As the public’s awareness of sport-related head injuries continues to grow, athletic trainers in college sports programs could be at risk of lawsuits.
So says Steve Pachman, a lawyer at Montgomery McCracken Walker & Rhoads, a Philadelphia law firm.
Medical research on the causes of concussions, as well as how to properly treat them, has evolved at a rapid clip in recent years. But the actual care that injured college athletes receive on their campuses occasionally lags behind as colleges attempt to keep pace with the fast-moving research.
It’s precisely that gap, Pachman says, that has muddied the “standard of care"—the legal basis for determining whether a doctor, for instance, has been negligent in treating a patient—for head injuries. The lack of clarity, combined with society’s litigious streak, he says, could make sports-medicine staffs vulnerable to litigation.
“This is such a highly evolving, quick-moving field,” he says. “Universities have to stay up-to-date for the safety of their students.”
Staying current, though, has its challenges. Concussions can be complex injuries to assess and treat: Symptoms do not always emerge right away, for instance, and sometimes can persist for weeks or months. Treatment of the injury is highly individualized, and recovery time can vary greatly.
To be safe, Pachman advises, athletic trainers should err on the side of caution and follow the most-conservative protocols for determining whether an athlete is ready to return to practice or competition.
But within that cautious piece of advice lies a challenge: Many experts recommend the use of neuropsychological testing to determine a baseline for all athletes when they arrive on a campus for the first time. Those results, in turn, can be used down the road for comparison if an athlete ever suffers a concussion. But even the NCAA’s sports-medicine handbook hedges in its recommendation of such testing, stating that the baseline tests are “ideally” performed before a season begins.
In a courtroom, Pachman says, a simple word like “ideally” can be confusing to jurors—and potentially costly to defendants. Should athletic trainers use the tests, or not? If they do, are they better positioned to defend themselves if sued? If not, are they more vulnerable?
The answers are unclear. Still, Pachman says there are things colleges can do to make sure they are taking every precaution to avoid liability and protect their athletes’ health. They can:
- Comply with the NCAA’s new concussion policy, which bars athletes with diagnosed concussions from returning to physical activity until cleared by medical staff members. The policy also requires athletes to sign a statement in which they accept responsibility for reporting their injuries to the medical staff. (Click here to see the form that athletes in the Big Ten Conference must sign.)
- Create a concussion-management policy.
- Make sure athletes and coaches read and understand the NCAA’s concussion fact sheets.
Finally, he says, programs should consider designating a physician as the sole person to make the final call on whether an athlete can return to competition. Most guidelines say that decision can also be made by another medical professional, like a nurse practitioner or athletic trainer. But Pachman says that in a courtroom, rightly or wrongly, jurors are unlikely to view anyone other than a physician as qualified enough to make that judgment.
Pachman is familiar with the challenges colleges face in treating concussions among athletes: He represented one university in a recent high-profile case involving a football player who suffered permanent brain damage. In the lawsuit, the athlete’s family said sports-medicine personnel at the college had cleared the player to compete before he had fully recovered from a prior concussion. The university’s head athletic trainer, along with a nurse practitioner from the student health center, were both named defendants in the case.
In the year or so since that case was settled, Pachman says he has received phone calls from general counsels at several universities wanting to know if they should expect litigation as a result of injuries that athletes on their campuses had suffered. And he says he anticipates more.
“It’s really going to be interesting to see what happens over the next year or two,” he says.