Former Oregon Athlete Requests the ‘Max’ After Suffering a Concussion During a High School Football Game

Nov 19, 2021

By Robert J. Romano, Senior Writer

It is settled law that within interscholastic athletics, high schools, together with the coaches they employ, have little to no legal responsible for ensuring the health and safety of the student-athletes that play under them. This is because courts have held that, in most cases, high school athletes assume the inherent risks involved within a sport. Therefore, because of the voluntary nature of athletic participation, schools and coaches can avoid liability for injuries that are considered ‘part of the game’. This is not the circumstance, however, when a high school student sustains a head injury and possible concussion.

Currently, all fifty states have enacted legislation, in some form, regarding high school and youth sport-related concussion management guidelines.  Each adopted law varies, therefore, coaches, athletic trainers, physical education teachers, and other school personnel need to familiarize themselves with their state and local concussion policies, in addition to any school specific policies, so that they can best serve their student-athletes and to ensure that they are protecting them against any and all the long term effects associated with concussions.

The State of Oregon implemented a concussion management guideline for interscholastic sports in 2010 entitled Max’s Law.  Oregon’s concussion statute reads, in part, as follows:

(3)(a) A coach may not allow a member of a school athletic team to participate in any athletic event or training on the same day that the member:

(A)       Exhibits signs, symptoms or behaviors consistent with a concussion following an observed or suspected blow to the head or body; or

(B)       Has been diagnosed with a concussion.

(b) A coach may allow a member of a school athletic team who is prohibited from participating in an athletic event or training, as described in paragraph (a) of this subsection, to participate in an athletic event or training no sooner than the day after the member experienced a blow to the head or body and only after the member:

(A)       No longer exhibits signs, symptoms or behaviors consistent with a concussion; and

(B)       Receives a medical release form from a health care professional.

According to court records, on September 13, 2019, Newport (Oregon) High School football player, Ashton Sampson, after receiving a hit to the head by an opposing player, reported to the coaching staff that he felt a ‘tingling sensation’ radiating down through his arm. Newport High’s head football coach, Rod Losier, pulled Sampson from the field of play for the remainder of the game. What is interesting however, and what may cause the high school and the school district to ultimately be held liable, is that Coach Losier failed to notify either the ‘game administrator’ or Sampson’s parents of Ashton’s injury and then, upon returning back to Newport High School after a three and a half-hour bus ride, allowed the injured athlete to drive himself home.  A few days later, Ashton was seen by a physician who diagnosed him with a concussion.

On September 9, 2021, the former high school athlete sued Newport High School and the Lincoln County School District claiming that they, both jointly and severely, were negligent by a) failing to have appropriate policies and procedures in place for concussions, b) failing to follow protocols and Oregon law regarding injured students, and c) failing to recognize his head injury and take any and steps to provide proper notification and medical attention.

Per his lawsuit, Ashton is asking for non-economic damages in the amount of $75,000 and $3,000 for medical expenses.  These dollars figures are based on the claim that as a result of the concussion, the young athlete suffers from chronic headaches and head pressure, tingling in both arms, difficulty with memory and concentration, vision problems, sensitivity to light and sound, mental fog, low energy and drowsiness, and recurrent vomiting and nausea.

While we all may agree that Coach Losier’s actions on that September night in 2019, wherein he failed to inform the school administration and the athlete’s parents that Ashton received a head injury during the course of the game, coupled with the fact that he then allowed Ashton to drive himself home, especially after a long bus ride, were clearly not the best decisions based on the circumstances, do they, however, rise to the level wherein both the high school and the school district would be liable per the state’s Max’s Statute? That question will undoubtable be answered by a judge per a summary judgment motion or ultimately by a jury after trial. What is clear, however, is that all high school coaches, athletic trainers, and school administrators must be diligent, know and understand their state’s concussion management laws, and most importantly, make sure that in all circumstances, any athlete who suffers a head injury receives proper attention and care. If not, they may end up paying the Max under their state’s implemented concussion management statute.

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