The 9th U.S. Circuit Court of Appeals has affirmed a lower court’s ruling that high school employees acted appropriately when they allowed a high school football player, who had suffered a head injury in June 2011, to participate in football in fall 2011, leading to a devastating head injury.
In so ruling, the appeals court cited the fact that the player did not inform his coaches of his head injury and, thus, they were not put on notice “of the need to obtain medical clearance for him prior to his return to play.”
The student-athlete in the case was Dwight Ingram (D.I.). He was born in 1995 at Fort Leonard Wood, Mo. D.I. moved several times before transferring to Chief Leschi High School (CLHS), a Bureau of Indian Nation School in Puyallup, Wash.
D.I. played basketball and football during his sophomore year from September 2010 until June 2011. He completed both seasons without suffering any injuries. In June 2011, D.I. participated in spring football at the school under the direction of Head Coach Sauni Savini and Assistant Head Coach Kirk Willis.
CLHS is a member of the Washington Interscholastic Activities Association (WIAA).
The court noted that the CLHS Handbook/Code of Conduct (Handbook) applies aspects of RCW 28A.600.190 (commonly referred to as the “Zackery Lystedt” law) to its athletic teams: (1) it requires that each student athlete sign the Lystedt Law Form and (2) it requires that “A student athlete who is suspected of sustaining a concussion or head injury in a practice or game shall be removed from competition at that time. A student athlete who has been removed from play may not return to play until the athlete is evaluated by a licensed healthcare provider trained in the evaluation and management of concussion and receives written clearance to return to play from that health care provider. No athlete will be allowed to participate until both student athlete and parents/legal guardians have read and signed the Lystedt Law addendum to the athletic code of conduct.”
The handbook also requires that: “prior to participation in a high school [sport], a student shall undergo a medical examination and be approved for interscholastic athletic competition by a medical authority . . . Prior to each subsequent year of participation a student shall furnish a statement, signed by a medical authority licensed to perform a physical examination, which provides clearance for continued athletic participation.”
The Handbook also states that “Student athletes requiring the attention of a physician due to illness and/or injury must have a physician’s written release prior to returning to practice and/or competition.”
The lower court noted that “all of Chief Leschi’s football coaches, including coach Savini and assistant coaches are trained to recognize and manage concussions. Not only has coach Savini read Washington State’s laws regarding concussions, he has also completed a concussion training program created and administered by the WIAA. “Coach Savini and all of Chief Leschi’s assistant coaches are federal employees for purposes of this claim,” according to the court.
D.I. suffered a head injury at Chief Leschi spring football practice on June 13, 2011, but did not inform his coaches of his head injury, according to the lower court.
On June 14, 2011, D.I. was driven to Lakewood Pediatrics, where he told Dr. Darryl Tan “after he was hit, he felt throbbing in his head, a sense of spinning when he collided with his teammate, and although he did not lose consciousness, he was foggy and ‘saw stars.’
“Dr. Tan noted that his impression was that D.I. had suffered a concussion and instructed him to avoid returning to play until he was cleared and asymptomatic and he should return to the clinic in a week.
“The last day of school at Chief Leschi for the 2010-2011 school year was June 17, 2011. Under Washington Interscholastic League rules, high school football teams are allowed to practice for 10 days in the spring, but must finish practice before the last day of school.”
D.I. did not return to the last three days of football practice in June 2011. He also did not complete a follow-up examination as ordered by Dr. Tan. There was confusion about who was responsible for getting him to his follow-up appointment.
D.I. reported to one of his doctors (Dr. Stephen Glass) that he had suffered a second head injury during summer 2011, according to the court. He also reported he participated in scheduled practices during summer 2011.
“There is no evidence that Chief Leschi scheduled or held summer practices during 2011 in violation of WAIA rules,” wrote the court. “Similarly, there is no evidence that he suffered a second head injury during any form of summer football practices.”
On Sept. 5, 2011, one week before CLHS’ first game, Coach Savini reviewed and passed the WIAA’s “certification” for concussion management.
CLHS played its first football game of the 2011 season on Sept. 10 against Ocosta High School. All of Chief Leschi’s football coaches attended the game, in addition to Athletic Director Audrey Adams and Assistant Athletic Director Orlonda Castillo. Both Ms. Adams and Ms. Castillo had also received concussion certifications.
D.I. was one of Chief Leschi’s best players. He played quarterback on offense, cornerback on defense, and on all kickoff and punt special teams.
During the game, the coach called a quarterback keeper for him, which could have hurt his head, according to the court. “Once again he bounced up from the hit and showed no adverse effects of head injury. He came to the sideline for water.
“D.I. says that at that moment, he told Coach Savini that his head hurt and he was woozy. He claims Coach Savani told him that he was fine and to go back in. Coach Mix was in close proximity to Coach Savini and D.I., and did not hear D.I. complain about a headache. Coach Savini denies D.I. told him his head hurt or anything suggesting that he was hurt.
“Chief Leschi kicked an onside kick and D.I. jogged down the field for a few yards without being touched. A timeout was called and D.I. went to the sideline for water. Standing on the field before the next play, D.I. took off his helmet.
“D.I. remained in the game at cornerback and on the next play—even though an Ocosta offensive player ‘hardly pushed’ him—D.I. fell back to the ground. He laid there. Coach Savini got to him. D.I. said he was ‘burning up.’ Coach Savini removed D.I.’s jersey and shoulder pads. D.I. was assisted off the field. He got on all fours and vomited. An ambulance was called and D.I. was taken to Mary Bridge Children’s Hospital.
“From his first intake at Mary Bridge approximately 1.5 hours after leaving the field, D.I. began telling doctors and a staff RN that he remembered telling coach Savini that his head hurt after each of the two hits, and that each time coach Savini told him to keep playing.
“The credible evidence is that D.I. did not tell Coach Savini that he was hurt at any point in the game, except for when D.I. laid down and complained to Coach Savini that he was burning up.”
D. I. was hospitalized at Mary Bridge Children’s Hospital from Sept. 10, 2011 until Sept. 17, 2011. D.I.’s initial CT scan was read as negative and he was first treated for a concussion and headache.
On Sept. 14, 2011 following a CT angiogram, Dr. Majid Al-Mateen, a pediatric neurologist, diagnosed D. I. as suffering from a subacute infarct within the inferior right cerebellar hemisphere involving the right posterior inferior cerebellar artery (PICA). Dr. Al-Mateen wrote that the right PICA vascular insufficiency was likely related to trauma and a thromboembolic event.
Daphne Ingram and her son Dwight Ingram brought suit under the Federal Tort Claims Act (FTCA), alleging that employees of CLHS, a tribal school, were negligent in administering eligibility requirements and in monitoring his safety during a school football game. After a bench trial, the district court entered judgment in favor of the United States.
The plaintiffs appealed.
“The district court, relying on Athletic Director Adams’s testimony, found that Chief Leschi had received and reviewed ‘the appropriate authorizations’ prior to allowing Dwight to play in the fall 2011 season,” wrote the appeals court. “In particular, Dwight’s October 2009 physical examination met the requirements of the Washington Interscholastic Activities Association policy and Chief Leschi Handbook. Moreover, the district court concluded that Dwight did not inform his coaches of his head injury sustained during practice on June 13, 2011, and therefore Chief Leschi employees were not on notice of the need to obtain medical clearance for Dwight prior to his return to play. See Wash. Rev. Code § 28A.600.190. Although contested, these factual conclusions were neither implausible nor illogical, and were supported by testimony provided at trial.
“The district court reasonably relied upon the testimony of three coaches that Dwight did not inform them that his head hurt at the Sept. 10 game. See Newton v. Nat’l Broad. Co., Inc., 930 F.2d 662, 671 (9th Cir. 1990) (heightened deference due to a trial court’s credibility determination). Neither the game video nor witness testimony presented at trial established an observable decline in Dwight’s play or affect. Cf. Swank v. Valley Christian Sch., 194 Wn. App. 67, 374 P.3d 245, 250 (Wash. Ct. App. 2016). Even assuming the Lystedt law created a duty to remove players after a hit that could cause a concussion, without regard to a player’s lack of symptoms, it was not illogical, implausible, or without basis for the trial court to conclude that the two hits Dwight sustained during play were not of the type to lead a trained observer to suspect a head injury. Evidence supported the trial court’s conclusion that a reasonable, trained coach would not have suspected that Dwight had sustained a head injury prior to his collapse during the Sept. 10, 2011 game.”
Daphne Ingram, a single woman, individually; Dwight Ingram v. United States of America, by and through the Department of the Interior, and Bureau of Indian Affairs; 9th Cir.; No. 14-35359, 2017 U.S. App. LEXIS 3655; 2/28/17
Attorneys of Record: (for plaintiff) Ian Cairns, Howard Mark Goodfriend, Attorney, Smith Goodfriend, PS, Seattle, WA. For defendant) Helen J. Brunner, Esquire, Assistant U.S. Attorney, DOJ-Office of the U.S. Attorney, Seattle, WA; Teal Luthy Miller, DOJ-Office of the U.S. Attorney, Seattle, WA.