Court Cuts NCAA, Patriot League Loose from Concussion Case, Leaves University, Government on the Hook

May 12, 2017

A federal judge from the District of Columbia has ruled that some claims made by a former American University (AU) student-athlete, centered on the improper handling of a 2011 field hockey-related concussion in September 2011, can continue against a group of defendants.
In ruling for plaintiff Jennifer Bradley, the judge denied the motion to dismiss of AU and the Federal Government, while siding with the NCAA and Patriot League on its respective motions.
By way of background, the plaintiff claimed she “was hit in the head during a field hockey game between AU and Richmond University.” Subsequent to that hit, she allegedly began experiencing symptoms of a concussion, but continued participating in field hockey practices and games and was not “advised to sit out (practices and games) while her symptoms persisted.” According to the plaintiff, this failure has caused her a variety of harms, including monetary damages.
Between August 2014 and October 2014, the plaintiff filed several actions in the Superior Court of the District of Columbia, which were consolidated against the NCAA, the Patriot League, the Federal Government, AU, and others. Shortly thereafter, the defendants filed their respective motions to dismiss the plaintiff’s lawsuit, pursuant to Federal Rule of Civil Procedure 12(b)(6), or the failure to state a claim.
Addressing the Federal Government’s argument that the statute of limitations had expired, pursuant to the Federal Tort Claims Act, the court found that the clock on the plaintiff’s claim did not start until she learned the treating doctor, a military fellow, was acting within the scope of his federal employment, and not as an employee of the Medicine Center in which case he would have been a university employee.
“Therefore, because the plaintiff filed her administrative claim within two years after learning of the doctor’s status as a military fellow, the court must reject the government’s position that the plaintiff’s claims against it are time-barred.”
The government’s argument, pursuant to the borrowed servant doctrine, also failed because the government could not show that the aforementioned doctor was “attached” to a physician’s practice.
The Plaintiff’s Claims Against the NCAA
Turning to the plaintiff’s claim against the NCAA, she claimed the NCAA was negligent because it “was careless and negligent by breaching the duties of care it assumed for the benefit of (the plaintiff). To state a claim of negligence under District of Columbia law, the plaintiff must establish that “(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and (3) the breach of duty proximately caused damage to the plaintiff.” Haynesworth v. D.H. Stevens Co., 645 A.2d 1095, 1098 (D.C. 1994).
The NCAA argued that nowhere did the plaintiff plead that the NCAA “did something or did not do something after the alleged injury with respect to her medical care, that the NCAA played any part in the medical decision made by the health care providers she consulted, or even that the NCAA was aware of her injury or that she was receiving medical care.”
The federal judge disagreed, noting that the plaintiff has pleaded sufficient facts “to establish a claim of negligence against the NCAA … because it undertook and assumed a duty to protect the physical and mental well-being of all student-athletes participating in intercollegiate sports, including [her,] . . . [and] a duty to protect student-athletes from brain injuries.”
As for the plaintiff’s allegation that she “has and continues to suffer from severe emotional distress” resulting from the NCAA’s alleged negligence, the court sided with the NCAA.
“The plaintiff has not pleaded facts sufficient to establish a claim of negligent infliction of emotional distress against the NCAA,” wrote the court. “In her amended complaint, the plaintiff merely summarizes the same allegations upon which she seeks to establish claims of negligence and gross negligence, and recites, in a conclusory fashion.”
As for the fraudulent misrepresentation claim against the NCAA, the court again sided with the defendant.
“The plaintiff has failed to allege facts sufficient to state a claim of fraudulent misrepresentation against the NCAA to survive a motion to dismiss. The plaintiff claims that the ‘NCAA has both promised and acknowledged that it has a duty to protect the health and safety of student-athletes’ because the NCAA’s Constitution states that the NCAA ‘shall assist (member) institution(s) in (their) efforts to achieve full compliance with all rules and regulations,’ and because ‘the NCAA utilizes injury surveillance data to examine, explore, understand, and work to prevent sports injuries.’
“Additionally, the plaintiff asserts that the NCAA’s representations to protect the health and safety of student-athletes were false. However, the plaintiff recognizes that the NCAA, through its Constitution, expressly notes that each member institution maintains sole responsibility ‘to protect the health of, and provide a safe environment for, each of its participating student athletes.’ Even accepting the plaintiff’s allegation of fraudulent misrepresentation as true, as the court must at this stage of the proceedings, she has not alleged any facts that demonstrate how the NCAA’s representations are allegedly false… . Instead, what the plaintiff has done is simply assert a threadbare recital of the elements of a fraudulent misrepresentation claim. Such bare, conclusory allegations satisfy neither the Rule 8 pleading standards as explained under Iqbal, nor the heightened pleadings requirements of Rule 9(b). The plaintiff’s fraudulent misrepresentation claim against the NCAA must, therefore, be dismissed.”
Turning to the breach of contract claim, the judge found for the NCAA “because the plaintiff has failed to plead facts sufficient to establish a valid contract between her and the NCAA regarding the NCAA’s alleged duty or obligation to provide her medical treatment, the court must grant the NCAA’s motion to dismiss the plaintiff’s breach of contract claim against it.”
The novel argument that the NCAA, through the Sports Medicine Handbook and its policies, was liable for medical malpractice similarly failed, since it “only provides guidance for the consideration of its member institutions and does not establish a standard of care, instead deferring to the member institutions the responsibility of developing sports medicine policies for the care and treatment of their student-athletes.”
The Plaintiff’s Claims Against the Patriot League
The plaintiff alleged that the Patriot League failed to “provide and oversee a management system for (the treatment of the) concussion” that she suffered. The court found that the plaintiff had not demonstrated that it owed her a duty of care. It went on to note that, like the NCAA, The Patriot League delegates that duty to its respective member institutions.
Interestingly, the Patriot League also successfully argued that post-concussion treatment is a “medical decision, involving individual considerations between the doctor and patient. Medical providers should not be second-guessed by bureaucrats in an athletic conference. Rather, medical decisions as to whether an athlete is physically cleared to play should be left within the sound discretion of trained health care providers, not organizations whose purpose is to provide referees, arrange for competitive fields / courts, and facilitate tournament and championship play.”
The plaintiff also alleged a negligent infliction of emotional distress claim against the Patriot League. Similar to the analysis of the same claim against the NCAA, “the plaintiff has not alleged facts sufficient to plausibly state a claim of negligent infliction of emotional distress against the Patriot League.” Accordingly, “because the plaintiff’s conclusory allegations do not rise to the level necessary for the plaintiff to state a claim of entitlement to relief, the court must dismiss the plaintiff’s negligent infliction of emotional distress claim against the Patriot League.”
The claim brought against the Patriot League on a breach of contract theory also failed because the plaintiff “has failed to identify a valid contract between her and the Patriot League to proceed with a breach of contract claim.”
In addition, the judge dispatched with the plaintiff’s claim of medical malpractice against the Patriot League because she has not alleged or proffered any facts demonstrating that the Patriot League is an “entity licensed or otherwise authorized under District law to provide healthcare services.”
The Plaintiffs Claims Against the University
The plaintiff was more successful in its bid to defeat the university’s motion to dismiss, at least as far as its negligence claim was considered. Additionally, at this stage of the case, the court finds that “it was reasonably foreseeable that the university’s alleged negligence regarding its duties to take precautions to minimize additional risks by prohibiting the plaintiff from further participation in field hockey activities would likely cause additional injuries. Accordingly, the court concludes that the plaintiff has alleged facts sufficient to give rise to a duty of care to pursue her negligence claim against the university, and therefore, the court must deny the University’s motion to dismiss this claim.”
For a third time, the plaintiff was unsuccessful in overcoming a motion to dismiss its intentional infliction of emotional distress claim against a defendant, with the court noting that “bald assertions and conclusory allegations … do not satisfy the pleading requirements.”
The plaintiff also came up empty on its breach of contract claim against the university. “Like the other defendants, the university successfully argued that dismissal was justified “because the plaintiff has not identified the existence of a valid contract that it breached.”
The court, however, was reluctant to grant the motion to dismiss the medical malpractice claim against the university. It found that the plaintiff has alleged facts sufficient to demonstrate that the University and its athletic and medical staff provided health care services that qualify them as healthcare providers in the District of Columbia. Even though “there does not appear to be a case in this jurisdiction that has addressed whether a university, coach, or athletic trainer qualify as a ‘health care provider’ under District of Columbia law, … the clear language of District of Columbia Code section 16-2801(2)” leaves the door open for interpretation through further discovery.
Bradley v. National Collegiate Athletic Association et al., Dist. of Columbia; Civil Action No. 16-346 (RBW); 4/12/17
Attorneys of Record: (for plaintiff) Matthew Andrew Naci, PAULSON & NACE, PLLC. (for defendant NCAA) J. Christian Word, LATHAM & WATKINS LLP, Kevin Andrew Chambers, LATHAM & WATKINS LLP & Sarah M. Gragert, LATHAM & WATKINS LLP; (for defendant PATRIOT LEAGUE) Daniel C. Costello, WHARTON, LEVIN, EHRMANTRAUT & KLEIN, P.A. & Michelle R. Mitchell, WHARTON, LEVIN, EHRMANTRAUT & KLEIN, P.A. (for defendant AMERICAN UNIVERSITY) Christine Frazier Hein & John J. Murphy, III, WALKER, MURPHY & NELSON, LLP. (for defendant MARYLAND SPORTS MEDICINE CENTER) H. Kenneth Armstrong, ARMSTRONG, DONOHUE, CEPPOS, VAUGHAN & RHOADES, CHARTERED & Mary Kathleen Fallon, ARMSTRONG, DONOHUE, CEPPOS, VAUGHAN & RHOADES, CHARTERED (for defendant UNITED STATES OF AMERICA) Derrick Wayne Grace, U.S. ATTORNEY’S OFFICE FOR THE DISTRICT OF COLUMBIA.


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