Sudden Impact: Liability for Sports Related Concussions
I have been asked to post a copy of the article I wrote for the December 14, 2012 issue of The Lawyers Weekly magazine.
Representing Injured Athletes in Canada
Nothing went well for the Detroit Tigers in the World Series, but it could have been worse. I’m talking about game 2 when Tigers pitcher Doug Fister took a line drive to the head from Gregor Blanco.
Fister was assessed by his trainer and coach as the umpire looked on and was allowed to return to the mound. Days later the Tigers advised Fister had undergone a series of tests that confirmed he had no signs or symptoms of concussion.
While concussions are somewhat of a rarity in baseball, they are far more frequent in contact sports like football and hockey. The recent plight of Sidney Crosby did a great deal to raise public awareness of the effects of concussions.
What is a concussion?
Hockey Canada defines a concussion as a brain injury caused by the impact of the brain against the inside of the skull. The impact can lead to physical symptoms such as headaches or dizziness, cognitive symptoms such as lapses in memory or concentration, or emotional symptoms such as depression.
Prevalence of Concussions
I think it’s fair to say public awareness of the potential for concussion in sports is getting better. Most athletes (and parents) recognize the risk of getting a concussion and are willing to assume the risk since it is “part of the game”.
What is lacking, I think, is an understanding of the prevalence and potential severity of concussions in hockey and other amateur sports.
The statistics are rather shocking. A recent study, the Hockey Education Concussion Project, determined more than 25% of the minor hockey players studied suffered a concussion in the course of one season.
Second Impact Syndrome
Studies have shown the effects of concussion become worse with each subsequent injury, requiring longer recovery times and causing more significant symptoms. Brain injury professionals use the term Second-Impact Syndrome (SIS) to refer to what happens when someone receives a second blow before the symptoms of an initial concussion have resolved. SIS causes the brain to swell and is potentially fatal.
Sports Concussions Unique?
The average person is unlikely to engage in conduct that repeatedly exposes them to a risk of concussion.
So while the injury or insult is that same, I would suggest concussions in sports are unique because of the increased risk of SIS from cumulative concussions.
But lots of players, like Doug Fister, get hit in the head without being (seriously) injured. How do you know when a player has suffered a concussion?
Fortunately diagnosing concussions has become easier. There are a number of simple tests available for coaches/trainers to assess whether an athlete has suffered a concussion following a collision.
More elaborate tests like the Immediate Post-Concussion Assessment and Cognitive testing (ImPACT) use a computerized system to measure baseline cognitive abilities of athletes so they can be compared following contact.
These tests cannot be used to definitively diagnose or rule out concussion, they do allow teams to quickly assess players at risk to determine if they should be sent for further analyses or can be safely allowed back into play.
Duty of Care in Sports
For at least 30 years courts in Canada have recognized sports teams owe a duty to take care to prevent players from being exposed to unreasonable risk of injury. See for example, Robitaille v. Vancouver Hockey Club Limited  CanLII 532 (BCCA).
There is no doubt a team and coaches owe a duty of care to athletes. If there is a breach of the duty and it results in injury there may be grounds for recovery.
In assessing risks the courts usually consider the following factors:
1. Severity of the risk;
2. The chances of the risk resulting in an actual injury; and
3. The foreseeability of the risk.
Difficult to Recover
While there are a number of Canadian cases which have confirmed a duty of care owed by teams and coaches to athletes; it can be difficult for injured athletes to recover without proof of intentional conduct. See for example the various reported decisions in Moore v Bertuzzi.
It has been suggested in several cases in Canada that the basic test for negligence; subjecting a player to an unreasonable risk of harm; is intrinsic in sports where vigorous contact is a necessary element of the sport (hockey, football, boxing etc.). In other words, the risk is just “part of the game”.
Consequently, injured athletes often find it difficult to recover compensation for sports related injuries on the basis of volenti non fit injuria.
Potential Avenues to Explore
Therefore I offer the following comments to plaintiff counsel when investigating a potential claim for an athlete who has suffered a minor traumatic brain injury (or worse) due to concussion.
Duty of care: If the league or team is aware of the risk of concussion but chooses not disclose that information to athletes or parents, the league/team may have breached its duty of care to the players.
Challenge assumption of risk: Would a reasonable parent or student athlete consent to a risk of concussion if they knew the risk of suffering a brain injury during the season was as high as 25%?
Training: Are the coaches trained in identifying the signs/symptoms of concussion?
Baseline testing: Does the league/team conduct baseline testing of athletes before the season in order to make it easier to identify if there has been deterioration in function after a collision?
Sideline testing: Does the league/team employ medically validated concussion tests?
Concussions are a serious injury that can have long- term, potentially devastating, effects. With careful investigation lawyers can increase the odds of scoring a win for injured athletes.
I have been representing survivors of traumatic brain injury for 22 years. After spending years volunteering with the Brain Injury Association of Nova Scotia I realized there is a real lack of public awareness about traumatic brain injury claims.
So I decided to write a book to try to help educate the public and to provide information to brain injury survivors, and their families, about the legal issues surrounding traumatic brain injuries.
Brain Matter: The Survivor's Guide to Brain Injury Claims is now for sale on Amazon.com.
I'm donating all the sale proceeds from Amazon.com to BIANS.
If you use an e-reader, they even have a version for Kindle.