The parents of Washington state high school football player, who died after suffering multiple concussions on the playing field in 2009, have appealed a state court decision dismissing their claim.
The plaintiffs’ son was Drew Swank, who was participating in a game for New Valley Christian School (VCS) on Sept. 18, 2009 when he suffered a head injury that led to severe headaches, according to the complaint.
Allegedly, Swank was not examined by head coach Jim Puryear, assistant coach Mike Heden, or school headmaster Derick Tabish. But the following Monday, as the headaches persisted, he went to his Coeur d’Alene doctor, Tim Burns.
The doctor diagnosed a concussion and Swank was placed on “no practice, no play” restrictions.
Three days later, Swank told his mother that the headaches were gone. When she called Burns’ office to inform the doctor of the development, the doctor allegedly told a clinic employee to lift the restrictions without a follow-up exam. Swank practiced and then played in a game that night.
Swank played poorly, which the plaintiffs claimed was consistent with a player coming off a head injury. Coach Puryear allegedly called him to the sideline, where he “grabbed him by the facemask and proceeded to violently shake his head up and down in anger,” according to the complaint. Swank went back into the game and suffered a significant hit that caused his head to allegedly whip back and forth before crashing into the field.
Swank managed to get up from the hit, but collapsed after reaching the sideline. He was then rushed to a local hospital, and airlifted to Providence Sacred Heart Medical Center in Spokane, where he died four days later.
The parents claimed in the lawsuit that the school failed to protect their son under the Zackery Lystedt Law, legislation signed into law in July 2009. The law specifies how schools in Washington state handle concussions, including the removal of student athletes suspected of having concussions from practice and games. It also requires that a student athlete receive medical clearance before being allowed to participate following a concussion.
“It’s our belief that the Lystedt law governs what happened in this particular case and it should apply,” said Mark Kamitomo, an attorney for the Swank family.
The Arguments on Appeal
Specifically, the attorney made the following arguments:
“The superior court erred in granting summary judgment in favor of VCS and Puryear because they breached their common law duty of care and violated the Lystedt law by failing to implement gradual return-to-play standards, allowing Drew Swank to play in the Washtucna game, and failing to remove him from the game when he exhibited signs of concussion.
“The superior court erred in granting summary judgment in favor of Burns because he violated the Lystedt law by failing to evaluate Drew Swank, and clearing him to play immediately rather than gradually.
“The superior court’s summary judgment order cannot be upheld based on the other arguments raised by Puryear and Burns.”
As mentioned above, the plaintiff’s appeal pivots on the Lystedt law. To that extend, the motion noted the legislature’s position on the law:
“(a) Concussions are one of the most commonly reported injuries in children and adolescents who participate in sports and recreational activities. The centers for disease control and prevention estimates that as many as three million nine hundred thousand sports-related and recreation-related concussions occur in the United States each year. A concussion is caused by a blow or motion to the head or body that causes the brain to move rapidly inside the skull. The risk of catastrophic injuries or death are significant when a concussion or head injury is not properly evaluated and managed.
“(b) Concussions are a type of brain injury that can range from mild to severe and can disrupt the way the brain normally works. Concussions can occur in any organized or unorganized sport or recreational activity and can result from a fall or from players colliding with each other, the ground, or with obstacles. Concussions occur with or without loss of consciousness, but the vast majority occurs without loss of consciousness.
“(c) Continuing to play with a concussion or symptoms of head injury leaves the young athlete especially vulnerable to greater injury and even death. The legislature recognizes that, despite having generally recognized return to play standards for concussion and head injury, some affected youth athletes are prematurely returned to play resulting in actual or potential physical injury or death to youth athletes in the state of Washington.”
