The Last Great Unknown: Mitigating Legal Liability and Maximizing Player Safety with Regard to Concussions

November 22, 2015

Negligence

By Ryan Hamilton – Thompson Rivers University 2L JD Student

Sports concussions have received a lot of attention over the past decade and are the last great unknown in sports medicine. Legal liability has acted as a sort of catalyst with respect to the amount of research and exposure that concussion related injuries have received. The solution to the problem of sports-related brain injuries is multi-headed and includes prevention, education, recognition, rule changes, and rehabilitation.

The truth is, there is really no way to eliminate head injuries from contact sports where players are getting bigger, stronger, and faster, at least without dramatically changing how these games are played. However, there are two strategies that should be employed and advanced upon to ensure that the games we love can continue to emulate a high level of ethical and legal standards.

These strategies can be referred to as recognition and education. Both of these can be highlighted in World Rugby’s Concussion Guidance Protocols. Their “Recognize and Remove” campaign highlights the necessity of recognizing the symptoms of concussion and removing players from the field to be properly screened.

Education as to what exactly constitutes “symptoms” in such a physical game is imperative to ensuring adequate safety standards. These educational programs should be mandatory for players of all ages and skill levels. As the understanding of concussions improves, the standard of education to athletes must improve as well. In doing so, organizations can protect themselves and reduce their liability by ensuring that participating athletes are aware and accepting of all the inherent risks associated with their sport.

The second important strategy is concussion recognition. A prominent example of the increased focus of recognition can be found in World Rugby’s Law 3.11: Temporary Replacement-Head Injury Assessment (HIA). The law came into effect on August 1st, 2015. Law 3.11 dictates that players in elite level matches who are suspected of having received a concussion are to be immediately removed from the field of play and assessed. The recognition of symptoms is not limited to the player, and also allows for medical staff to request a player be removed.

World Rugby Law 3.9 also allows the referee to order a player who he or she views as being injured to leave the field for assessment. Following the assessment, the doctors and medical staff make a determination as to whether the player can return to the field of play or is removed permanently. This is quite significant rule change, as normally any player who is substituted off, or leaves the field due to injury cannot return (with the minor exception of a “blood injury”).

The new rule allows for accredited medical professionals to make these assessments immediately following a suspected head injury. It also takes the decision largely out of the player’s hands, which is paramount to ensuring safety and reducing long-term injury. Concussions are a very unique injury. You don’t wear a cast, you aren’t in a sling, and there are no scars. As an athlete it can be tremendously difficult to pull yourself out of games based on symptoms that you haven’t been formally trained to recognize.

While educational programs can mitigate a lack of recognition, even the most informed player could have trouble diagnosing the symptoms of concussion after receiving an impact to the head. Keep in mind that an athlete doesn’t have to lose consciousness to receive a concussion, often times they don’t. Add to that the old school attitudes and mantra of a game built on toughness and you’re putting an unfair choice on an elite level player, especially on those international athletes who have worked their whole lives to represent their country, and would do just about anything to remain on the field regardless of consequence. While these attitudes are changing with the help of World Rugby’s campaigns, the choice to remove oneself from the field should never be left solely with the athlete.

An example of Law 3.11 working was during the recent Rugby World Cup match between Scotland and South Africa where the Scotland medical staff recognized that hooker Ross Ford was displaying concussion like symptoms. Staff promptly contacted the referee and had Ford removed for an HIA assessment. Ford failed the subsequent head injury assessment and was not allowed to return to the field.

According the British Journal of Sport Medicine, prior to the HIA protocols, 56% of players with a confirmed concussion remained on the field following their injury. That number has dropped to 12% since the HIA. This decrease is a huge success, and highlights World Rugby’s commitment to increased concussion awareness and emphasis on player safety; both of which are paramount to not only maintaining a high ethical standard, but also in protection from tortious liability as well.

 

 

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