The 9th U.S. Circuit Court of Appeals has overturned an earlier ruling and will permit a swimmer’s lawsuit, alleging that USA Water Polo failed to protect her from serious head injuries, to continue.
In short, the panel of judges found that the lower court’s rationale that the defendant was shielded because concussions are an “inherent risk in water polo” was erroneous. While the initial concussion may be considered “an inherent risk,” subsequent concussions, which may have occurred if she was returned to the pool too soon, would not merit such protection.
By way of background, H.C. played water polo for one of 500 USA Water Polo-registered clubs and was participating in a tournament organized and managed by USA Water Polo. On the first day of the tournament, H.C., while playing the goalie position, was hit in the face by a shot, which led to a concussion. H.C’s coach, allegedly lacking any concussion management training, allowed H.C. to continue playing in that game and in subsequent games where she took additional hits to the head.
After the tournament, H.C. started to experience headaches, sleepiness and fatigue and was unable to attend school. Her condition worsened, and her symptoms included excessive sleeping, dizziness, inability to tolerate movement, extreme sensitivity to light, headaches, decreased appetite, nausea and the inability to do any school work. Doctors diagnosed her with post-concussion syndrome.
The complaint sought damages for gross negligence, alleging specifically that USA Water Polo failed to: (i) implement system-wide concussion and return-to-play guidelines for athletes who have sustained concussions; (ii) adequately educate and adopt rules requiring the education of coaches, staff and athletes about the symptoms and long-term consequences of concussions; and (iii) implement system-wide guidelines for screening and detecting head injuries. The complaint concluded that USA Water Polo had a duty to supervise, regulate, monitor and provide reasonable and appropriate rules to minimize the risk of injury to players, and that USA Water Polo breached that duty of care.
Plaintiff Alice Mayall, the mother of H.C., argued that USA Water Polo has the power to enact, enforce or modify rules “that would properly protect participants from concussions that are preventable, as well as properly protect participants who suffer concussions from returning to play until they have progressed through a widely accepted stepwise, graded exertional return-to-play protocol and are symptom free for at least 24 hours.”
She sought, on behalf of her daughter and similarly situated athletes, injunctive relief, the establishment of a medical monitoring program, compensatory damages, punitive damages, compensation for pain and suffering and attorneys’ fees.
After the district judge ruled for the defendant, the plaintiff appealed.
The 9th Circuit noted that USA Water Polo had a rule in place in 2011 for its national team, which required medical evaluation of any player who has suffered an apparent concussion or another serious head injury. The rule further required that the player not be allowed to return to the pool on the same day of the injury.
Thus, it reasoned, USA Water Polo ”increased the risk of secondary concussions to players who improperly returned to play.” Other mitigating factors included the fact that the defendant “was well aware of the severe risk of repeat concussions,” wrote the court and that USA Water Polo’s insurance company had reportedly been urging the organization to establish stronger protections.
“We are exceedingly pleased with the court’s opinion in this case and see this as a milestone victory in establishing a duty to protect athletes from concussions,” said Steve Berman, managing partner and co-founder of Hagens Berman, which represented the plaintiff. “In no uncertain terms, this is a ruling that could have life-changing impacts for those facing lifelong repercussions of traumatic brain injuries and concussions.”
Alice Mayall, as parent and guardian of minor H.C., on behalf of H.C. and all others similarly situated, v. USA Water Polo, INC.; 9th Cir.; No. 16-56389, 2018 U.S. App. LEXIS 33359; 11/28/18
