Ringing the bell on concussions

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Recreational Torts

August 2012, Volume 48, No. 8

Ringing the bell on concussions 

John M. Parisi and Douglas R. Bradley

Once seen as routine in many sports, concussions are far from trivial. Even mild traumatic brain injury can have lasting effects, and repeated trauma can be catastrophic, especially for young athletes. Coaches and schools must take steps to prevent and properly manage concussions.

Brain injuries in youth sports have reached epidemic proportions. According to the Centers for Disease Control and Prevention (CDC), more than 300,000 sports- and recreation-related traumatic brain injuries (TBI) occur in the United States each year.1 A concussion is a type of mild TBI. The American Academy of Neurology defines it as “a trauma-induced alteration in mental status that may or may not involve loss of consciousness.”2

If allowed sufficient physical and mental rest, most concussions resolve without debilitating, lasting effects. But when an athlete who has sustained a concussion is prematurely returned to play, he or she is put at substantial risk for additional trauma that can result in serious, permanent brain damage and even death. And this risk is elevated for youth because adolescent brains are still developing, are more vulnerable to concussions, and require a longer recovery period than adult brains.3

The problem is not new. From 1997 to 2007, at least 50 football players of high school age or younger in more than 20 states have been killed or sustained serious head injuries on the football field.4 But many coaches still misperceive the dangers of concussions. A 2007 study reported that 42 percent of surveyed coaches believed that sports-related concussions occur only when the athlete experienced a loss of consciousness, and 25 percent said they would allow an athlete to continue to play despite having concussion symptoms.5 The problem gained more recognition recently, when former NFL players brought lawsuits against the league, alleging that it concealed the risks of concussions from players.6 Although football has received much of the attention, concussions also occur in other contact and non-contact youth sports, including ice hockey, basketball, cheerleading, and soccer.

Prematurely returning an athlete to play (before the brain has healed from the initial concussion) can result in post-concussion syndrome or second-impact syndrome. Although relatively rare, second-impact syndrome can occur when a second blow to the head occurs before the brain has healed, causing hemorrhaging and swelling of the brain. Without immediate treatment, it can result in death.7 Post-concussion syndrome, which is more common, results in cognitive deficits such as difficulty with concentration, headaches, fatigue, sleep disturbance, vertigo, irritability, anxiety, depression, and apathy, which may be permanent.8

The key to preventing permanent neurological deficits associated with post-concussion and second-impact syndromes is to prevent the athlete from returning to play until the brain has healed. If an athlete sustains a suspected concussion and a coach, school administrator, or health care provider returns him or her to play prematurely, a claim of inadequate concussion management can be brought for the athlete’s resulting brain injury. Several lawsuits brought on behalf of high school athletes who sustained severe, permanent brain injuries have resulted in settlements.9

Duties owed to young athletes

Three main categories of defendants are potentially liable in inadequate concussion management cases: coaches and schools, physicians and athletic trainers, and the governing bodies of youth sports and athletic associations. Product manufacturers also may be liable.10 Although the duties of these potential defendants differ somewhat, the theory of liability is generally one of negligence.

Coaches and schools. In general, coaches have a duty to exercise reasonable care to prevent foreseeable risks of harm to others. The duties most pertinent to concussion recognition and management are supervision, provision of prompt and proper medical care, and withholding injured athletes from competition.11 The Nebraska Supreme Court, for example, determined that the standard of care for a coach regarding the recognition of a concussion and return to play is that of a reasonably prudent coach or teacher.12

The primary basis for holding a school district liable for injury to an athlete is its employment of the coach or athletic trainer. In addition to vicarious liability, school districts may owe an independent duty to promulgate and enforce guidelines for concussion management.

Health care providers. A physician’s duty to an athlete with a concussion—as in a standard medical negligence case—is to act within the acceptable standards of medical care.13 Injured athletes may have a claim against a physician who fails to diagnose the presence or severity of a concussion or who cleared the athlete to return to play prematurely, thereby causing additional injury. “Return to play” guidelines for physicians, as well as expert testimony on the topic, are important in establishing the standard of care.

Athletic trainers also owe a duty of care.14 A basis for this standard of care can be found in guidelines issued by the National Athletic Trainers’ Association for concussion management.15 They say an athletic trainer must be able to recognize head injuries that require further medical attention and provide a physician referral to ensure proper follow-up care. At least one court has held that an athletic trainer had a duty of care to refer an injured athlete to a physician for treatment.16

Governing bodies. Governing bodies of youth sports and athletic associations may be liable if they fail to adopt or enforce appropriate policies and procedures for concussion management. At least one court has rejected the claim that a high school athletic association breached its duty to promulgate rules concerning head injuries and return-to-play guidelines,17 but other court decisions support the argument that sports governing bodies owe a duty of care to their athletes.18

Concussion management standards

A key to handling any youth sports concussion case is to establish the appropriate standards of care or “rules of the road” the defendants should have followed. These standards should be identified through experts in the field and published literature that the defendant agrees are applicable to the sport. The CDC has published extensive resources as part of its “Heads Up” campaign to prevent and control TBI in sports and to increase awareness about the dangers of concussions for young athletes.19 These resources, which are intended for coaches and health care professionals, are also valuable to plaintiff lawyers in establishing the standard of care.

Coaches. The CDC “Tool Kit” for high school coaches recites the following rules when a coach suspects an athlete has sustained a concussion: (1) remove the athlete from play; (2) ensure that the athlete is evaluated by a health care professional experienced in evaluating for concussions; (3) inform the athlete’s parents or guardians about the possible concussion and give them the fact sheet on concussions; and (4) keep the athlete out of play the day of the injury and until a health care professional, experienced in evaluating for concussions, says that he or she is symptom free and it’s OK to return to play.20 The CDC also provides guidelines to properly identify the signs of concussions, another resource to establish the standard of care for concussion prevention and management.21

The National Federation of State High School Associations has adopted the CDC approach to concussion recognition and management.22 Its guidelines state that coaches must be aware of the symptoms and behaviors that signal a possible concussion and, if an athlete is suspected to have a concussion, that the athlete must be removed from play immediately. They also state that no athlete should return to play or practice on the same day the athlete sustains a concussion. Although it is not mandatory for state high school athletic associations or member schools to adopt CDC guidelines, their widespread use makes a strong case that these rules are the standard of care for high school coaches.

Health care professionals. The CDC provides a free online training course for health care professionals. It includes rules for concussion assessment and management of young athletes suspected of sustaining a concussion.23 The five-step return-to-play program involves evaluating the athlete during stages of increased exercise over a period of time to determine whether concussion symptoms return. Before beginning this progression, the CDC guidelines require that the athlete be asymptomatic and returned to baseline (pre-concussion) status.

Other organizations and governing bodies have developed similar return-to-play guidelines, including the American Academy of Neurology, the Colorado Medical Society, the Cantu Guidelines, and the International Conference on Concussion in Sport.24 Although these guidelines vary, recent medical evidence suggests that a more conservative approach should be taken to returning adolescents to play.25 The adolescent brain is still developing and requires more recovery time than that of an adult, so return-to-play guidelines for adults are probably inappropriate for young athletes.26

State laws. Because awareness of brain injury and concussion in youth sports has increased, at least 29 states have passed legislation addressing concussion management in high school athletics over the past five years.27 Depending on the existence of concussion statutes in your jurisdiction, it may be possible to pursue a negligence per se theory if the coach does not comply with the statutory requirements.28

In 2009, Washington was one of the first states to pass legislation requiring each school district to collaborate with an athletic association to develop a concussion management guideline and plan for symptom awareness.29 For an athlete under 18 who has sustained a suspected concussion, the Washington statute prohibits return to play without a licensed health care provider’s written approval. The statute also provides immunity for ordinary negligence for volunteer health care providers who clear an athlete to return to play.30 At least two states provide immunity to coaches who adhere to the specific statutory requirements.31 Practitioners therefore must be aware of the applicable laws on liability and potential immunities of those involved.

Proving your case

It is critical to establish what the coaching staff or health care provider knew or should have known about the athlete’s concussion (or suspected concussion symptoms) and what action was taken to evaluate the athlete before returning to play. Medical expert testimony is equally important to establish the mechanism of injury, the nature and effect of TBI, and that the injury’s permanence was caused by additional impacts after the athlete was returned to competition.

Although not exhaustive, the following evidence may be important to proving your case:

  • game film and photographs
  • testimony from other athletes or former coaches
  • testimony of parents, relatives, friends, and teachers about the athlete’s behavior before and after the first concussion
  • school records that contain injury report forms and records of the plaintiff’s health care
  • school or athletic association policies and procedures on injury reporting and return to play
  • the plaintiff’s medical chart
  • neurologist opinions evaluating the timeline of events and medical information to establish that additional impacts worsened the athlete’s injury or made it permanent
  • neuropsychological testing and evaluation
  • diagnostic imaging, including sensitive imaging used for TBI, such as Single-Photon Emission Computed Tomography (SPECT), Positron Emission Tomography (PET), 3 Tesla Magnetic Resonance Imaging (3T MRI), and Diffusion Tensor Imaging (DTI).

Potential defenses

Every jurisdiction has its own set of challenges in rebutting potential defenses. They include assumption of the risk; statutory immunities that may apply to coaches, schools, and volunteers; and waivers of liability.

Assumption of the risk and comparative fault. Defendants often raise the assumption of the risk defense.32 Although this doctrine may apply to an initial concussion sustained by an athlete in a contact sport, it should not apply in cases alleging inadequate concussion management. In these situations, the coach has needlessly endangered the athlete by prematurely allowing him or her to return to play, risking the athlete’s health above the risk inherent in the sport. To combat this defense, it is important to establish evidence that the coaching staff knew of the player’s concussion or of symptoms that should have caused them to suspect a concussion.33

Defendants also commonly argue that the athlete is comparatively at fault for not informing the coach of the concussion or by attempting to conceal symptoms. The plaintiff lawyer can establish evidence that the coach should have suspected a concussion and has a duty to remove the athlete from play until cleared by a health care professional. It is the coach—not the athlete—who decides whether the athlete plays. Further, athletes who suffer a traumatic brain injury often are unaware of their symptoms or have been conditioned to “tough out” injuries and get back in the game.

Immunity in public school cases. For claims brought against a public entity for the vicarious liability of its employee coach, the defenses of sovereign immunity and qualified or official immunity are often raised. Although the existence and extent of these immunities vary by jurisdiction, sovereign immunity generally applies to public schools unless a specific statute provides an exception or waiver. Note also that such waivers often contain damages caps.34

Naming the coach individually may avoid sovereign immunity because school districts often provide insurance coverage for teachers and coaches for conduct within the course and scope of their employment to which sovereign immunity may not apply. The plaintiff lawyer must research the statutory immunities and case law of the jurisdiction to determine the viability of recovery against the potential defendants.

The doctrine of qualified or official immunity may also apply to a coach employee of a public school district. In some states, this doctrine applies only to upper-level decision-makers, such as school board officials, and not coaches.35 In most jurisdictions, its applicability requires an analysis of whether the negligent act was a discretionary function or ministerial duty, with immunity applying only to the former.36 As state legislatures, athletic associations, and schools adopt concussion management and return-to-play policies, practitioners may be able to prove that the coach violated a ministerial duty established by such policies.

Volunteers and liability waivers. Some states have passed “volunteer statutes” to provide immunities for volunteer coaches for their negligence arising out of coaching duties.37 Schools and recreational organizations commonly require athletes and their parents to sign liability waivers before participating in the sport. While courts look at various factors when determining whether to enforce liability waivers, they generally have refused to enforce them, finding them to be in violation of public policy.38 Schools and athletic associations may also have difficulty enforcing liability waivers against minors.39 Even in situations where a liability waiver is enforced, generally the release of liability is void with respect to claims of gross negligence, recklessness, or wanton conduct.40

Regardless of the defense that may be asserted, physicians, health organizations, state legislatures, schools, and youth sports organizations have all acknowledged the risk of repeated concussions in young athletes. They have the tools to prevent and manage them.

If young athletes are to enjoy sports without unnecessary risk, preventing and recognizing concussions is crucial. When that standard of care is not met, the plaintiff lawyer is in a position to ensure that those entrusted with young athletes are held accountable.

John M. Parisi is a partner at Shamberg, Johnson & Bergman in Kansas City, Mo. He can be reached at jparisi@sjblaw.com. Douglas R. Bradley is a senior associate with the firm. He can be reached at dbradley@sjblaw.com.


  1. Press Release, Ctrs. for Disease Control & Prevention, CDC Announces New Initia­tive to Help High School Coaches Recognize and Manage Concussions (Sept. 22, 2005), www.cdc.gov/media/pressrel/r050922.htm.
  2. Quality Stands. Subcomm. of Am. Acad. of Neurology, Practice Parameter: The Management of Concussion in Sports (1997), www.aan.com/professionals/practice/guidelines/pda/Concussion_sports.pdf.
  3. Sergio R. Russo Buzzini & Kevin M. Guskiewicz, Sport-Related Concussion in the Young Athlete, 18 Current Op. Pediatrics 376, 377 (2006).
  4. Alan Schwarz, Silence on Concussions Raises Risks of Injury, N.Y. Times (Sept. 15, 2007), http://tinyurl.com/7mx998v.
  5. William P. Meehan & Richard G. Bachur, Sport-Related Concussion, 123 Pediatrics 114, 118 (2009).
  6. See Paul Anderson, NFL Concussion Litigation: The Lawsuits Continue (June 8, 2012), http://nflconcussionlitigation.com.
  7. Robert C. Cantu, Second-Impact Syndrome, 17 Clinical Sports Med. 37, 38–39 (1998).
  8. Barry Willer & John J. Leddy, Management of Concussion and Post-Concussion Syndrome, 8 Current Treatment Options in Neurology 415, 417 (Oct. 2006).
  9. See e.g. Marty Graham, Football Head Injury Results in $4.4 Million Settlement, Reuters (Mar. 10, 2012), http://tinyurl.com/79rgnby; Lee Kavanugh, Teen’s Football Injury Reshapes Future, Family, Kans. City Star (Mar. 22, 2009) ($3 million settlement against school district and coaches).
  10. The liability of manufacturers of products (such as helmets) to prevent or mitigate concussions is beyond the scope of this article.
  11. See Anthony S. McCaskey & Kenneth W. Biedzynski, A Guide to the Legal Liability of Coaches for a Sports Participant’s Injuries, 6 Seton Hall J. Sport L. 7, 14 (1996).
  12. Cerny v. Cedar Bluffs Junior/Senior Pub. Sch., 679 N.W.2d 198, 205 (Neb. 2004).
  13. See e.g. Classen v. Izquierdo, 520 N.Y.S.2d 999, 1002 (N.Y. Sup. Ct. 1987); see also Matthew J. Mitten, Legal Issues Affecting Medical Clearance to Resume Play After Mild Brain Injury, 11 Clinical J. Sport Med. 199 (2001).
  14. See e.g. Searles v. Trustees of St. Joseph’s College, 695 A.2d 1206, 1210 (Me. 1997).
  15. Kevin M. Guskiewicz et al., National Athletic Trainers’ Association Position Statement: Management of Sports Related Concussions, 39 J. Athletic Training 280 (2004).
  16. See Jarreau v. Orleans Parish Sch. Bd., 600 So. 2d 1389, 1393 (La. App. 1992).
  17. See e.g. Serrell v. Connetquot C. High Sch. Dist., 798 N.Y.S.2d 493 (N.Y. App. Div. 2005).
  18. See Wissel v. Ohio High Sch. Athletic Assn., 605 N.E.2d 458, 462 (Ohio App. 1992); Mohr v. St. Paul Fire & Marine Ins. Co., 674 N.W.2d 576, 582 (Wis. App. 2003).
  19. See Ctrs. for Disease Control & Prevention, Injury Control & Prevention: Traumatic Brain Injury—Concussion in Sports (Oct. 6, 2011), www.cdc.gov/concussion/sports/index.html (this URL provides access to the CDC’s “Heads Up” Tool Kits).
  20. Ctrs. for Disease Control & Prevention, Heads Up: Concussion in High School Sports—Guide for Coaches 6 (June 2010), www.cdc.gov/concussion/pdf/Coach_Guide-a.pdf.
  21. Ctrs. for Disease Control & Prevention, Concussion Signs and Symptoms Checklist (May 2010), www.cdc.gov/concussion/pdf/TBI_schools_checklist_508-a.pdf.
  22. Natl. Fedn. of St. High Sch. Assns., Sports Med. Advisory Comm., Suggested Guidelines for Management of Concussions in Sports (2009, rev. Jan. 2011), www.schsl.org/2010/concussion3-17-11.pdf.
  23. CDC materials for health care professionals can be found at http://preventingconcussions.org.
  24. See Robert C. Cantu, Guidelines for Return to Contact Sports after a Cerebral Concussion, 14 Physicians & Sportsmed. 75 (1986) (the American College of Sports Medicine has adopted the Cantu guidelines); Colo. Med. Socy. Sch. & Sports Med. Comm., Guidelines for Management of Concussion and Sports, 4 Colo. Med. 87 (1990, rev. 1991); Paul McCrory et al., Consensus Statement on Concussion in Sport: The 3rd International Conference on Concussion in Sport Held in Zurich, November 2008, 44 J. Athletic Training 434 (2009); Sports Neuropsychology: Assessment and Management of Traumatic Brain Injury 112, 112–17 (Ruben J. Echemendia ed., Guilford Press 2006).
  25. See Laura K. Purcell, Evaluation and Management of Children and Adolescents with Sports-Related Concussion, 17 Paediatric Child Health 31 (2012), www.cps.ca/english/statements/HAL/HAL12-01.pdf.
  26. Id.
  27. Ala. Code §22-11E-2 (West 2012); Alaska Stat. §§14.30.142 to .143 (Lexis 2012); Cal. Educ. Code Ann. §49475 (West 2012); Colo. Rev. Stat. Ann. §25-43-103 (West 2012); Conn. Gen. Stat. Ann. §10-149c (West 2012); Del. Code Ann. tit.14, §303 (Lexis 2012); D.C. Code §§7-2871.02 to .05 (West 2012); 2012 Idaho Laws ch. 299 (H.B. 632) (Apr. 3, 2012) (repealing Idaho Code Ann. §33-1625); Ind. Code Ann. §§20-34-7-4 to -5 (West 2012); 105 Ill. Comp. Stat. Ann. §5/10-20.53 (West 2012); Iowa Code Ann. §280.13C (West 2012); Kan. Stat. Ann. §72-135 (2012); La. Stat. Ann. §§40:1299.182 to .185 (2012); Md. Educ. Code Ann. §7-433 (2012); Minn. Stat. §§121A.37 to .388 (2012); Mo. Rev. Stat. §§167.765 to .775 (2012); Neb. Rev. Stat. §§71-9101 to -9106 (2012); N.J. Stat. Ann. §§18A:40-41.1 to .5 (West 2012); N.M. Stat. §22-13-31 (2012); N.D. Cent. Code §15.1-18.2-04 (2012); Okla. Stat. Ann. tit. 70, §24-155 (2012); Or. Rev. Stat. §336.485 (2012); 24 Pa. Consol. Stat. Ann. §§5321 to -23(2012); R.I. Gen. Laws §§16-91-1 to -4 (2012); S.D. Codified Laws §13-36-11 to -14 (2012); Tex. Educ. Code Ann. §§38.151 to .160 (2012); 2012 Vermont Laws No. 171(H. 559) (2012) (amending §39(a) Vt. Stat. Ann. tit. 16, §1431); Va. Code Ann. §22.1-271.5 (Lexis 2012); Wash. Rev. Code §28A.600.190 (2012).
  28. Several state statutes expressly exempt statutory causes of action, but common law causes of action may still be pursued. See e.g. La. Stat. Ann. §40:1299.184D (2012); Minn. Stat. §121A.38 subdiv. 2(g) (2012); N.D. Cent. Code §15.1-18.2-04(8) (2012).
  29. Wash. Rev. Code §28A.600.190(2) (2012).
  30. Id., §28A.600.190(4). Other states have concussion management statutes with similar volunteer health care provider immunities. See Ind. Code §20-34-7-5(b) (2012); Okla. Stat. tit. 70, §24-155C (2012). Kansas gives immunity for all health care providers who are not employees of a school district. Kan. Stat. Ann. §72-135(f) (2012).
  31. See 24 Pa. Consol. Stat. Ann. §5323(i)(2) (2012); 2012 Idaho Sess. Laws ch. 299 (H.B. 632) (repealing §33-1625).
  32. See e.g. Knight v. Jewett, 834 P.2d 696, 712 (Cal. 1992).
  33. See e.g. Zemke v. Arreola, 2006 WL 1587101 (Cal. App. 2006).
  34. See e.g. Mo. Rev. Stat. §537.610(2) (2012).
  35. See e.g. Bolon v. Rolla Pub. Schs., 917 F. Supp. 1423, 1431-32 (E.D. Mo. 1996) (overruled on other grounds); Jackson v. Roberts, 774 S.W.2d 860, 860-61 (Mo. App. 1989).
  36. See Restatement (Second) of Torts §895D (1979).
  37. See e.g. Colo. Rev. Stat. §13-21-116 (Lexis 2012); Ga. Code Ann. §51-1-41 (2012); 745 Ill. Comp. Stat. 80/1 (2012); Ind. Code §§34-30-19-1 to -4 (2012); Mass. Gen. Laws ch. 231, §85V (2012); N.J. Stat. Ann. §2A:62A-6 (2012); N.M. Stat. §41-12-1 (2012); N.D. Cent. Code §32-03-46 (2012); 42 Pa. Consol. Stat. Ann. §8332.1 (2012); R.I. Gen. Laws §9-1-48 (2012).
  38. See e.g. Wagenblast v. Odessa Sch. Dist. No. 105-157-166J, 758 P.2d 968, 969-72 (Wash. 1988).
  39. See e.g. Doyle v. Bowdoin College, 403 A.2d 1206, 1208 (Me. 1979).
  40. See e.g. Wolfgang v. Mid-Am. Motorsports, Inc., 898 F. Supp. 783 (D. Kan. 1995).

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