Schools should heed concerns over sports' brain injuries

As states make new laws on sports-related head injuries, districts and schools must adapt and operate new protocols.

Sports-caused brain injuries have garnered quite a lot of public attention lately. Have you seen the Will Smith movie Concussion? In 2015, a federal judge approved a class-action settlement between the NFL and thousands of former players regarding chronic traumatic encephalopathy, In Re NFL Players Concussion Injury Litigation, 307 F.R.D. 351 (E.D. Pa. 2015). University of Wisconsin’s Chris Borland gave up his $3 million NFL contract with the San Francisco 49ers due to his concern about the potential for concussion brain damage. Reports of concussions caused during professional athletic play are common. But concussions can and do happen elsewhere — in everyday life and in school athletics.

The Sports Concussion Institute defines concussion as:

A complex pathophysiological process that affects the brain, typically induced by trauma to the brain. It can be caused either by a direct blow to the head or an indirect blow to the body . . . . Symptoms usually reflect a functional disturbance to the brain, and may include physical (e.g. headaches, nausea), cognitive (e.g. difficulty with concentration or memory), emotional (e.g. irritability, sadness), and ‘maintenance’ (e.g. sleep disturbances, changes in appetite or energy levels) symptoms. A concussion is considered a brain injury. (www. concussiontreatment.com)

Concussions in youth sports are common, and the statistics are a bit surprising. According to the Centers for Disease Control and Prevention:

33% of all sports concussions happen during practice, not competition;
46% of all sports concussions occur during high school football;
20% of all high school athletes will sustain a concussion during a season; and
In soccer, the concussion rate for girls is 68% higher than for boys.

The reporting of concussions during high school sporting activity has increased dramatically. According to the National High School Sports-Related Injury Surveillance Study, in 2005, concussions represented 9.1% of reported injuries; in 2013, they represented 23.1% of the injuries. During this timeframe, many states, schools, and sports leagues created policies and response protocols on concussions in youth and high school sports, which may have increased the number of reports. See the report: http://bit.ly/1VPPbfC

The first law

In 2009, the state of Washington passed the Zackery Lystedt Law, the first law concerning concussions in K-12 schools (2009 Wa. ALS 475). The Lystedt law requires medical clearance of youth athletes suspected of sustaining a concussion before sending them back in the game, practice, or training. The law was named for Zackery, who was permanently disabled after sustaining a head injury while playing football at age 13. He was returned to play 15 minutes after the first injury and sustained a second head injury. As a result of these successive concussions, he was in and out of a coma for three months, with years of disability and treatment ahead.

Shortly after this, Oregon passed Max’s Law (OAR 581-022-0421), which requires school districts to implement concussion management guidelines for student athletes. Now all states and the District of Columbia have statutes, usually referred to as return-to-play laws, regarding youth sports concussions. Some states have more protective requirements than others. (See National Conference of State Legislatures, Traumatic Brain Injury Legislation, http://www.ncsl.org/research/health/traumatic-brain-injury-legislation.aspx)

Unfortunately many of these statutes, like the first two, are named after injured children. Most statutes require school districts, state departments of education, local school districts, and/or the state interscholastic athletic association to develop guidelines and protocols for recognizing sports-related concussions and returning young athletes safely back to sporting activities. Statutory requirements vary but most typically require:

Educating coaches, parents, and athletes about concussions, symptoms, causes, and effects;
Removing youth athletes from the playing field immediately when a concussion is suspected;
Returning an athlete to play or practice only after at least a 24-hour recovery and after receiving permission from a health care professional; and
Ensuring that parents and the youth athletes have provided clear informed consent to play.

On the federal front

Congress has considered — both in the Senate and House — measures similar to what states already have passed that would require local schools to create and implement formal concussion management plans, notify parents, and require written medical releases before student athletes are returned to play or compete after suffering a concussion.

This issue has played out in litigation involving school-age athletes as well. When students (and parents) file a personal injury claim against a public school district, they most often run afoul of the state’s immunity to civil action. They can prevail if they show that the state created the danger through which they were injured, showing:

The harm caused was reasonably foreseeable;
The state actor acted with a degree of culpability that shocks the conscience;
The state actor and the plaintiff had a special protective relationship; and
The harm was caused through an affirmative act of the plaintiff, not merely a failure to act.

Two examples

On Nov. 1, 2014, Sheldon Mann was at his high school football team’s practice when he was hit on the head. He told the coaching staff he did not feel well. They sent him back out to continue practice, did not perform a concussion assessment, did not send him to the trainer, and did not notify his parents of the injury. Later on, during the same practice, he was hit again on the head. This time, he exhibited physical symptoms of a brain injury. From that time on, he suffered serious and permanent effects of brain injury, including headaches, hallucinations, poor short-term memory, seizure activity, and brain dysfunction. The district did not have clear policies on protecting a student athlete from injuries, nor did it have a return-to-play policy. In litigation against the coach and the district, the court allowed the case to go forward in spite of a motion to dismiss, finding that the alleged facts did state a possible claim of action against both the coach and the district. Mann v. Palmerton Area School District, 33 F.Supp.3d 530 (M.D. Pa 2014).

On Aug. 20, 2012, M.U. was playing in a preseason high school soccer scrimmage. During the game, she jumped to head the ball and collided with another player, causing a blow to her head. One of her teammates told her coach that she had been hit in the head, but the coach did not pull her from the game. M.U. played the remainder of the game, experienced other collisions, and headed the ball in other plays. She developed a headache on the bus ride after the game. Two days later, her mother took her to the hospital where doctors confirmed a brain injury. M.U. continued to have anxiety, difficulty concentrating, memory loss, and headaches. She missed more than 80 days of school that academic year due to her symptoms. In litigation against the coach and the district, the court dismissed the case finding that the alleged facts did not state a possible claim of action. M.U. v. Downingtown High School, 2015 U.S. Dist. LEXIS 54765 (E.D. Pa. 2015).

The differences

The difference in the two cases is that the court in M.U. found that the coach’s and district’s actions were not so severe as to “shock the conscience.” The M.U. court considered the claims in light of the Pennsylvania Safety in Youth Sports Act and still found there were no affirmative steps taken by the coach and district; they failed to act but did not affirmatively take steps that caused M.U. ’s injuries. In Mann, the coach observed physical symptoms of a possible brain injury and still affirmatively sent the athlete back into play. In M.U., the coach failed to remove the student from play but did not return the student to play in spite of observing symptoms of a possible brain injury. The difference between an affirmative step and failure to act may appear slight, but it is critical.

Considering the possibility of severe injury to students, districts and employees should carefully reconsider their policies and practices on children’s accidental brain injury. Consistent with the return-to-play requirements in the statutes, when an injury occurs that may have caused brain trauma, schools should exercise caution.

Citation: Underwood, J. (2016). Under the law: Schools should heed concerns over sports’ brain injuries. Phi Delta Kappan, 97 (6), 74-75.