Why Will Smith’s Role in "Concussion" Matters for Insurers
In Concussion the actor Will Smith portrays a forensic pathologist who takes on the National Football League (NFL) in the U.S. as it tries to suppress his research on brain damage suffered by professional players of American football. The movie highlights the discussion on concussion - one of the most common types of traumatic brain injury (TBI) in sports.
Much like the movie, which has just made its way across the pond, the debate on concussion in sports has reached Europe. This blog focuses on the situation in France and looks at the issue, the prevention measures taken so far and how liability is assigned.
Head Injury Assessment (HIA) Principles
- Any clear or suspected signs or symptoms of concussion MUST result in immediate and permanent player removal
- If the signs or symptoms of concussion are unclear then a player can be removed for an HIA, which is a 10-minute off-field assessment - the HIA does not diagnose concussion, it identifies a suspected concussion
- If a player is suspected of concussion following a pitch-side assessment supported by the HIA they are removed permanently from the match
- Any player who undertakes an HIA (irrespective of the result) must undertake a further clinical assessment supported by the SCAT 3 immediately after the match and again at 36-48 hours - it is during this period that the diagnosis occurs
- Any player with a concussion must undertake a supervised graduated return to play protocol to manage safe return to competition
Some sports have become extremely physical, and observers have noticed a rise in TBIs. In 2008 during the 3rd International Conference on Concussion in Sport in Zurich, concussion was defined “as a complex pathophysiological process affecting the brain, induced by traumatic biomechanical forces.”1 Several researchers have shown that concussions can be caused “by a blow to the head, face or neck or a blow elsewhere in the body with an impulsive force transmitted to the head.” However, none of the findings has demonstrated that repeated concussions or sub-concussive blows can lead to Chronic Traumatic Encephalopathy (CTE) - a degenerative brain disease that can only be diagnosed post mortem. The question whether there is a causal link between concussions and neurodegenerative diseases, such as Alzheimer's and Parkinson’s, still remains.
For more than a decade, millions of viewers have witnessed athletes’ shocking falls and accidents, as the media increased its live sports coverage. Several sports popular in Europe involve contact and the risk of falls; for example, rugby, football, boxing, cycling and combat sports. The risk has also been exacerbated by the considerable increase in the frequency of games - with national, European and international tournaments, more matches are being played.
In 2012 the International Rugby Board (now World Rugby) set up a protocol for traumatic injuries to protect players who suffer concussions during games. The Head Injury Assessment Protocol was reinforced in 2014 and adopted in August 2015.2 World Rugby also launched a Concussion page on its website to provide various prevention measures and advice.3 The fact that the information is available in eight languages shows the significance of the issue.
Many online resources explain concussion management and prevention in videos that provide information on protocol and equipment. Unfortunately, there is no clear evidence that the current protective gear can prevent concussions.
In France leading neurologist Dr. Jean François Chermann points out in various articles that it is important to scan the brain after the death of a player to provide a link between concussions and CTE.4 According to Chermann, in some cases it might be likely that the disease would have occurred even without the injury, but the trauma due to sport could have activated it earlier. The fact that drug or alcohol consumption, or other illnesses, could also contribute to the development, are factors that are rarely mentioned in recent publications.
In the U.S. numerous former NFL players have donated their brains to science after their deaths in order to diagnose CTE. (My colleagues Jeffrey Weisel and Charlie Kingdollar will be looking at how student athlete concussions are affecting school liability in the U.S. in a blog in the near future.)
From a French legal perspective, the liability for an accident would be based on Civil Code (CC) provisions:
- Liability for a specific accident during a game or training could be determined on the basis of Article 1384 al.1 CC.
- Negligence of an official of a club or a federation could be established on the basis of Article 1384 al.5 CC.
Under those provisions, the liability of the club can only be established in the following circumstances:
- The accident is due to a specific incident.
- The accident can be attributed to one of the players (even if the player cannot be identified).
- Any rule has been violated.
The provisions also indicate potential liability in other circumstances:
- A doctor or a referee doesn’t apply the standard protocol.
- A referee doesn’t stop the game or a coach doesn’t replace a player who has become the victim of a traumatic injury.
In the two instances above, the insurance policy of the club, federation or doctor could be triggered.
With a disease, players could contend that repeated concussions or sub-concussive blows were the cause of their illness. However, proving the direct link to a specific incident is difficult to determine as long as researchers are still unable to determine the precise cause in a living person - and currently CTE can only be diagnosed after death.
Gen Re is analyzing how the topic is developing in various markets and evaluating the potential consequences for the insurance industry. No doubt, for insurers and athletes alike, prevention should always be part of the game in order to reduce the number of accidents and their consequences.
- Consensus Statement on Concussion in Sport: the 3rd International Conference on Concussion in Sport held in Zurich, November 2008, & 4th Conference, 2012.
- Ça devient limite, L’Equipe, April 3, 2013. http://www.lequipe.fr/explore/rugby-jeu-de-massacre/pdf/CHAP00-ARTICLE.pdf.
- “Rugby, jeu de massacre”, L’Equipe, December 15, 2013. http://www.lequipe.fr/explore/rugby-jeu-de-massacre/.