The family of a high school football player in Cascade County, Montana has sued a group of defendants—including the school district, its insurers, the employer of an athletic trainer, and multiple individual defendants—after the player was inserted into a game before he had been given medical clearance to return to play from a concussion he had suffered a week earlier.
Robert Back suffered a head injury during a football game on September 5, 2014. Back was taken to the Benefis Health System’s emergency room where he was diagnosed with a minor concussion.
Back rested at home for a couple days, bypassing both the classroom and the practice field. He then went to see a doctor at the Great Falls Clinic, who evaluated him and affirmed the diagnosis of a concussion. The doctor told him he was not to resume practice until September 15, 2014. Back reportedly delivered the note from Great Falls Clinic on September 10, 2014 to his head coach, Jeff Graham.
Graham, allegedly, exchanged text messages about Back’s symptoms with athletic trainer Jessica Hansen, who was employed by Benefis. Hansen told Graham that Back could possibly have the flu, according to the lawsuit. She also allegedly told Graham that an ImPACT test may help determine Back’s readiness to return to play. Graham had Back take an ImPACT test. According to the lawsuit, Hansen reviewed the results of the test on September 11, 2014 and determined that he had passed the test, allegedly without reviewing the medical records at Benefis. Back was allowed to return that day to a noncontact practice.
Just before the game on Friday, September 12, 2014, Graham and/or Hansen verbally cleared Back to play, according to the lawsuit, even though he had not been medically cleared. Back played. While he did not suffer any major collisions during the game, the damage was apparently done. While standing on the sideline at halftime, Back collapsed. Unconscious and unresponsive, he was taken by ambulance to Benefis, where he underwent an emergency craniotomy. As a result of the incident, Back has severe neurological and brain deficits. He is a quadriplegic, who cannot speak, requiring 24-hour care.
Bozeman-based attorney Mike Sand, who is representing the plaintiffs, said Back and his family have incurred more than $1 million in medical bills. “Absent a miraculous recovery, this is the way he’s going to be,” Sand told the media. “Robert’s future medical care is extensive. That burden should not fall upon the family.”
Sand has named the Belt Valley School District, Graham, Benefis, Hansen, EMC Insurance Group Inc., Dakota Fire Insurance Company, and Employers Mutual Casualty Company as defendants in the lawsuit.
The complaint alleges that Graham and Hansen failed to follow the established return-to-play concussion protocol by permitting Back to return to the field without medical clearance. The protocol is based on the Dylan Steigers Protection of Youth Athletes Act, which was passed by the 63rd Montana Legislature in 2013. It specifically requires that a youth athlete who exhibits signs, symptoms, or behaviors consistent with a concussion be removed from participation UNTIL medical clearance is obtained.
The plaintiffs’ specific claims include:
Negligence: Defendants Belt School District 29 and Graham
Negligence: Defendants Benefis Health System and Hansen
Negligent Infliction of Emotional Distress: Defendants Belt School District 29, Graham, Benefis Health System, and Hansen
Loss of Consortium: Defendants Belt School District 29, Graham, Benefis Health System, and Hansen
Declaratory Judgment: Defendants EMC Insurance Group Inc., Dakota Fire Insurance Company
The plaintiffs also challenged, on Constitutional grounds, Montana Code Ann. § 2-9-108, Montana Code Ann. § 25-9-4, and Montana Code Ann. § 25-9-411.
The first challenge is to “Limitation on governmental liability for damages in tort,” or http://leg.mt.gov/bills/mca/2/9/2-9-108.htm
The second challenge is to “Amount of interest,” or http://leg.mt.gov/bills/mca/25/9/25-9-205.htm
The third challenge is to “Medical malpractice non-economic damages limitation,” or http://leg.mt.gov/bills/mca/25/9/25-9-411.htm
Some Similarities with the Rouchleau Lawsuit
The latest lawsuit comes in the heels of another legal action in the state on Montana that was just resolved involving Michael Rouchleau v. Three Forks School District. A settlement calls for Rouchleau and his parents to receive $300,000 as well as lifetime medical care up to $5 million through a catastrophic insurer.
Kim and Joseph Rouchleau, the parents of Michael Rouchleau, filed the lawsuit against the school district, claiming that their son suffered a life-altering traumatic brain injury as a result of his participation in the school’s football program.
The complaint, filed in Gallatin County District Court, alleged that the player’s coaches were negligent when they sent him back on to the field to practice with the team, in spite of a doctor’s recommendation.
According to the lawsuit, Rouchleau and another player suffered concussions and were vomiting on the field after being involved in a head-to-head tackle during practice on August 21, 2009. It was the second such head collision Rouchleau had experienced that day.
A doctor later diagnosed Rouchleau with a concussion and ordered that he not play for 11 days. When the coaches were notified of his limitations, they “indicated that if Michael wanted stay on the team, he would have to show up for practices, but that he would not be asked to play football until medically cleared,” the court document states.
However, the parents claimed that six days after his initial injury, the coaches told Rouchleau “to get out and hit bags, stating it wouldn’t be considered contact play.” They “also told Michael that if he wanted to play varsity, he would have to get off the bench and run some plays,” which he did, according to the suit. During these plays, a shoulder-to-helmet hit with the team’s largest linebacker knocked Rouchleau unconscious and “he woke to find himself being carried off the field.”
“Despite being knocked unconscious and receiving an obvious second concussion, the coaches did not call 911, did not contact the school nurse, and did not contact Michael’s parents,” in violation of school policy, the lawsuit alleged. Instead, “they merely sat him on the sidelines and sent him home after practice.”
