Concussion Ruling Could Be a Game-Changer, Lawyers Say

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Steven M. Sellers

Volunteer high school coaches could end up on the wrong end of lawsuits if they don’t follow state-mandated concussion protocols, and a decision by the Washington state Supreme Court may be a template for suits in other states, sports lawyers tell Bloomberg BNA.

The state’s top court held July 6 that a jury must decide whether a high school coach’s failure to follow a concussion protocol law, known as the Lystedt Law, was so grossly negligent that he should be liable for a football player’s death ( Swank v. Valley Christian School , Wash., No. 93282-4, 7/6/17 ).

The decision is seen as the first in which a state supreme court ruled that a law intended to protect student-athletes from returning to play too soon after a concussion creates a cause of action against those who fail to comply with the law.

It also reflects the extent to which concussion litigation against pro leagues like the National Football League and the National Hockey League has filtered into secondary school and youth sports.

“This ruling is a tremendous win for the millions of athletes who suffer concussions each year,” plaintiffs’ lawyer Paul Anderson, of the Klamann Law Firm in Kansas City, Mo., said.

“It now gives teeth to an oft-criticized law that typically lacks any measure of enforcement,” said Anderson, who represents athletes with brain injuries and blogs about sports-related concussion cases.

Concussion diagnoses among adolescents have “increased dramatically,” according to a study published last year in the Orthopaedic Journal of Sports Medicine.

Researchers at the University of California-San Francisco noted a 143 percent rise among those aged 10 to 14 from 2007-14. Concussions for those aged 15 to 19 over the same period increased by 87 percent, fueling a 60 percent overall increase in patients younger than 65.

Standard of Care for Coaches

All 50 states and Washington, D.C. have laws that specify procedures to prevent and manage student-athlete concussions, including strict return-to-play limitations, according to the National Conference of State Legislatures.

“To my knowledge, this is the first state supreme court that has said that such a statute establishes the standard of care” for coaches, Matthew Mitten, executive director of the National Sports Law Institute at Marquette University Law School in Milwaukee, said.

“I wouldn’t be surprised to see this issue arise in other states that may follow this decision,” he said. “I think most courts would find it persuasive.”

Fatal Brain Injury

Andrew Swank played for the Valley Christian School football team, based in Spokane Valley, Wash., in 2009, according to the decision.

He was “hit hard on the head” during a game, suffered headaches, and was examined by Timothy Burns, a family physician based in Idaho. Burns advised Andrew’s mother to keep him out of contact sports for at least three days, the court said.

When the headaches stopped two days later, Burns signed a release authorizing Swank to return to football practice, and he played in a game the next day, according to the decision.

Swank’s play declined sharply during the game, and he seemed “confused,” prompting coach Jim Puryear to grab Swank’s face mask and scream, ‘What are you doing out there?’ according to the decision.

Swank was hit by an opposing player on his return to the game, staggered to the sideline, and died two days later, according to the decision.

Swank’s parents sued the school, Puryear, and Burns for negligence, but the trial court granted summary judgments to all three defendants.

The Washington Court of Appeals upheld the dismissals in 2016.

The state’s high court unanimously overturned that ruling as to Puryear and the school, but upheld the dismissal of claims against Burns on jurisdictional grounds.

Implied Cause of Action

Questions of fact exist as to whether the school and Puryear violated the Lystedt law, and whether Puryear was grossly negligent or reckless in his on-field conduct, the court said.

Such negligence would eliminate Puryear’s immunity from suit as a volunteer, the court said.

The law implies a cause of action against those who fail to comply with the protocol, the unanimous court said.

“It’s a good decision, both legally and as a matter of policy,” Mitten said.

Puryear noticed the decline of Andrew’s on-field play, just days after the youth had suffered a concussion, and that may be a key factor in the court’s revival of negligence claims the case, Mitten said.

“One the one hand, the law wants to create and incentive to volunteer, but on the other hand, we don’t want coaches to create an unreasonable harm,” Mitten said.

Protecting Schools, Coaches

Washington isn’t the only state with a concussion law that exposes school boards, schools, and coaches to liability for gross negligence that injures student-athletes.

Arizona, for example, affords immunity from civil liability unless “school council members or its employees are guilty of gross negligence or intentional misconduct.”

But the litigation window isn’t open in every state.

A Texas statute, for example, expressly bars a lawsuit against a school or its employees and preserves a volunteer coach’s immunity for liability.

That immunity includes “any cause of action or liability for a member of a concussion oversight team arising from the injury or death of a student participating in an interscholastic athletics practice or competition, based on service or participation on the concussion oversight team.”

Georgia also protects school boards, schools, and volunteers from liability “for any act or omission to act related to the removal or nonremoval of a youth athlete from a game, competition, tryout, or practice.”

Legislators in states with concussion statutes similar to Washington’s, however, may move to give schools and coaches greater protection, Anderson, the plaintiffs’ lawyer, said.

“Rather than seeking to protect athletes, some legislators around the country may promptly seek to amend their state’s concussion laws to expressly exclude an implied cause of action,” Anderson said.

Justice Charles K. Wiggins wrote the opinion, joined by Chief Justice Barbara A. Madsen and Justices Charles W. Johnson, Susan J. Owens, Mary E. Fairhurst, Debra L. Stephens, Steven Gonzalez, Sheryl Gordon McCloud, and Mary I. Yu.

The law offices of Paine Hamblen represented Valley Christian School and other defendants.

The Ahrend Law Firm, as well as the Markam Group represented Swank’s estate.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

For More Information

The decision is available at: http://src.bna.com/qw3

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law