Cracking Skulls

Traditionally, a high school sports personal injury lawsuit has been difficult to maintain against an educational institution. Besides issues of public entity immunity and damage award limits or caps, an aggrieved high school student-athlete faces many challenges to a recovery.

In classic cases, the elements of common law negligence are difficult for a plaintiff athlete to establish. Given the nature of sports, a breach of duty on the part of a school or coach is difficult to show when common sense dictates that sports accidents just simply happen without negligence. The inherently dangerous aspects of sports easily create a formidable assumption of the risk defense for these voluntary activities where the chance of an injury is clearly known. It is reasonable to assume that contact sports like football, soccer, and lacrosse can produce a wide array of accepted injuries such as fractures, sprains/strains, and lacerations.

Given this landscape of apparent lawsuit insulation and the legal advantages that high school sports enjoy, why are there major storm clouds over athletics? Why are insurers contemplating whether coverage for high school sports is an acceptable risk? Will lawsuits involving professional athletes affect the viability of high school sports in the near future? With the limited resources that high schools possess, is it reasonable to expect that public schools will be required to have National Football League-style concussion monitoring to avoid being a target for litigation? Will the costs of such advanced protocols, such as having a neurologist on the sidelines, be financially crushing to the future of youth athletics?

The explosion of concussion lawsuits has created a clear and present danger for the future of high school sports. The notoriety of the NFL concussion case with its tenuous $765 million settlement has put a spotlight on concussion actions brought by many former stars. In addition, publicized cases involving former National Hockey League (NHL) players and NCAA football players have increased questions on whether a head injury constitutes a preventable risk.

This concept of a concussion being a preventable risk is the critical issue facing high school sports of all kinds—not just football. Consider the view of Michael Hausfeld, plaintiff’s counsel for certain NCAA athletes, as quoted to AL.com: “If you really believe the issue of concussions needs to be addressed, then it needs to be addressed on all levels…high school has the greatest population of young athletes and, so far, nobody has paid attention on how to get all this monitoring and oversight from the NFL to the NCAA to the high school.”

As a threshold decision, it’s clear that it is a parent’s choice to allow a child to participate in a sport where a concussion can occur. The science of concussion injuries and chronic traumatic encephalopathy (CTE) has grown exponentially over the last decade. No longer is “getting your bell rung,” considered to be a badge of honor or something to simply walk off. We all know that no sport can prevent a concussion in every conceivable circumstance; accidents and injuries are a part of sports. Thus, a concussion is a real risk facing high school teams, coaches, and athletes.

In my sports law endeavors, I have been privy to discussions from insurers and brokers involved with public entities that have expressed concerns that CTE actions will require creating policy exclusions for head injuries sustained in high school sports. The specter of uninsured high school student-athletes bringing concussion-related suits cannot be ignored as a major risk and potential large loss. Of course, an “uninsured” student also can vary from state to state based on mandatory insurance laws and the Patient Protection and Affordable Care Act.

While policy exclusions may become a necessity to manage the risks that sports concussions present, there may be other solutions to insulate high school sports from litigation. At least 33 states limit the monetary damages that may be recovered in a judgment, including banning punitive damages. Traditional protections of sovereign immunity have always applied to a discretionary function of the state and its public employees. If the standard for high school athletics is a professional sport test to determine if a player is “ready to play” in all cases, then the costs could place many athletic programs in jeopardy. However, if states move to place strict damages caps for high school athletics beyond what may exist, the risk could become more manageable.

We know that insurers can better evaluate and price the risk for a known limit should a public entity seek to insure a damages cap. In addition, high schools should use these saved resources to implement baseline testing for all student athletes as an important protection from a repeat concussion. Once baseline testing is used, a decision to return to play will become less discretionary and more scientific—and a lot less risky.

Some insurers are beginning to offer a pilot program of excess coverage for high school players. Of note, Chartis recognized that almost 250,000 children between the ages of 10 and 19 years old were treated for concussions in emergency rooms in 2009, an upward trend in youth head injuries. The insurer, in turn, wrote a policy that provided $25,000 in excess coverage (with no deductible) over a student athlete’s parent-provided primary coverage. The insurer also offered training for schools and parents on concussion recognition and early intervention. According to Chartis, it estimated that 92,000 high school athletes suffer concussions every year.

Even with insurers developing programs designed to meet the challenges confronting athletics, the imminent storm of high school concussion lawsuits might be closer than we think. Lawsuits brought by injured athletes are now being filed across the country. Recently, ESPN.com referred to high school sports litigation as a “ticking nuclear bomb” in football. The sports network cautioned that if “public school districts and colleges that are already in the red start paying brain-damage awards, they’ll stop sponsoring football.” It’s conceivable that other contact sports would soon follow.

However, most importantly, ESPN recognized that when tragedy happens, distraught individuals look for a party to sue. There is no question that football and other contact sports, in their extremes (and in statistically rare cases), can produce horrifying and life-changing injuries. If these contact sports are to survive, they will need more statutory protection from states to withstand a potential tidal wave of litigation. In addition, sports programs must restrict and reconsider potentially dangerous drills for kids who could sustain head and spinal injuries, such as the “Oklahoma Drill” in which players smash helmets together. Schools must understand and take action to protect a child’s developing brain, as an early concussion can have devastating results in some cases.

While litigation involving high school players can be found in states from California to Louisiana and beyond, the very recent case filed by William Croce should be of paramount interest to public entities. According to NBC News and court filings, Croce was a football player at the West Chester East High School in Pennsylvania. He claims that he sustained a concussion during a game and complained to his coaches that he didn’t feel right. According to Croce, the coaches failed to evaluate him with a concussion protocol, and he was put back into the game. Once back on the field, Croce was hit again and knocked unconscious. Croce now claims to be suffering the continuing effects of multiple concussions, including loss of cognition, loss of memory, headaches, and trouble sleeping.

Croce, unlike many other cases, now claims that the high school (and public entity) violated his right to “bodily integrity” under the 14th Amendment of the U.S. Constitution. Without launching into a full substantive due process review, the legal concept of bodily integrity has appeared in Supreme Court decisions restricting government interference with reproductive rights and illegal search and seizure issues.

It certainly is questionable whether or not a concussion injury and an alleged subsequent failure to restrict play can arise to an actionable constitutional deprivation under federal standards. But the difference in Croce’s action is that, under federal law should the plaintiff be successful in maintaining and sustaining a constitutional claim, he could then be entitled to recovery of reasonable attorney’s fees. If high schools now face the possibility of negative verdicts that include devastating legal fees, then sports programs across the country will be in the crosshairs of serious legal jeopardy in head injury cases. The potential of this type of award will certainly cause schools to discontinue contact sports programs. Given this possibility, it raises the question if Congress also will need to act to protect and insulate high school sports from crushing federal litigation.

The risks presented by concussions and CTE lawsuits must be managed if high school sports are to thrive. Only through a combination of training, baseline testing, and legislative action can the ominous clouds lift from school athletics. If the risks are better contained, then this improved playing field will allow creative insurers to write policies in this critical patch of the American fabric.