The Legal Impetus to the Changing Culture of Contact Sports Rex Schultze & Derek Aldridge Perry, Guthery, Haase & Gessford, P.C., L.L.O. The Hit!!!! A concussion is a traumatic brain injury that alters the way your brain functions. Effects are usually temporary, but can include problems with headache, concentration, memory, judgment, balance and coordination. Mayo Clinic, www.mayoclinic.org Concussion Awareness 2015 Perry Guthery Haase & Gessford 1
Serious side effects: Brain degeneration Memory loss Confusion Impaired judgment Impulse control problems Aggression Depression Progressive dementia Concussion Awareness Not just football! Reported concussions cases involve: Soccer Hockey Basketball Cheerleading Baseball Swimming Concussion Awareness Concussion Awareness 2015 Perry Guthery Haase & Gessford 2
In the news!!!! Targeted hit Disqualification from game and ensuing game referee decision. Omaha Central/Creighton Prep TRO Hearing Judge Smith Camp s Ruling Huskers/ Miami Two (2) Miami players disqualified from game and first half of ensuing game. Concussion Awareness Change Driven by Litigation = Plaintiff Lawyers Court cases: NFL NCAA Illinois High School Activities Association Class Action Soccer Moms Concussion Awareness Following 15 months of litigation, U.S. Soccer announced a brand new series of initiatives designed to reduce the number of concussions suffered by youth soccer players, including the limitation and/or outright banning of heading the ball for players under the age of 13. No More Headers 2015 Perry Guthery Haase & Gessford 3
Per the new protocol, children 10 and under will be barred from heading the ball during any official session practice or game while players ages 11 to 13 will be allowed to head the ball during games only. No More Headers Per the New York Times: [N]early 50,000 high school soccer players sustained concussions in 2010 more players than in baseball, basketball, softball and wrestling combined. U.S. Soccer, Resolving Lawsuit, Will Limit Headers for Youth Players, www.nytimes.com (Nov. 9, 2015) No More Headers A board of education, its employees, agents and organized athletic councils must exercise ordinary, reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassured, concealed or unreasonably increased risks. Benitez v. New York City Bd. Of Educ., 73 N.Y. 2d 650, 656 (1989) Standard of Care 2015 Perry Guthery Haase & Gessford 4
Contributing Factors State statutes Jurisdictional case law Standards and guidelines released by the NFHS Standards and guidelines released by state athletic associations Current widespread concussion protocols, and advances in concussion recognition and treatment science Standard of Care Contributing Factors (continued) Other influences cited in the case law: The Zurich Statement Consensus statement on Concussion in Sport. CDC Heads Up concussion recognition training certification program for coaches Standard of Care Generally, yes, athletes assume the normal or obvious risks of participating in the specific sport they play. Players who voluntarily join in extracurricular interscholastic sorts assume the risks to which their roles expose them but not risks which are unreasonably increased or concealed. Benitez v. New York City Bd. Of Educ., 73 N.Y. 2d 650, 658 (1989) Do Athletes Assume the Risk? 2015 Perry Guthery Haase & Gessford 5
An overwhelming majority of concussion related claims are grounded in some theory of negligence. Many claims are brought when a coach or other supervisory authority unreasonably increases the risks related to the sport or fails to respond prudently after an injury has occurred, thereby aggravating its effect. Often the injury itself (caused by heading a soccer ball or colliding with another player) is a risk inherent to contact sports and is assumed by the player when he or she chooses to participate. Negligence Theory As a general rule, parties do not have the responsibility to take affirmative action to protect others unless a duty or special relationship exists. For example Burke v. McKay, 268 Neb. 14 (2004) (student injured at high school rodeo sanctioned by Neb. High School Rodeo Assoc.) Assumption of the Risk Some courts have recognized that a special relationship exists between schools and their students based on the principle that the K 12 school functions in place of the parent during the school day and therefore has a responsibility to exercise reasonable care toward students. Assumption of the Risk 2015 Perry Guthery Haase & Gessford 6
This special relationship confers upon a school a duty to act with reasonable care and provide sufficient supervision for students in need of protection or aid. This duty of supervision encompasses the duty to adequately instruct athletes, provide proper equipment, and take measures to prevent aggravation of injuries once they occur. Assumption of the Risk A fair statement of the generalized duty a school owes its student athletes is that: [A] board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from un assumed, concealed or unreasonably increased risks. Assumption of the Risk Or phrased slightly differently, [P]layers who voluntarily join in extracurricular interscholastic sports assume the risks to which their roles expose them but not risks which are unreasonably increased or concealed. Assumption of the Risk 2015 Perry Guthery Haase & Gessford 7
Nebraska Concussion Awareness Act Neb. Rev. Stat. 71 9101 to 71 9106 71 9104(1): Each approved or accredited public, private, denominational, or parochial school shall: (a) Make available training approved by the chief medical officer on how to recognize the symptoms of a concussion or brain injury and how to seek proper medical treatment for a concussion or brain injury to all coaches of school athletic teams. Neb. Concussion Awareness Act (2011) 71 9104(1) Each approved or accredited public, private, denominational, or parochial school shall: (b) Require that concussion and brain injury information be provided on an annual basis to students and the students' parents or guardians prior to such students initiating practice or competition. The information provided to students and the students' parents or guardians shall include, but need not be limited to: (i) The signs and symptoms of a concussion; (ii) The risks posed by sustaining a concussion; and (iii) The actions a student should take in response to sustaining a concussion, including the notification of his or her coaches; and Neb. Concussion Awareness Act (2011) LB 923 Amends Concussion Awareness Act at 71 9104(1)(c). Establishes a return to learn protocol for students that have sustained a concussion. Protocol shall recognize that students who have sustained a concussion may need informal or formal accommodations, modifications of curriculum, and monitoring by medical or academic staff until student is fully recovered. 71 9104 (1)(c). LB 923 School Safety Christmas Tree Bill 2015 Perry Guthery Haase & Gessford 8
While there are no bright line rules as to the required standards of care when handling concussions, there are certainly emerging issues worth noting. High schools should consider each of the following: All appropriate staff should be present. Physical trainers, team physicians and school nurses should be available when practicable, to evaluate potential injury and immediately respond. Suggestions for Concussion Response Protocols Considerations (continued): Schools should implement a specific policy for emergency injury response, and all staff should be informed of the procedure. Schools should provide all necessary equipment to prevent student athlete injuries. Both students and their parents or guardians should be informed yearly about concussion symptoms, warning signs and the latest updates in treatment, as well as what to do if they suspect a concussion. Suggestions for Concussion Response Protocols Considerations (continued): Students should be encouraged to act as their own advocates in clearly communicating injuries and symptoms to coaches and other staff. Schools should implement a base line testing program, with both the computerized assessments and an in person physician evaluation and should consistently require baseline and post concussive examinations. (Recommended). Suggestions for Concussion Response Protocols 2015 Perry Guthery Haase & Gessford 9
Considerations (continued): Coaches should be familiar with current developments in concussion recognition, and trained to recognize specific symptoms as well as reminded to act immediately after they suspect injury has occurred. (See NSAA website for NFHS free course on concussion awareness, treatment, etc.) Suggestions for Concussion Response Protocols Considerations (continued): The athletes should be taught techniques to minimize their risk of concussion by playing their sport in a way that avoids unnecessary head hits. The athletes should be taught techniques to minimize their risk of concussion by playing their sport in a way that avoids unnecessary head hits. Suggestions for Concussion Response Protocols Considerations (continued): Practice drills and plays should be altered to decrease the frequency of head hits outside of games. Schools should implement adequate return to play progressions that comply with or exceed the requirements of individual state law. Suggestions for Concussion Response Protocols 2015 Perry Guthery Haase & Gessford 10
Tort Claims Failure to provide safe and adequate equipment Coach s failure to recognize concussion symptoms Failure to implement return to play procedures Failure to have or follow emergency procedure and get immediate medical attention for concussed athletes. Failure to supervise games or practices Failure to pass along critical medical information Failure to properly match competitors Common Theories in Concussion Litigation 42 U.S.C. 1983 Claims (Civil Rights) State created danger theory and violation of 14th amendment substantive due process rights Misuse of state power Failure to train Common Theories in Concussion Litigation The school, employee, district or athletic association owed the student athlete a duty of care En loco parentis Special relationship with student athletes (duty to act with ordinary reasonable care towards student in need) State actor failed to uphold that duty Failed to: Adequately instruct athletes Provide adequate and proper equipment Reasonably match participants Adequately supervise athletic events Take appropriate measures to prevent aggravation of injury after it occurs That failure of the duty was the proximate of the injury Student athlete suffered an actual injury Tort Claims 2015 Perry Guthery Haase & Gessford 11
K.R.S. v. Bedford Cmty. Sch. Dist. 2015 U.S. Dist. LEXIS 80895 (S.D. Iowa Apr. 20, 2015) Special education student Subjected to bullying and/or harassment Football players (teammates) threw footballs at [student s] head Tort Claims K.R.S. v. Bedford Cmty. Sch. Dist. Sued school district and several school district staff in individual and official capacities Numerous legal theories, including negligence by failure to remove from participation in athletic competition and failure to provide reasonable medical care Tort Claims K.R.S. v. Bedford Cmty. Sch. Dist. School nurse s notes indicated: Student came to nurse s office complaining of a headache and double vision. Student reported he had been hit in the head with a football and was concerned he had a concussion. Student did not complain of nausea/vomiting, loss of balance or sensitivity to light or sound and his pupils were equal and reactive. Nurse advised student not to participate in upcoming football game. Nurse advised student to tell his grandmother and that nurse attempted to call the grandmother but there was no answer. Tort Claims 2015 Perry Guthery Haase & Gessford 12
K.R.S. v. Bedford Cmty. Sch. Dist. School nurse s protocol for student visits and care: Nurse kept contemporaneous notes about student visits and care on a daily log in a spiral notebook Nurse later transcribed notes from notebook onto electronic medical record system Nurse destroyed spiral notebook at end of school year after notes had been transcribed Staff Protocol K.R.S. v. Bedford Cmty. Sch. Dist. School nurse s actual conduct created controversy: (As the late Paul Harvey would say, the rest of the story ) Nurse had kept spiral notebook notes for this incident Notebook pages used as exhibits in nurse s 1 st deposition Later determined that notebook pages used at 1 st deposition were not originals Staff Protocol K.R.S. v. Bedford Cmty. Sch. Dist. School nurse s actual conduct (continued): Nurse had recreated the notebook pages from the electronic medical record system Nurse testified that she started to panic when she found the original notebook pages were missing Failed to inform principal that notebook pages were missing Court found nurse s testimony (and likely credibility) was tarnished by lost note gate Staff Protocol 2015 Perry Guthery Haase & Gessford 13
Misuse of Power Harm caused by state was foreseeable and fairly direct State actor acted in a manner that shocks the conscience Some relationship between the state and the plaintiff exists The state actor used his authority to create an opportunity for the specific harm to occur, which otherwise would not have existed Failure to Train The state s failure to train employees amounts to a deliberate indifference to the constitutional rights of that person The employee s lack of training was pursuant to specific policies, customs or practices of the state and caused this violation of constitutional rights 1983 Civil Rights Claims 1983 Qualified Immunity May be available to public officials in defense of a 1983 claim Designed to shield officials from liability for decisions that a reasonable person wouldn t have known clearly violate statutory or constitutional rights Tort Claims Acts Available in most every state, but on different terms Some may delineate the specific claims that can be brought Some prohibit specific torts claims Some give immunity to public official s discretionary decisions Others just cap damages Immunity and Defenses Two Components: Physician assessment of cognition, balance and other general baseline neurological indicators. Computerized assessments that measures an athlete s reaction time, memory capacity, speed of mental processing, and executive functioning of the brain. General facts: Pre injury baseline scores used as metric by which to compare the post injury scores and abilities, indicating potential concussive injury. Recommended repetition of physician assessment every year, every 2 for the computerized component. Not required by statute, but highly recommended. Basics of Baseline Testing 2015 Perry Guthery Haase & Gessford 14
Make appropriate staff available trainers, nurses, etc. Keep students & parents informed about concussion symptoms and treatment. Implement a baseline testing program. Require coaches be trained in concussion recognition. Teach athletes techniques to minimize concussion risk and decrease frequency of head hits while in play. Change practices to decrease head hits. Implement and follow adequate return to play progressions. Maintain the proper equipment to protect students from concussions. Final Suggestions 2015 Perry Guthery Haase & Gessford 15