Youth Sports Head Injuries: Can I Bring Claims or Litigation?

 

Sports-related brain injuries are no joke, as shown by recent high-profile litigation brought against the NFL. The former players with traumatic brain injuries who brought the lawsuit argued that the NFL hid from them the risk and seriousness of brain injury. They succeeded in convincing a federal judge, who approved a settlement awarding former players over $900 million dollars in concussion-related lawsuits earlier this year.

The risk of head injury to NFL players is high; almost 30% of NFL players will develop Alzheimer’s or moderate dementia in their lifetimes, due largely to football-related concussions. The consequences for these injuries can include not just neurogenerative disorders but also mental illness and suicide.

These risks are not limited to professional football players. Amateur sports players like high school students are at a greater risk for head injuries. The Centers for Disease Control reports that children (ages 5 – 18), not pro or college athletes, sustain the majority of sports-related injuries seen in the hospital (68%). At these ages, symptoms include: impaired thinking, decreases in memory functionality, and emotional or behavioral changes. These problems hinder (to varying degrees) school work, social growth, and college planning.

Some experts are predicting that this high number of youth sports-related head injuries is the perfect breeding ground for the NFL players’ successful litigation to spark a rise in head-injury lawsuits and claims against amateur sports organizations, including junior and high schools. But would these claims and litigation likely reach a settlement?

Assumption of Risk

In most cases, it is difficult to bring claims or a lawsuit for a sports-related brain injury because of the assumption of risk: the assumption that people involved in a sport have acknowledged and accepted the risks of that sport, generally in an implied way. Assumption of risk prevents an injured person from recovering damages in most situations on the basis that it is impossible to play most sports without risk of injury.

Utah law specifically protects children from head injuries and schools from injury claims through the Protection of Athletes with Head Injuries Act. Utah schools require parents to sign a copy of the school’s head injury policy, demonstrating they are aware of and accept the risk of head injuries that come with certain sports. The law also requires that schools remove any player with a head injury from further play until he or she has healed. The protection this law affords youth athletes can still be thwarted by other parties, however, including:

Medical practitioners: If a doctor failed to properly diagnose a head injury and allowed a child to return to play when he was still injured, a medical malpractice claim could hold the doctor responsible for worsening of the injury.

Coaches: If a coach missed the signs of a concussion or was lax in protecting an injured child from play, the child’s injury could worsen and lead to more brain problems down the road such as post-concussion syndrome. A homeowner’s insurance claim could hold the negligent coach responsible.

Schools, depending on the case: If you can prove that the responsible school or other organization

  • was guilty of “willful or malicious conduct,” e.g. someone became unexpectedly violent
  • was extra negligent, e.g. hadn’t hired enough trainers, hadn’t taken care of faulty or defective equipment, or hid certain risks from parents,

then a claim or lawsuit could still be brought against the school, even if the parents signed an agreement to the risks. In order to bring a sports injury claim, you will have to work with the insured party’s claims adjuster. He or she will ask for a recorded statement about the incident. Giving a recorded statement can be a balancing act, because you must carefully word the facts to show that your case is an exclusion to assumption of risk and the incident was not your fault or the result of just negligence.

When deciding whether to bring a claim or a lawsuit, realize that signing an agreement acknowledging risk makes it harder to prove exclusion to assumption of risk and tends to drag out litigation for a long time, making it expensive and difficult. However, since these are case-by-case situations, it is important to talk to an attorney about the specifics of your situation.

While head injuries might seem commonplace, if the physical effects are serious enough and the situation leading up to it was the fault of a specific person or organization (not just the inherent risk of a sport), there are options to receive legal compensation. To find out what your options are, you can contact Utah’s Preferred Personal Injury Law Firm today.

Recovery

While legal matters might drag on, there are actions you can take to speed up your child’s recovery from a brain injury.

1. Be patient in recovery. Don’t let your child return to play too early.

Though this may seem like a counter-intuitive way to speed up recovery, allowing a child to return to play when he or she is not yet ready can expose him or her to further head injury, which will take longer to heal and have longer-lasting impacts.

“If I knew then what I know now, I would have waited longer to go back to cheerleading after my first concussion. After my second concussion, I wouldn’t have gone back at all. For others who are going through this, I want them to understand that a concussion can affect your whole life.”  one young woman who sustained a head injury cheerleading in high school, said.

Those who suffer one head injury are more likely to suffer another one in the future. Head injuries, even concussions (which some coaches and parents wrongly think should be “toughed out”) are serious injuries that require real, on-going medical attention.

To find out more information, refer to the CDC site which provides a helpful online fact sheet that includes a schedule to help athletes return to activity gradually.

2. Make the most of your health provider.

Don’t let your child return to play until the doctor says it’s okay, and be sure to communicate with the doctor–who ought to be experienced in evaluating concussions–about all of you child’s symptoms, even mental and emotional ones like depression and anxiety, which can be part of post-concussion syndrome.

Before a doctor’s visit, it can’t hurt to write down your child’s symptoms to report to the doctor or to write down questions to ask. You could also bring along a friend or family member to help soak up information the doctor gives you. These and more ideas to make the most out of doctor visits can be found on the Mayo Clinic website.

 3. Tell your child to be open about symptoms.

Sometimes, when teenagers or children know they will be pulled out of a game for a head injury, they try to hide their symptoms from parents, doctors, and coaches. They think in the short term, and they don’t want to miss a game or be seen as a weak player.

However, hiding symptoms is very dangerous. Make it clear to your child that he or she must be open about symptoms in order to recover fully and play more in the long run. Consider sharing with your child a story featured on the CDC website about one high school junior, Tracy, who hid her symptoms and as a result was forced to sit out more than just a few games.

After hitting her head during a high school basketball game, Tracy recognized she was suffering the symptoms of a concussion, but when another game came up two days later, she didn’t tell the trainer about the dizziness and nausea she was feeling. “I didn’t want to tell the trainer ’cause he would sit me out of the game. So I kept quiet, but I shouldn’t have played,” Tracy said in hindsight.

After the game, Tracy passed out and was taken to the hospital. The concussion symptoms lasted through her junior and senior years of high school, causing her to fall behind in school. Tracy even had to learn to walk again to overcome her difficulties with balance, and it took her three years to finally feel recovered, although some symptoms still persist.

Tracy’s message to other teens: “A concussion is a serious injury. If you think you have a concussion, don’t hide it, report it. Take time to recover. ‘It’s better to miss one game than the whole season.'”

Photos courtesy of (from top to bottom): Bil KlebJim Larrison, and Rusty Ferguson

Sources:

The Rising Score of Youth Sports Head Injury Claims

http://www.propertycasualty360.com/2013/08/29/invisible-killer

http://www.legalmatch.com/law-library/article/defenses-to-tort-liability-assumption-of-risk.html

Filing Sports Injury Claims for Compensation

http://pediatrics.aappublications.org/content/126/3/597.full.pdf+html

http://www.cdc.gov/concussion/headsup/youth.html

Photo copy right to BrokenSphere

Ken Christensen
Partner, Founder at Christensen & Hymas
Ken Christensen is the founding partner of Christensen & Hymas. He is an avid cyclist, loves baseball, and enjoys spending time with his family in the outdoors.

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