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Athletes of all ages are at risk for suffering concussions in sports-related accidents. This is also true for athletes in all sports, regardless of the level at which they play. Collisions between players, falls, and other types of incidents can all cause concussions, and these traumatic brain injuries (TBI) can have lingering effects regardless of the player’s injury history (or lack thereof).

When players suffer head injuries, resting and obtaining medical treatment promptly can be crucial to mitigating the risk of long-term consequences. Not only must the concussion be treated, but the player must also be protected against subsequent contact, which could result in a condition known as second impact syndrome. Studies have shown that rest and recovery are crucial to avoiding long-term effects, and coaches, team doctors, and others all play a role in ensuring that athletes’ mental health is not risked unnecessarily.

So, what happens when a player suffers a concussion and is forced, pressured, or “strongly encouraged” to return to the court or the field too soon?

Pursuing Negligence-Based Claims against Teams, Leagues, and Other Sports Entities

When it comes to holding a team, league, or other sports entity liable for an athlete’s concussion, liability is determined based on the law of negligence. This is the same body of law that applies in all other types of personal injury and medical malpractice cases. If a coach, trainer, team doctor, or anyone else was negligent in allowing (or pressuring) an athlete to return to play while concussed, then liability can attach. While the coach, trainer, team doctor, or another individual may be directly liable, it is possible that the team, league, camp, school, or another entity involved in the game, tournament, or event could be liable as well:

• Sports Teams – Sports teams can face vicarious liability for the negligent acts of their coaches, trainers, team doctors, and other personnel they employ. If the team does not have a documented concussion protocol and other appropriate policies and procedures to protect players’ safety, this could give rise to a direct claim for liability.
• Leagues – Similarly, leagues can be held vicariously liable for their employees’ negligence, and they can also face direct liability if they encourage or incentivize players to risk their mental health. Leagues can also face liability if they fail to take appropriate measures to protect players’ mental health, as in the case of the National Football League (NFL).
• Camps – Sports camps can be held liable for the effects of athletes’ concussions on similar grounds. If an athlete suffers a concussion and the camp’s personnel do not take appropriate responsive measures to ensure that the athlete receives the treatment he or she needs, then the camp could be directly or vicariously liable for the long-term effects of the athlete’s TBI.
• Schools – Middle schools, high schools, colleges, and universities in Connecticut all have legal obligations to protect their athletes’ safety as well. In the lucrative world of college athletics in particular, players are frequently sent back into games without receiving a comprehensive diagnosis or the treatment they need to recover.
• Other Entities – Tournament organizers, health care providers hired to provide emergency medical treatment at games and events, and various other entities can also be held liable for the effects of athletes’ sports-related concussions. Once again, the key issue is whether the entity in question was negligent in failing to ensure that the concussed athlete received treatment and was not put at risk for further injury.

When Should Teams, Leagues, and Other Sports Entities Prevent Athletes from Playing?

Rather than telling athletes who complain of concussion symptoms to “shake it off,” teams, leagues, and other sports entities must take appropriate measures to prevent concussed athletes from returning to play. While each situation requires a critical evaluation of the particular facts and circumstances involved, in general, athletes should not be forced or pressured to return to play when they are exhibiting symptoms such as:

• Headache
• Difficulty walking or maintaining balance
• Blurred vision
• Ringing sounds in the ears
• Sensitivity to light
• Nausea or vertigo
• Impaired thinking or judgment
• Memory loss (i.e., not being able to remember what happened)

When an athlete exhibits these symptoms, the appropriate course of action is to pull the athlete from play immediately and to send the athlete for a medical diagnosis. Unless and until the athlete receives medical clearance to return, he or she should not face any pressure to practice or play.

What about Contractual Liability Waivers?

These days, teams, leagues, and other sports entities are well aware of the risk of player and parent lawsuits; as a result, most require athletes or their parents to sign contractual liability waivers. If you signed a liability waiver – either for yourself or on behalf of your child – how does this affect your legal rights in Connecticut?

In some circumstances, a contractual liability waiver will serve to bar a claim for liability. However, this is not the case in all scenarios. For example:

• Waivers Do Not Protect against Deliberate Acts – In Connecticut, contractual liability waivers cannot be used to insulate individuals or entities against liability for their own deliberate acts. If a coach, doctor, or another individual deliberately sent a player onto the court or field knowing that doing so put the player at risk for serious complications or a more serious injury, then the player’s waiver may be ineffective to avoid liability.
• Waivers May Not Protect against Blatant Disregard for an Athlete’s Safety – Similarly, the Connecticut courts will hold contractual liability waivers unenforceable in certain circumstances where the waiver purports to provide protection against blatant disregard for an athlete’s safety. If a team, league, or other sports entity simply ignores the risk of its athletes suffering long-term or permanent complications due to concussions, then athletes who get injured may still have the right to sue for damages.
• In Certain Circumstances, Waivers Are Void as against Public Policy – The Connecticut courts will also void contractual liability waivers in circumstances where enforcing a waiver would go against public policy. If the “totality of the circumstances” suggests that enforcing the waiver would disfavor the public interest, then an injured athlete (or his or her parent) can file a lawsuit regardless of the fact that a waiver was signed.

Concussion Misdiagnosis: A Related Concern for Athletes Who Suffer Head Injuries

In addition to the issues discussed above, a related concern for athletes who suffer head injuries while practicing or playing is the risk of having their concussions misdiagnosed. Misdiagnosis is the most common form of medical malpractice. And while knowledge of the prevalence, symptoms, and risks of concussions is growing, sports-related concussions are still frequently misdiagnosed.

For athletes, a concussion misdiagnosis can have dual effects. Not only does the misdiagnosis (which is typically in the form of a failure to diagnose) mean that the athlete does not receive the treatment he or she needs, but it also means that he or she may be expected to return to play too soon. If a doctor fails to diagnose an athlete’s concussion and gives him or her medical clearance to play, the player’s coaches and trainers may be fully justified in relying on the doctor’s recommendation. If the athlete exhibits symptoms on the court or field after returning, then team personnel may have an obligation to intervene. But at this point, additional damage very well could have already been done.

In cases involving concussion misdiagnosis, the doctor who provides the diagnosis can be held liable for medical malpractice. In many cases, the hospital or practice where the doctor works can be held liable as well. This is true regardless of whether the team, league, or club referred the athlete to a particular health care provider, or the athlete (or his or her parent) chose the doctor independently. If a doctor employed by the athlete’s team, league, or school provided a misdiagnosis, then the team, league, or school could likely be sued as well.

What If a Coach, Manager, or Trainer Leaves It Up to an Athlete to Decide Whether to Return to Play?

While it would be ideal if all coaches, managers, and trainers had a clear understanding of the symptoms and long-term risks of concussions, this, unfortunately, is not the case. In many circumstances, these personnel simply will not know whether a concussed athlete needs to be pulled from play. As a result, they will often leave it up to the athlete to decide whether to “tough it out” or seek treatment.

If an athlete voluntarily chooses to return to play, how does this impact any potential claim for damages? Once again, the answer depends heavily on the particular facts and circumstances involved. For example, if an adult athlete is fully aware of his or her condition and chooses to take the risk, then this may have an impact. However, if a minor athlete is left to make a decision about protecting his or her own mental health without receiving adequate guidance from team personnel, the likelihood of a “voluntary” return to play having an impact is far less. Between these ends of the spectrum, various factors will need to be considered in order to determine what impact (if any) the athlete’s decision has on his or her claim for damages.

Ultimately, the key for any athlete or any parent who has concerns about his or her child’s mental health is to seek professional help promptly. This means seeing a doctor and consulting with an attorney. At Berkowitz Hanna, we represent clients ranging from youth athletes to All-Pro NFL players, and we can help you gain a clear understanding of your legal rights.

Speak with an Experienced Lawyer at Berkowitz Hanna

If you would like more information about filing a lawsuit to recover damages for the lingering effects of a sports-related concussion, we encourage you to get in touch. To speak with one of our trusted lawyers in confidence, please call or request a free initial consultation online today.