Washington State Supreme Court Points to Lystedt Law in Swank Ruling

Aug 18, 2017

The Washington State Supreme Court has dealt a blow to a private school and former football coach, finding that they may have violated the Zackery Lystedt Law when they permitted a student athlete, who subsequently died after suffering multiple concussions, to return too soon to the playing field. The court also reversed an earlier ruling, and allowed the negligence claim against the coach to continue.
The lawsuit was filed by the parents of 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, and ultimately his death.
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.
Three years after their son’s death, the parents sued, naming the school, coach, and Dr. Burns in a negligence lawsuit. Specifically, the Swanks alleged that the defendants failed to protect their son under the Lystedt Law, which 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.
The defendants moved for summary judgment, which the trial court granted. The Swanks successfully appealed.
The appeals court wrote that “although VCS argues it had a right to rely on Dr. Burns’ note that Drew was fit to play, the Zackery Lystedt law does not permit VCS to ignore observable signs that Drew continued to suffer from the concussion he earlier sustained and ignore its own (concussion plan) that required VCS to remove Drew from play.” However, the appeals court let stand the trial court’s dismissal of the negligence claim against the coach and the doctor.
Both sides appealed.
“We reverse in part and affirm in part,” wrote the high court. “First, we hold that the Lystedt law includes an implied cause of action and reverse the grant of summary judgment on this point. As a result, we reinstate the Swanks’ claims that VCS and Coach Puryear violated the Lystedt law. Second, we hold that summary judgment on the claims against Coach Puryear was erroneous and reverse the grant of summary judgment on this point. Consequently, the Swanks’ common law negligence claims against Coach Puryear are reinstated for further proceedings in superior court. Finally, we hold that the trial court lacked personal jurisdiction over Dr. Burns and affirm the grant of summary judgment for the claims against him.”
Donald R. Swank et al. v. Valley Christian School, et al.; S. Ct. Wash.; No. 93282-4, 2017 Wash. LEXIS 746; 7/6/17
Attorneys of record: (for petitioners) George M Ahrend, Ahrend Law Firm PLLC, Mark Douglas Kamitomo, The Markam Group Inc PS, Collin Michael Harper, The Markam Group. (for respondents) Edward Joseph Bruya, Bennett Bigelow & Leedom, P.S., Gregory Mann Miller, Carney Badley Spellman PS, Eric Roche Byrd, Bennett Bigelow & Leedom, P.S., William Christopher Schroeder, KSB Litigation, P.S., Patrick Joseph Cronin, Winston & Cashatt, Steven Robert Stocker, Bohrnsen Stocker Smith Luciani PLLC, Gerald Kobluk, KSB Litigation, P.S. (Amicus Curiae on behalf of American Medical Association and others) Stephen Michael Rummage, Davis Wright Tremaine LLP, Douglas C. Ross, Davis Wright Tremaine LLP, Rebecca J. Francis, Davis Wright Tremaine LLP.


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