A federal judge from the Western District of Washington has ruled for the United States in a case in which a student athlete sued Chief Leschi High School (CLHS), claiming the coaching staff was negligent in their handling of the multiple concussions he suffered while participating on the school’s football team.
In so ruling, the court relied on the Federal Tort Claims Act (FTCA).
The student athlete in the case, D. I., was born in 1995 at Fort Leonard Wood, Missouri. As the son of a career Army non-commissioned officer, he moved several times before transferring to CLHS, a Bureau of Indian Nation School in Puyallup, Washington.
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 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.”
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 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 D.I. 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 the summer of 2011, according to the court. He also reported he participated in scheduled practices during the summer of 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 D.I. suffered a second head injury during any form of summer football practices.”
On September 5, 2011, one week before CLHS’ first game, Coach Savini reviewed and passed the WIAA’s “certification” for concussion management.
CLHS had its first football game of its 2011 season on September 10th 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 D.I., who “suffered a hit that potentially 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 close in 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 September 10, 2011 until September 17, 2011. D. I.’s initial CT scan was read as negative and he was first treated for a concussion and headache.
On September 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.
The medical evidence is inconclusive as to the case of D.I.’s stroke. Given the evidence, or lack thereof, of negligence on the part of the school, coaches or administrator, the etiology of the stroke is not relevant to the issues in this litigation. In any event, the plaintiffs have the burden of proof and they have failed to meet their burden.
Daphne Ingram v. United States of America; W.D. Wash.; CASE NO. C12-5892RBL, 2014 U.S. Dist. LEXIS 32926; 3/10/14
Attorneys of Record: (for plaintiff) Rodney B Ray, Margullis Luedtke & Ray, Tacoma, WA; Terry E. Lumsden, Tacoma, WA.
For United States of America, by and through the Department of the Interior, and Bureau of Indian Affairs, Defendant: Philip H Lynch, US Attorney’s Office (Tacoma), Tacoma, WA.
