By Patricia K. Buchanan, J.D., M.B.A.
and Donald F. Austin, M.A.T., J.D.
Patterson Buchanan Fobes Leitch & Kalzer, Inc. P.S.
In 2002, an athlete might have experienced a mild concussion in a game, and under National Federation of High School Activities Associations (NFHS) return-to-play guidelines, could return to the game 15 minutes later, so long as the player had been free of symptoms for 15 minutes. That was standard of care then but is now recognized by doctors trained in concussions to be a dangerous practice. While NFHS changed its guidelines in 2005, many schools undoubtedly have not. Some schools trained coaches regarding sports concussions, but the quality of training varied and not all coaches were trained. Coaches often did what seemed to make sense individually at the time, a dangerous thing to do in a medical emergency. Since 2005, concussion return-to-play guidelines have changed considerably. In order to protect athletes from preventable injuries, and protect schools from litigation, schools need to systematically address sports concussion prevention on a state and district level. This article offers some suggestions on how to do that based on Washington State’s experience.
To begin with, Sports Risk Management experts[1] inform us that athletic injuries are caused by one of, or a combination of, six variables. Schools have some control over five of these variables. Changes in laws[2] and understanding of sports concussions, as well as the public’s increasing awareness of the dangers of such concussions, will likely generate more litigation against schools. Skilled attorneys representing injured athletes will use the five variables over which schools have control to find a way of blaming the school for a particular injury. Likewise, schools that take reasonable precautions to prevent sports injuries can demonstrate that they have systematically taken measures to prevent such injuries, making it more likely that jurors will conclude that the injury was not the schools’ fault.
Causes of Sports Injuries
Sports injuries, including concussions and head injuries, are generally caused by one of, or a combination of, the following variables:
Inherent risks of the sport over which no one has control.
The coaches’ training.
Supervision of athletes.
Safety of equipment.
Safety of facilities.
Proper injury management after an accident occurs.
If the school has sufficient evidence that it did its job in each of these areas, the school can show the relatively safe context in which the injury occurred, allowing jurors to conclude that the injury was a natural risk, inherent in the sport. If the school is lacking in any one of these areas, that provides an opportunity for a plaintiff’s attorney to blame the school, and to allow jurors to judge the case with 20-20 hindsight, tinged with sympathy for the injured athlete and disgust that the school did not do what it should have done to possibly prevent the injury.
Concussion Guidelines—Don’t Try This At Home!
In deciding what to do about sports concussion protocol (a.k.a., concussion guidelines[3]), schools should recognize three things:
Schools must have written sports concussion guidelines and train coaches, athletes, and parents on what to look for regarding sports concussions. This training should be accompanied by authoritative handouts prepared by Sports Medicine doctors who are trained and experienced in dealing with sports concussions and head injuries.
CAVEAT: Schools should NOT design head injury and concussion protocols. Only doctors trained in sports concussions should design such protocols. Be aware that not all doctors are trained in concussions.
Instead, schools should not rely on Red Cross, Center for Disease Control, or other such concussion guidelines unless doctors trained in sports concussions determine that such guidelines are currently valid.
Washington State has pioneered a systematic approach to preventing sports concussions based on the cooperation of its state athletic association and state school board association. First, each Spring the Washington Interscholastic Athletic Association (WIAA) has a meeting of its Sports Medicine Committee, comprised of doctors trained in various areas of sports injuries including head injuries. They review national concussion guidelines from the NFHS and the medical literature. Based on this review, WIAA publishes on its website sports concussion and head injury guidelines for schools to adopt for the following year. WIAA also provides handouts that can be given to coaches, athletes and parents in training them what to look for. Second, the Washington State School Directors Association (WSSDA) has propounded a model school board policy for schools to adopt concerning sports head injury and concussion prevention. A key aspect of this model policy, Board Policy 3422[4], is that each Spring the athletic director at individual school districts must look on-line on the WIAA website to determine what the current concussion and head injury guidelines are from WIAA. With WSSDA and WIAA working together, Washington is establishing a uniform standard of care for addressing sports concussions.
The Six Variables
Schools need to exert control over the five variables in causing sports injuries that they may control if they want the public and jurors to conclude that they have done their jobs and any individual injuries were the result of inherent risks in a particular sport.
First Variable: Athletic injuries happen no matter what.
Spectators at athletic events, and jurors, understand that bodies in motion collide. Body parts are twisted and wrenched. And these things are no one’s fault. They are inherent risks athletes assume by competing in sports.
However, when a serious injury occurs, the inherent risk of the sport is often ignored and attorneys representing injured athletes look to the other variables below to find a way to blame the school for the injury. Schools which can show that they did everything reasonable to prevent injuries are much more likely to survive litigation with jurors concluding that the injury at hand was the result of the first variable, that sports injuries are bound to happen as a natural risk of the sport.
The key to sports injury prevention, as well as defending sports injury cases, is a systematic and documented approach to prevention, showing how the school addressed each variable for sports injuries that the school had some control over. This systematic approach should be documented each year with parents signing permission slips for their child to participate in specific sports, while at the same time receiving written concussion information that would help the parent be aware of what to look for with concussions.
Second Variable: Coaches Training.
Many school districts require that their coaches receive training in CPR and First Aid and think that is enough. With head injuries it is not. Even Red Cross training has not addressed what to look for regarding sports concussions. State athletic organizations should offer up-to-date head injury and concussion information on-line as well as at coaches clinics and conferences. School districts should require all of their coaches to undergo such training and update their training every few years. Verification of training should be documented in each individual coach’s personnel file.
Third Variable: Supervision of Athletes.
Obviously, athletes should not supervise themselves, particularly in sports involving contact, hurling objects, or other obvious risks. Depending on the neighborhood, etc., athletes might be able to run without the visual supervision of a coach. But in other situations, a coach should be present when athletes are in practice and nearby when athletes are in the locker room or showers. Practice plans are excellent ways of documenting organized supervision of athletes.
Fourth Variable: Safe Equipment.
Coaches should have their athletes and managers inspect sports equipment at the beginning of a season and remove dangerous equipment from play. With football helmets, athletic directors should maintain documentation of purchase of helmets and helmet refitting and maintenance by outside organizations.
Fifth Variable: Safe Facilities.
Schools are not always able to control whether their facilities are completely safe. But if there is a danger in an athletic facility that cannot be avoided, such as a cement pillar in the center of the wrestling room, a wall too close behind the basketball backboard, or a concrete barrier near the end zone, schools can control safety around whatever poses a risk. Such risks may not be ignored. They can be identified in routine safety inspections of schools conducted by school district risk management personnel. They should be discussed in coaches meetings and players should also be educated on the risks and how the risk will be ameliorated.
Sixth Variable: Proper Injury Management.
Coaches and athletic directors should be current with Red Cross First Aid and CPR training. They should also have up-to-date head injury and concussion training. These trainings establish the standard of care for responding to an injury situation. If the injury management deviates from the training, there can be both medical and legal problems. It is therefore paramount that coaches and athletic directors be trained and that their training be routinely updated.
Conclusion
When a head injury leads to litigation, the plaintiff’s attorney will try to prove liability by making the case all about how the injury happened, and if only the school district had done one or two things differently (see variables two through six above), the injury would not have happened. Where the injury is serious, this may work because of the natural sympathy of jurors for a young person whose life may have been drastically altered.
On the other hand, when such litigation occurs, the school needs to be able to demonstrate the safe context within which the accident occurred. With school district witnesses, and often a Sports Risk Management expert witness, the school needs to show that coaches were trained, athletes were supervised, equipment and facilities were safe, and that the standard of care was followed with how coaches responded to the injury. With a series of witnesses who can demonstrate that the school people knew what they were doing and did what would reasonably be expected of them, it is much more likely that a jury would be able to conclude that the injury was the result of an inherent risk in the sport.
About the Authors. Patricia K. Buchanan, J.D., M.B.A., is a founding principal of the 25-attorney law firm Patterson Buchanan Fobes Leitch & Kalzer, Inc. P.S., with offices in Seattle, WA and Portland, OR. She defends both public entities and private clients in complex cases involving personal injury, discrimination, and employment practices liability. Donald F. Austin, M.A.T., J.D., a principal with the firm, practices primarily in the areas of school law and public entity defense. He was general counsel for California’s Ventura Unified School District for eight years, and 2004 president of the California Council of School Attorneys. They can be reached at pkb@pattersonbuchanan.com and dfa@pattersonbuchanan.com, respectively.
[1] The authors are deeply indebted to the man who pioneered the field of Sports Risk Management beginning in the 1960s, Herb Appenzeller, Ph.D. The Sports Risk Management aspects of this article are based on discussions with Dr. Appenzeller as well as his publications. See, e.g., Herb Appenzeller, Ph.D., ed., Risk Management in Sport: Issues and Strategies, (Carolina Academic Press, 2nd ed. 2005) and Herb Appenzeller and Guy Lewis, Successful Sport Management (Carolina Academic Press 2nd ed. 2000).
[2] I.e., Washington’s Zachery Lystedt Law, RCW 28A.600.190.
[3] These guidelines are also often referred to as “return-to-play” protocol. They determine when a player may be returned to play after experiencing a head injury or concussion.
[4] This policy was adopted by both Kelso School District (BP 3422 and 3422P) and Puyallup School District (BP 3422 and 3422R) and can be found on their websites.
