By Elizabeth O. Crespo Esq., of Kaleva Law Offices in Missoula, MT
Elizabeth O. Crespo
Athletic trainers guard the health and safety of student athletes. Their duties range far beyond bringing water and helping kids stretch. Their services make it possible for students to engage in dangerous activities with the assurance that a medical professional will help them immediately if the worst thing happens and there will be a process in place to make sure all parties involved will make the right decision concerning the safety and health of student athletes.
This article will examine the definition and role of athletic trainers; outline the background of legal issues surrounding this issue; explore three case studies where an athletic trainer and risk management program could have made the difference between life and death; present the public policy shoring up the argument for school districts to hire athletic trainers and create concussion plans; and make recommendations for decision makers in school districts to formulate a proactive and humane approach to the care of injured student athletes.
The Definition and Role of Athletic Trainers
“Athletic trainers are highly qualified, multi-skilled health care professionals who collaborate with physicians to provide preventative services, emergency care, clinical diagnosis, therapeutic intervention and rehabilitation of injuries and medical conditions. Athletic trainers work under the direction of a physician as prescribed by state licensure statutes and it takes four years for them to earn their degree.”
These trainers play a vital role in any athletic program because they are the primary medical providers for the athletes on-site. Coaches care about the health of their athletes, but coaches have a primary responsibility to coach and the scope of their duties does not extend to professional medical assistance. State licensed, and nationally board-certified, athletic trainers focus solely on the health and well-being of the athletes. “Athletic trainers evaluate and make return-to-play decision on everything from concussions to ankle injuries. We are usually the first ones to evaluate their injuries and then work with them through their rehab to get them back to playing. Having an athletic trainer on the sideline that can recognize subtle signs and symptoms and differentiate between a mild injury versus something that could be potentially life-threatening is invaluable.”  In sum, a medical professional on the field saves lives, reduces risk to students engaged in school sports, and shields school districts from legal liability.
More attention has been given to sports-related concussions in the past few years. The Centers for Disease Control and Prevention (CDC) estimates that 1.6—3.8 million sports-related concussions occur each year.  These injuries occur most commonly while playing football. However, concussions can be a side effect of playing other contact sports like soccer, lacrosse, hockey, rugby, and basketball. 
Concussions can have devastating effects, such as short-term impairments in athletes’ cognitive and athletic performance. Repetitive concussions, and even sub-concussive impacts, have been associated with long-term impairments in neurocognitive functioning, behavioral problems, premature dementia, and chronic traumatic encephalopathy. 
While federal legislation specific to sports-related concussion has been introduced there are currently no federal sports-related concussion laws. States, however, have responded to concerns stemming from sports-related concussion by passing laws intended to protect young athletes. As of January 2014, all 50 states (plus the District of Columbia) have adopted youth sports concussion laws.
Most of these laws contain assumption of the risk components. In a civil negligence action, a plaintiff must prove the following elements: a defendant’s duty of care, failure to exercise reasonable care, factual cause, physical harm, and proximate cause. However, defendants in negligence actions can assert “assumed risk” as an affirmative defense, negating or limiting their liability.
Generally speaking, an individual “assumes the risk” when he or she voluntarily encounters a known risk of harm. Assumption of the risk focuses on an individual’s subjective awareness and knowledge of the risk and their subsequent willingness to encounter that known risk. An individual’s mental state is an important component of an assumed risk defense. In certain situations, a participant’s impaired mental state will preclude a defendant from asserting an assumed risk defense. In determining whether an individual has assumed the risk of injury, “his mental capacity to appreciate the danger of injury is an important factor.”
The relevant question becomes; is a concussed player capable of assuming the risk? The nature of a concussion precludes assumption of the risk. The very nature of a concussion prevents certain subsets of concussed athletes from satisfying the subjective knowledge requirement of assumed risk because a concussion impairs an athlete’s brain function and his or her ability to adequately understand the imminent and significant increase in risk presented by a fresh or repeated concussion.
Elements of concussion management and assumption of the risk statutes differ from state to state. School districts need to be cognizant of their own state laws, so they are familiar with their legal responsibilities and protections.
Under Montana law, schools are obligated to remove athletes in the event the athlete demonstrates signs of concussion. The Montana statute provides:
An athletic trainer, coach, or official shall remove a youth athlete from participation in any organized youth athletic activity at the time the youth athlete exhibits signs, symptoms, or behaviors consistent with a concussion.
A youth athlete who has been removed from participation in an organized youth athletic activity after exhibiting signs, symptoms, or behaviors consistent with a concussion may not return to organized youth athletic activities until the youth athlete: no longer exhibits signs, symptoms, or behaviors consistent with a concussion; and
receives an evaluation by a licensed health care professional and receives written clearance to return to play from the licensed health care professional. The written clearance must state: that the licensed health care professional has evaluated the youth athlete; and
that in the licensed health care professional’s opinion, the youth athlete is capable of safely resuming participation in organized youth athletic activities. 
Additionally, participants in sports voluntarily assume risk associated with their endeavors in Montana:
A person who participates in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for all injury or death to the person and for all damage to the person’s property that result from the inherent risks in that sport or recreational opportunity.
A provider is not required to eliminate, alter, or control the inherent risks within the particular sport or recreational opportunity that is provided.
The following three cases from Montana, Washington, and Oregon illustrate the application of concussion and assumption of the risk statutes.
Montana Case Law
While Montana does not have many cases governing the wisdom of requiring trainers, one specific case illustrates the need to have medical professionals on the field who can recognize symptoms and take appropriate action immediately. It also demonstrates a need for an organized system to facilitate communication between all decision makers.
Filed in March 2016, the Montana case Back v. Belt School District, initially sought $20 million from the district, its athletic director, its football coaches and an athletic trainer at a hospital for allegedly disregarding their state concussion law by prematurely returning a concussed 16-year-old Robert Back to action who then suffered a second head injury that rendered him a quadriplegic.
It was asserted in proceedings that a series of mistakes led to the teen being “cleared” to play. A Cascade County judge dropped the hospital trainer and coach from the civil lawsuit and the school district’s insurance company settled for $750,000. The family’s lawsuit argued a trainer employed by the hospital had “cleared” Robert to play, but football coach Jeff Graham testified the family did not pass on information that doctors suspected he’d suffered a concussion and needed to be cleared by a doctor before returning to play. In closing arguments, Steve Shapiro, attorney for the Back family said: “There isn’t one person who is responsible for what happened here. There are many who are responsible for what happened here,” adding that Back was the “victim of the decisions made by adults surrounding him” (emphasis added).
In application, this fact pattern reads like a nightmare of missed communication and assumptions leading to a permanent tragedy. The one thing all parties agreed on was that this was a preventable disaster. It should never have happened. Robert Back’s mother said in proceedings, “There were so many steps missed with the school and the trainers that could have so easily prevented this, and us, too.” Having a proper risk management program in place with the addition of a trained medical professional on-site could have changed the end to this sad story.
Washington Case Law
In Washington, under a similar statutory construct requiring student athletes to be removed from play if they demonstrate signs of concussion, the Supreme Court found an implied right of action under the statute.
In 2009, high schooler Andrew Swank sustained a concussion but was cleared by his doctor to continue playing football. A week later, he collapsed at a game, and he died two days later. Witnesses and family members said Swank appeared sluggish and confused during his final game, but was not pulled from the field. Swank’s father said that Puryear (the coach) grabbed Swank’s facemask and “jerked it up and down hard” while screaming at him for making mistakes, then sent him back in to play. Swank was hit during the game and staggered to the sidelines, where he vomited and collapsed.
Named after a 13-year old middle school football player who suffered a traumatic brain injury when he was allowed back into a game 15 minutes after suffering a concussion, the Washington calls their concussion management statute the “Lystedt law”. The purpose of the Lystedt law is to prevent further injury or death to youth athletes suffering from concussions and head injuries. For the Court, implying a cause of action was consistent with the Lystedt law’s purpose because these injuries are easily prevented, and a cause of action encourages people to act with due care for the welfare of youth athletes and gives youth athletes recourse when they suffer injury or death due to improper management of their concussions.
Again, an athletic trainer has duties ranging far beyond that of a coach’s immediate interests. Having a plan for concussion management and procedures is essential to protect students. In this and other cases, the need for a party whose sole interest is the health of the players, could stand between those players and death or serious injury.
Oregon Case Law
In an Oregon court in 1993, it became clear that a school may be liable for injuries that do not seem foreseeable, based on a lack of medical knowledge. In Lamorie v. Warner Pacific College, the court held that re-injury of the athlete’s eye and nose was a foreseeable result of continued play since his face was swollen and bruised, and, therefore, the defendant coach could be held liable. The Supreme Court noted: “The existence and magnitude of the risk … bear on the foreseeability of harm. The feasibility and cost of avoiding the risk bear on the reasonableness of defendant’s conduct. Both clearly are empirical questions. We do not mean that they must in every case be submitted to a jury; in an extreme case a court can decide that no reasonable factfinder could find the risk foreseeable * * *.” (Emphasis added). So, even when a school might think they have protection because the injury was not foreseeable (an element of their defense) it might not matter if they have no one on the field with medical training. As stated before, an athletic trainer could be the difference between a school district paying $750,000 to settle one of these cases and continuing with an unblemished record because they took the necessary precautions to protect their student athletes.
Montana, Washington, and Oregon are three of 50 states experiencing increased litigation surrounding the management of concussions and injuries sustained in high school athletic programs. Decision makers for school athletic programs have a specific avenue open to them to take care of athletes and reduce the risk of litigation.
In February of 2004, The National Athletic Trainers’ Association (NATA) issued an official statement on athletic trainers in high schools. It states, “NATA is confident the best way to protect the public is to allow only Board of Certification certified athletic trainers and state licensed athletic trainers to practice as athletic trainers.” Additionally, The American Academy of Family Physicians statement reads, “In states with athletic training regulation, allowing other individuals to continue practicing as athletic trainers without a valid state license … places the public at risk. Athletic trainers have unique education and skills that allow them to properly assess and treat acute and traumatic injuries in high school athletics. In coordination with the team physician, they routinely make decisions regarding the return-to-play status of student athletes. Other allied health professionals are not qualified to perform these tasks. Finally, most situations encountered by athletic trainers should not be left to a coach or layperson who does not have the necessary education and medical and emergency care training.”
Conclusion and Recommendations
This article defined the role of athletic trainers; outlined a brief legal background; explored three case studies in Montana, Washington and Oregon; and presented the public policy argument for hiring an athletic trainer. The last section will make recommendations for decision makers in school districts to formulate a proactive and humane approach to the care of injured student athletes.
Becoming increasingly more common, litigation concerning concussion management failures on part of school districts provide numerous cautionary tales. As recently as September 22, 2018, parents filed suit seeking $38.9 million in damages against an Oregon school district claiming it failed to follow established concussion protocol after their son sustained a head injury playing football. This issue will not go away by itself and school districts have a clear duty to take steps to protect students.
The history and case law demonstrates a substantial need for medical professionals on the field and the development of guidelines that should be followed to limit liability and protect coaches and schools from negligence claims. Athletic programs can be kept at a safe operating level if schools develop and follow a risk management program. Implementing safety procedures under the guidance of trained medical professionals will insulate athletic programs and school officials from liability and student athletes from death and serious injuries.
Each school district in states offering organized youth activities should adopt policies and procedures to inform athletic trainers, coaches, officials, youth athletes and parents or guardians of the nature of brain injuries and the effects of continuing play after a concussion. Having a training program in place to meet these requirements that affected parties could attend at least once a year would go a long way in assuring the health and safety of student athletes.
The cost at the beginning could be high, but schools that take a proactive stance will ultimately reap significant legal and financial benefits from hiring athletic trainers and making sure there is a system in place to facilitate an effective and safe sports program.
 National Athletic Trainers’ Association, 2018
 National Athletic Trainers’ Association, 2018
 Jeff Hopp, head athletic trainer for the Marietta Blue Devils. (September 20, 2018, https://www.ajc.com/blog/high-school-sports/four-questions-with-marietta-head-athletic-trainer-jeff-hopp/IDBAjRrtq6VY36aNCzAzLM/)
 Langlois JA, Rutland-Brown W, Wald MM. The epidemiology and impact of traumatic brain injury: a brief overview. J Head Trauma Rehabilitation. 2006;21:375—378.
 Frommer LJ, Gurka KK, Cross KM, Ingersoll CD, Comstock RD, Saliba SA. Sex differences in concussion symptoms
of high school athletes. J Athl Train 2011;46:76—84.
 McCrea M, Kelly JP, Randolph C, Cisler R, Berger L. Immediate neurocognitive effects of concussion. Neurosurgery 2002;50:1032—1040.
 McCrea M, Kelly JP, Randolph C, Cisler R, Berger L. Immediate neurocognitive effects of concussion. Neurosurgery
 Watanabe T, Elovic E, Zafonte R. Chronic traumatic encephalopathy. PM R 2010;2:671—675.
 Concussion Treatment and Care Tools Act of 2010, 111th Cong, 2nd Sess. 2010. AND the Protecting Student Athletes from Concussions Act of 2011, 112th Cong, 1st Sess. 2011.
 National Conference of State Legislatures. Traumatic brain injury legislation. Available at: http://www.ncsl.org/research/health/traumatic-brain-injury-legislation.aspx. Accessed September 22, 2018.
 See RESTATEMENT (THIRD) OF TORTS § 6 cmt. b (2010) (internal quotation marks omitted) (listing elements of cause of action for negligence).
 Joseph Hanna & Daniel Kain, NFL’s Shaky Concussion Policy Exposes the League to Potential Liability Headaches, 28 ENT. & SPORTS LAW. 9, 11 (2010) (citing Meulners v. Hawkes, 216 N.W.2d 633, 635 (1974) (describing standard for assumption of risk defense)).
 See M.C. Dransfield, Liability of Employer For Injury to Employee Due to His Physical Unfitness For the Work to Which He Was Assigned, 175 A.L.R. 982 § 4 (1948) (“Generally speaking, experience, mental capacity, and age are important factors in determining whether an injured employee is to be considered as having assumed a risk of his employment.”) (citing 35 AM. JUR. 739 § 311).
 Michael McCrea et al., Immediate Neurocognitive Effects of Concussion, 50 NEUROSURGERY 1032, 1039 (May 2002) (emphasizing “importance of systematic assessment of cognitive functioning at the time of concussion for accurate” diagnosis).
 AAN Sports Concussion Toolkit. Sports-concussion state laws. Available at: https://www.aan.com/uploadedFiles/
Website_Library_Assets/Documents/3Practice_Management/5Patient_Resources/1For_Your_Patient/6_Sports_Concussion_Toolkit/statelaw.pdf. Accessed September 22, 2018.
 Mont. Code Ann. § 20-7-1304, MCA
 Mont. Code Ann. § 27-1-753, MCA.
 Back v. Belt Sch. Dist. 29, 2017 Mont. Dist. LEXIS 5.
 Jury: Hospital Not Liable in Belt Football Player’s Paralysis. Robert Back’s parents argued a trainer employed by Benefis had ‘cleared’ him to play. By Associated Press // Mar 22, 2018. https://flatheadbeacon.com/2018/03/22/jury-hospital-not-liable-belt-football-players-paralysis/
 Swank v. Valley Christian Sch., 188 Wash. 2d 663, 681-82, 398 P.3d 1108, 1118-19 (2017).
 Lamorie v. Warner Pac. Coll., 119 Or. App. 309, 312-13, 850 P.2d 401, 402-03 (1993).
 Id. At 312.
 See Back v. Belt Sch. Dist. (Settlement between the family and school district was $750,000)
 NATA Official Statement on Athletic Trainers in High Schools. 2004.
 Jayati Jayati Ramakrishnan, Hermiston School District sued for $38.9 million over concussion, Hermiston Herald, September 17, 2018, http://www.hermistonherald.com/hh/local-news/20180917/hermiston-school-district-sued-for-389-million-over-concussion (last visited Sep 24, 2018).