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Student athlete concussions continue to be scrutinized aggressively by parents, school administrators, medical professionals, legislators, and members of the plaintiffs' attorney bar. A significant impetus for this is the U.S. media's coverage of high-profile concussion settlements involving both the National Football League (NFL) and the National Collegiate Athletic Association (NCAA). The media's scrutiny has also followed coverage of suits filed against the National Hockey League and even professional wrestling by former athletes who have sustained concussions. In addition, the medical establishment has been publishing the findings of various research institutes and national boards. Those findings often result in new guidelines concerning concussion protocols.
In this article we review the litigation landscape of concussions in student athletics and the latest claim and settlement activity. The availability of legal defenses and state laws are also explored. Finally, we consider the risk management and underwriting approaches that we have seen in the marketplace. Knowledge and attention to the concussion issue will only grow at the professional, amateur and school levels. That makes insurer knowledge and attention even more important.
At the time of this publication, the concussion settlement with NFL players is still pending the appeal of approximately 10 groups of plaintiffs. Nearly 200 plaintiffs have opted out of the settlement in order to pursue independent litigation against the NFL. Specifics of the settlement include an uncapped Monetary Award Fund to compensate for injuries; $75 million for a baseline assessment program to assess the condition of former players participating in the settlement; $10 million for a brain injury research and education fund; and up to $112.5 million for plaintiffs' attorney fees. After the conclusion of the 2015 NFL regular season, the league announced that reported concussions increased 58%, the highest increase in any of the past four seasons.1
The pending NCAA settlement includes $70 million to fund 50 years of medical monitoring for any athlete who has played contact or non-contact college sports and $5 million for concussion-related research. The NCAA has also agreed to change universities' concussion management and return-toplay policies. However, a potentially dangerous loophole in the NCAA's concussion policy permits a student athlete to be recruited by another school to play, even after the athlete has been disqualified due to concussions.2
The U.S. Centers for Disease Control and Prevention (CDC) estimates that 1.6 million to 3.8 million concussions occur in sports and recreational activities each year:3 "Among individuals 15 to 24 years of age, sports are second only to motor vehicle crashes as the leading cause of concussions."4 The most significant number of concussions resulted from football, followed by girls' soccer, boys' wrestling and girls' basketball.5 Despite these studies, the actual number of concussions may not provide a complete picture in part because parents, coaches and teachers often fail to recognize the signs of concussions.6
One survey revealed that unreported concussions ranged from 20% to 50% of college football, hockey, soccer, and rugby players.7 Passing out does not occur in the majority of concussions and the onset of symptoms may present slowly or after the actual event. A recent study revealed that when pre-adolescent kids get concussions, they still have impaired brain function two years later.8 Suggesting a potential gender gap, "researchers found women were more likely than men to continue to have memory deficits nearly three months after a traumatic brain injury."9
"Chronic Traumatic Encephalopathy (CTE) is a progressive degenerative disease of the brain found in athletes (and others) with a history of repetitive brain trauma, including symptomatic concussions as well as asymptomatic subconcussive hits to the head."10 The disease can lead to memory loss, depression and dementia, and it can currently only be diagnosed postmortem. 11 Doctors can diagnose CTE after death by "examining an abnormal form of tau protein in the brain and have confirmed cases in people as young as 17 and in athletes who played sports only through high school or college."12 CTE has also been found in non-athletes–including military service members–who experienced repetitive head impacts.13
Numerous deceased former NFL players and their families have donated the players' brains to science in order to aid research.14 Of the 91 former NFL players who donated their brains, 87 were found to have CTE, according to research by the U.S. Department of Veterans Affairs and Boston University in 2015.15 Overall, the study discovered CTE in the brain tissue of 131 out of 165 former players who, "before their deaths, played football either professionally, semi-professionally, in college or in high school."16 This includes several former NFL players who have committed suicide, such as Andre Waters, Dave Duerson, Ray Easterling and Junior Seau.17 Football legend and television personality Frank Gifford's family, after Gifford died at the age of 84, also revealed that he suffered from CTE.18
In late 2015 potentially significant advances in the diagnosis of CTE took place. At the National Institute of Health, the National Institute of Neurological Disorders and Stroke has awarded $16 million in grants to researchers–from Boston University, the Cleveland Clinic, Banner Alzheimer's Institute, and Brigham and Women's Hospital in Boston–to develop methods for diagnosing CTE during an individual's life.19 Additional studies are taking place in order to accomplish this same goal. Detection of CTE during life could significantly increase potential exposure for schools and youth sports leagues.
Another ailment most recently linked to concussions is a neurological disorder called "pseudobulbar affect" (PBA), which involves "sudden outbursts of laughter or crying in inappropriate contexts."20 A study of 7,000 former NFL players revealed that one-third had symptoms of PBA.
As concussions continue to receive national attention by the media, and advances in science continue, plaintiffs' attorneys across the nation are aggressively pursuing school districts and coaches on behalf of concussed student athletes. The crux of the allegations in these lawsuits involve multiple concussions, returning to play and/or practice too soon, negligent supervision, lack of an emergency medical response plan, and inadequate immediate medical response. Many of these lawsuits have been settled with the terms of the settlements remaining confidential; however, published settlements are known to include:
A parental waiver is a document that a parent is often required to sign that states that the parent, for him/herself and on behalf of the child, agrees to release an organization from liability for any injury that the child might suffer while participating in the sport or activity. While this defense is often raised in concussion lawsuits, it is becoming more probable that a court will not uphold said waiver and the civil suit for damages will be permitted to proceed.
In a recent California civil suit, a 13-year-old playing youth football was rendered a quadriplegic after he attempted to tackle an opposing player using an improper head-first tackling technique, which he claimed his coaches taught and instructed him to use. While the youth football league raised the parental waiver defense, the court questioned whether enforcing the Waiver and Release under the circumstances would violate public policy because it would remove an obligation to adhere to even a minimal standard of care or to release liability for future gross negligence.26
Municipalities and their employees have traditionally been immune from tort liability in civil suits seeking damages for personal injuries. The types of immunities vary by jurisdiction, and many states have enacted tort reform acts to alleviate immunity by providing exceptions or waivers, and capping damages where lawsuits were permitted. This erosion of governmental immunity seems to be progressing fairly quickly in light of the seriousness of student athlete concussions.
In more positive news for proponents of youth sports, a judge recently dismissed a class action lawsuit against the Illinois High School Association. The suit alleges that the association's concussion policies were negligent and insufficient to protect the state's football players. The judge ruled in favor of the association, "a nonprofit organization that oversees high school sports in Illinois, ruling that football players assume the risk of playing contact sports and that increased liability could harm high school football, potentially even causing it to be abandoned."28
While interesting, it remains unclear as to whether the judge should have factored his personal opinions about football into the ruling.
All 50 states and the District of Columbia have now enacted laws addressing student athlete concussions. Most of the laws provide the following: "1) immediate removal from play is required when a student-athlete exhibits indications of having sustained a concussion; 2) same-day return to action is prohibited; and 3) return to action is permitted only after the athlete has been cleared by a licensed medical professional (the definition of which varies wildly between state laws)."29 Most of the laws also provide that coaches complete an education program and require student athletes and parents be given concussion information materials.30 While these laws appear to protect student athletes, new studies highlighting extended periods of impaired brain function post-concussion may establish that these laws are ineffective. Members of the plaintiffs' bar may argue that these laws are insufficient as concussed student athletes are ultimately allowed to return to the field of play.
The state laws also almost universally fail to require baseline testing for student athletes. The decision to conduct baseline testing is left to schools and other youth organizations. When baseline testing does occur, a third-party vendor is often retained to conduct it. The CDC defines baseline testing as a “pre-season exam” that is used to "assess an athlete's balance and brain function (including learning and memory skills, ability to pay attention or concentrate, and how quickly he or she thinks and solves problems), as well as for the presence of any concussion symptoms."31
When a student athlete is suspected of having a concussion, the results from the tests pre-injury can be compared to a similar test administered after a suspected concussion occurs. The CDC notes that some baseline and concussion assessment tools may be inappropriate for student athletes younger than 10 years old.32 Furthermore, the CDC advises that only healthcare professionals should administer baseline tests. One potential drawback of baseline testing is the fear that a student athlete could falsify his/her results in order to establish a lower baseline for return to play. Additionally, several of the vendors who conduct the tests have been accused of providing insufficient tests and of being coordinated by people with improper credentials.33
In late 2015 various national news media outlets and commentators praised the Michigan High School Athletic Association for utilizing the "gold standard" of concussion tests. NewsWire.net reported: "The [two-year] Michigan pilot [program] includes concussion education that exceeds the state concussion laws, as well as pre-season concussion baseline testing, an on-the-field concussion detection test, recovery protocol with symptom tracking, and automated reporting for medical personnel. All the tests and tools are integrated into one online and mobile platform created by [a] neurologist."34 Should the program succeed, and continue to receive media focus, it has the potential to become the template for programs across the country.
A private high school in Los Angeles is requiring all 1,270 of its students, regardless of whether they participate in sports, to undergo baseline testing.35 The school principal explained that non-athletes are also being given the baseline test due to the escalating number of students "being diagnosed with concussions from activities such as skateboarding and snowboarding."36 The baseline testing allows the school to know when a concussed student is ready to return to class or game participation.37
Many commentators have speculated that the future of youth football and other contact sports may be in doubt. Pop Warner football participation declined 10% between 2010 and 2013.38 A school district in a Missouri suburb disbanded its football team over safety concerns and several others around the country have followed suit.39 Beyond football, the United States Soccer Federation has adopted a new policy prohibiting children younger than 11 years of age from "heading balls."40
As the science of concussions continues to advance, a test to detect CTE in the living may be on the horizon, and as concussion lawsuits continue to resolve for increasingly higher dollar numbers, some legal scholars and other prognosticators have forecasted that concussions may become the "next asbestos." Advancing this argument is the possibility of baseline testing becoming commonplace in all student athletes and students overall. The utilization of baseline testing by schools and other youth sports leagues is a balancing act between the health of children versus the risk of lawsuits. While baseline testing can certainly help diagnose and treat a student concussion, it may also provide a roadmap for members of the plaintiffs’ bar to bring lawsuits against schools, coaches and other youth organizations. Information obtained in a baseline test can be exploited in a lawsuit to bolster allegations that a student athlete’s concussion was improperly handled. A recent study at Texas Christian University may also aid the plaintiffs' bar as it discovered that routine head impacts experienced by the school's football players "resulted in a measurable increase in a biological marker of head trauma called serum Neurofilament Light or serum NFL."41
Another potential area that may receive scrutiny and become an area of litigation is the type of playing surface. A report from the Concussion Legacy Foundation noted the connection between head injuries and poorly maintained fields, including those made of synthetic turf. The report notes that 15.5% of concussions in high school sports occur when players hit their heads on a playing surface.42
Concussion care clinics are also on the rise across the U.S.43 Instead of a concussed student athlete presenting to an immediate care facility or hospital, athletes may be able to visit a specialized local clinic. However, these clinics could provide inconsistent findings as to the care and treatment necessary. Student athletes, accompanied by parents, may visit one or more clinics until they receive the desired diagnosis so the students can play sports again.
As youth concussion litigation continues to increase, carriers will continue to debate the viability of writing youth sports. In order to limit exposure, carriers may consider these provisions:
While we are aware that these policy provisions are being discussed in the marketplace, it is unclear whether they are being utilized by any carriers at this time. Concussion litigation is also crossing into personal lines and can expand the "playing field" for potential litigants even further.
A California superior court judge recently held that a former high school football player can seek punitive damages against a teammate who allegedly gave him a concussion during a practice drill that resulted in helmet-to-helmet contact.44
"Beginning in the fall of 2015, the Florida High School Athletic Association became the first governing body in the U.S. to mandate that all high school athletes in all sports complete a course on concussions as a prerequisite to competing for their schools. The free online course, Concussion in Sports—What You Need to Know, was developed by the National Federation of State High School Associations."45 Such courses could aid a school in defending a concussion suit and/or alleviating potential damages by establishing that the school acted appropriately in trying to prevent concussions. At the University of Texas Southwestern Medical Center, the Texas Institute for Brain Injury and Repair has started a concussion registry to study brain injuries, and this registry could also bolster the defense in a concussion lawsuit in the same manner as the online courses: "The registry, known as CON-TEX, is designed to capture comprehensive, longitudinal data on people age five and over who have suffered sports-related concussion or other forms of mild traumatic brain injury."46
Furthermore, school districts may begin examining the number of football games played each season in order to limit the number of hits. At the present there are no national standards, and individual states can decide how long football seasons can be. Thirty states allow 14-plus football games a year.47 In addition, the use of helmet sensors to measure the number of hits per game is being considered by various school districts, despite the high cost.48
Looking ahead, we expect to not only see an increase in the frequency of sports-related concussion claims but also in the number of personal injury claims, auto claims, and workers' compensation claims arising from concussions and/or brain injuries. Whether this will ultimately mark the end of certain youth sports–as we know it–will continue to be debated.
