By Jon Heshka, Associate Dean of Law at Thompson Rivers University
A victim of bad timing following the NFL’s $765 million settlement with ex-football players in which the league admitted no wrongdoing in relation to brain injuries sustained on the playing field, a Canadian football player has sued his former university for brain injuries sustained during a 2011 game.
Former defensive end Kevin Kwasny has sued Bishop’s University — based in Sherbrooke, Quebec — in a Manitoba court for $7.5 million alleging he was forced to play despite having symptoms of a concussion during a September 10, 2011 game.
Kwasny alleges he took a blow to his head during the game and told multiple members of the coaching staff that he felt dizzy, had blurred vision and felt like he had “his bell rung.” He further alleges that he was ordered to play despite having these concussion symptoms.
Shortly after returning to the field, Kwasny was hit again and suffered a subdural hematoma (bleeding on the brain). Emergency surgery was performed and he was put in a medically-induced coma. Kwasny now has permanent brain damage and has lost use of the right side of his body. The statement of claim says he will never be able to work again.
Kwasny alleges that coaches and trainers failed to assess him for signs and/or symptoms of a concussion or head injury as required or at all.
Bishop’s University Principal and Vice-Chancellor denies the university did anything wrong saying, “Our football program, our coaches, our medical staff would not allow an athlete to go back on the field if there was any indication of head trauma.” At the time, coaches reviewed game film and were unable to pinpoint any hit or play that caused an injury.
Though they had yet to receive a copy of the statement of claim and were unable to comment specifically, Bishop’s University released a statement saying that a thorough review had been undertaken which showed that from the moment the sports medicine team and coaching staff became aware of a potential injury they took all necessary precautions to ensure Kwasny received immediate medical care.
Bishop’s University has yet to file a statement of defense. None of these allegations have been proven in court.
Kwasny is no doubt aware of the Plevretes v. La Salle University. In 2005, Preston Plevretes sustained a concussion in a practice and, despite headaches and dizziness, was cleared two weeks later to return to play. Two weeks after that, Plevretes was on the receiving end of a hard block during a game which temporarily knocked him unconscious and having suffered a subdural hematoma lapsed into a coma. Plevretes was left with speech impediments, memory loss and other medical issues that require round-the-clock care.
Plevretes alleged that La Salle University failed to properly diagnose, evaluate and treat his prior concussion and improperly allowed him to continue to play football and failed to warn him of the risks of playing.
La Salle settled the case for $7.5 million without any admission of wrongdoing a day before it was to begin trial.
The core issues in Kwasny will be whether Bishop’s coaching staff did what has been alleged in compelling him to return to the field despite him complaining of concussion symptoms, the extent to which Bishop’s approach to concussion management was current and whether its policies were followed or not.
While there are similarities between the two lawsuits, there is also the pending lawsuit by three former US college football players against the NCAA which ought to also be borne in mind. Like Prevretes and Kwasny, the plaintiffs here allege that the NCAA failed to establish appropriate return-to-play guidelines for players who sustained concussions, effectively allowing players to be put in harm’s way. It is noteworthy, however, that neither the NCAA nor CIS (Canadian Interuniversity Sport — the governing body for university sport in Canada) were named in the Plevretes and Kwasny lawsuits.
Sports concussions had come out of the shadows in 2011 as La Salle University had already settled (coincidentally for the same amount being asked for by Kwasny) in 2009 and the lawsuit against the NFL was gathering steam. There had been agreement statements and consensus statements flowing from International Symposiums on Concussions in Sport in Vienna (2001), Prague (2004) and Zurich (2008).
Interestingly, the NCAA is arguing in its lawsuit that until 2012 there was no consensus among medical professionals that players should be kept out of a game immediately following a concussion diagnosis. Judging from the Bishop’s University’s comments to date, it would appear that Bishop’s too believes they did nothing wrong in permitting Kwasny to continue playing.
Notwithstanding the differences in the Canadian version of three-down ball versus its four-down American counterpart and the more obvious difference in the legal systems between the two countries, the Kwasny lawsuit is a hallmark case which serves to show that the problems which plague football do not stop at the 49th parallel.
