health insurance, sports accident coverage, and catastrophic accident coverage may not cover long-term expenses related to a brain injury.
Health insurance may only cover expenses related to the initial injury. Sports accident insurance often has a high deductible and a time limit to file a claim. Time can eliminate individuals from receiving help with medical bills since a brain injury may not manifest for several years.
Liability claims trigger the institution’s commercial general liability policy. Some policies cover concussion injury during the policy period only, commonly referred to a claims-made policy. Other policies cover a claim years after an injury has occurred—this is known as an occurrence policy. Some insurance companies exclude concussion claims while others limit who is and isn’t covered, like trustees or board members. Look for territorial restrictions, too.
Colleges should consider which states allow/enforce liability waivers and participation agreements. Also consider if a waiver prohibits a student athlete from receiving the benefits of a sanctioning organization’s catastrophic policy.
Insurance companies generally state what the school’s duty is when first learning of an injury and subsequent steps. Not following procedures outlined in a policy may affect coverage, even if a claim has not yet been filed. An insurance company also may be unwilling to provide coverage if a school lacks a comprehensive concussion policy or repeatedly files concussion claims.
A concussion policy is ineffective if your culture works against it. Fight against a culture where student athletes fail to report symptoms out of fear. Everyone needs to be on board with and follow your institution’s concussion protocol policy. A well-followed safety program is critical to protecting the athletes, but it also protects the coaches, training staff, the administration, and your school from liability. All stakeholders need to feel safe in following protocols without fear of retribution.
Don’t overlook your facilities when considering issues of liability. Regular maintenance of facilities and equipment is an important component, as well as proper supervision. Check training rooms and fields for hazards, and ensure equipment is in good working order.
1 Russo, Ralph D. “Wave of concussion lawsuits to test NCAA’s liability.” AP News, 7 February 2019. https://apnews.com/article/4a4ed68e4c3a426abc4e34606ae4a399.
2 Weisel, Jeffrey, & Kingdollar, Charlie. “School Liability—Student Athlete Concussions in the U.S.” GenRe.com, April 2016, https://www.genre.com/knowledge/publications/iinapcconcus1603-en.html.
3 Russo, Wave.
4 “What Is a Concussion?” Centers for Disease Control and Prevention, https://www.cdc.gov/headsup/basics/concussion_whatis.html. Accessed 7 January 2021.
5 Pachman, Steven, & Lama, Adria. “Legal Aspects of Concussion: The Ever-Evolving Standard of Care.” Journal of Athletic Training, Vol 52, Number 3, March 2017. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5384817.
6 Pachman and Lama, Concussion.
7 Weisel and Kingdollar, School Liability.
Posted January 26, 2021
The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.
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