Athletic Director s Breakout Session April 22, 2012

Transcription

1 72ND ANNUAL NAIA NATIONAL CONVENTION 2013 KANSAS CITY, MO Athletic Director s Breakout Session April 22, 2012 Nikki Wilson Crary, Attorney at Law Jackson Lewis LLP & Brent Melvin, MS, ATC Head Athletic Trainer Peru State College

2 Concussion Management Why is it important to your Athletic Program? 1. Legal Duties and Potential Liability 2. Crisis of Athlete Safety 3. Hot Legislative Topic 2

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4 Class Action Litigation Against NCAA In 2011, a federal class action lawsuit was filed in the Northern District of Illinois on behalf of current and former NCAA football players who sustained a concussion(s) or suffered concussion like symptoms while playing football at an NCAA school. The lawsuit alleges the NCAA has failed to take meaningful steps to prevent student athletes from sustaining concussions. In addition, the lawsuit claims the NCAA has ignored studies showing the risks and effects of concussions, such as early onset dementia, depression, and lowered cognitive abilities, and failed to implement policies to address the problems. 4

5 Class Action Litigation Against NCAA In February 2013, an amended complaint was filed adding a former hockey player and several new causes of action. Essentially, the players are alleging that the constitution and bylaws create obligations between the NCAA and member institutions to provide, among other things, a safe environment for student athletes. By failing to enforce concussion guidelines and implement rules that have teeth, the NCAA allegedly breached their duties duties which were intended to benefit student athletes. 5

6 Potential Liability - La Salle Case On October 4, 2005, Mr. Plevretes allegedly sustained a concussion during a football game. In the course of another game a few days later, he complained to the LaSalle trainer that he was experiencing headaches whenever he made contact with another player and that he had been having headaches since the October 4 game. 6

7 Potential Liability - La Salle Case (Cont d) Mr. Plevretes later went to the Student Health Center and was examined by a nurse, who performed a Standardized Assessment of Concussion or SAC. Mr. Plevretes was told he had a grade 1 concussion and should not return to practice for one week. 7

8 Potential Liability - La Salle Case (Cont d) Mr. Plevretes would undergo some additional tests, including a CT scan, and ultimately was cleared to play on October 16, 2005, as expressed in a note from the La Salle trainer. On November 5, 2005, in another La Salle football game, Mr. Plevretes had a helmet to helmet collision and suffered significant head injuries. 8

9 Potential Liability - La Salle Case (Cont d) Since that collision, Mr. Plevretes has undergone several operations and treatments, required around the clock care and has difficulty walking and talking. At various points in the complaint, the plaintiff alleged that La Salle should have taken steps to further protect Mr. Plevetes, did not follow strictly certain concussion protocols, and was at bottom too quick to allow him to return to the field. 9

10 Potential Liability - La Salle Case La Salle reportedly settled the case for $7.5 million. 10

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12 Searles v. Trustees of St. Joseph s College A college basketball player alleged that his coach and athletic trainer were negligent in forcing the plaintiff to play with an injury. The Court ruled an athletic trainer must conform to the standard of care required of an ordinary careful athletic trainer when providing care and treatment to athletes. 12

13 Jarreau v. Orleans Parish Sch. Bd. A young athlete who suffered a head injury was not referred to a physician for treatment until the end of the sporting season sued for negligence. Court found that an athletic trainer had a duty of care to an athlete, which was met where the athletic trainer referred the athlete for medical treatment. The standard of care did not require that the athletic trainer have any special medical expertise. 13

14 Current Legal Standard for Athletic Trainers U. S. Courts will likely find the NATA guidelines create the standard of care. An athletic trainer who fails to meet the NATA guidelines when evaluating an athlete and who does not refer the injured athlete to a physician may be liable for negligence as a consequence of such failures. 14

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16 Coaches have a duty to exercise reasonable care for the health and safety of student athletes. A coach will breach his duty to a student athlete if the coach intentionally injures the student or engages in conduct that is reckless in the sense that it is totally outside the range of the ordinary activity involved in teaching or coaching the sport. Coaches do not have a duty to eliminate all risk presented by the sport but rather have a duty not to increase the risk inherent to learning, practicing, or performing the sport. 16

17 The duty owed an athlete takes the form of giving adequate instruction in the activity, supplying proper equipment, making a reasonable selection or matching of participants, providing non negligent supervision of the particular contest, and taking proper post injury procedures to guard against aggravation of injuries. 17

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19 Crisis of Athlete Safety Approximately 400,000 school age children each year suffer a concussion. 40.5% of High School Athletes return to the field too soon after suffering a concussion. 19

20 Crisis of Athlete Safety Female Athletes At More Risk According to a study by Ohio State, National Children s Hospital: The concussion rate among female high school soccer players is 68% higher than males. Concussion rate for female high school basketball players is triple the rate of concussions for the male players. 20

21 Crisis of Athlete Safety Long Term Risks Retired NFL Players are 5 to 19 times as likely as the general population to have received a dementiarelated diagnosis. 1 in 5 players who suffered multiple concussions say they have suffered depression 3 times the rate of players who have not suffered concussions. 21

22 Crisis of Athlete Safety Promoting Champions of Character 1. Integrity 2. Respect 3. Responsibility 4. Sportsmanship 5. Servant Leadership 22

23 Crisis of Athlete Safety Promoting Champions of Character The health of the Student Athlete must always take precedence over competition! 23

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25 Concussion Management Hot Legislative Topic 40 out of 51 States (including DC) have implemented laws governing the conditions under which a student athlete participating in youth athletics who has suffered a concussion can return to play. Congress has introduced a bill entitled Protecting Student Athletes from Concussions Act which requires educating students about brain injury and keeping injured athletes out of play until cleared, in writing, by a health care professional. 25

26 Concussion Management Hot Legislative Topic (Cont d) NFL mandated stricter rules regarding return to play after sustaining a concussion, now requires a neutral physician making the return to play decisions, and instituted new standards for concussion evaluations. NCAA mandated that all schools must have a concussion management program in place by the school year. 26

27 Concussion Management Hot Legislative Topic (Cont d) In 2012, the Ivy League instituted rule changes in Football, Lacrosse and Soccer aimed at decreasing concussions. In June 2012, the Big Ten and Ivy League announced the launch of a collaborative study aimed at improving head injury assessment and prevention. 27

28 It sets a precedent. Creates Basic Standard of Care at the University level. Provides a basic framework to establish a Crisis Management Protocol tailored to your Athletic Program. 28

29 1. Educate Yourself 2. Draft and Adopt Procedures 3. Implement 4. Check and Evaluate Procedures 29

30 Concussion Management Plan Step One Educate Yourself Review existing information Be aware of the Standard of Care Consult with Athletic Trainer and appropriate Medical Personnel Understand your Insurance Policy 30

31 Concussion Management Plan Step Two Draft and Adopt Procedures All Concussion Management Plans should include: Signed Athlete Statements regarding accepting responsibility for reporting their injuries Baseline Testing on Athletes Identify appropriate medical personnel that the Athlete can be referred to for consultation 31

32 Concussion Management Plan Step Two Draft and Adopt Procedures All Concussion Management Plans should include: A provision stating that if an athlete shows symptoms consistent with a concussion, the athlete shall be removed from practice or competition and evaluated by an athletics healthcare provider with experience in the evaluation and management of concussion. 32

33 Concussion Management Plan Step Two Draft and Adopt Procedures An athlete diagnosed with a concussion shall be withheld from the competition or practice and not return to activity for the remainder of that day, at the very least. 33

34 Concussion Management Plan Step Two Draft and Adopt Procedures Plan for serial monitoring for deterioration of the injured athlete. Decision on return to play must be made by medical personnel or administration, not the coach. Create and foster a top down approach to athlete safety! 34

35 Concussion Management Plan Step Three Implement Training Signed Waivers Continuing Education The Student Athletes are often the biggest obstacle to their own safety 35

36 Concussion Management Plan Step Four Check and Evaluate Procedures Perform quarterly or yearly analysis to evaluate procedures; Analyze how athletic injuries have been handled; Identify breakdowns and implement revised procedures if needed. 36

37 Comprised of attorneys with deep, practical experience in the sports world, Jackson Lewis Sports Industry Group is uniquely situated to serve the diverse needs of collegiate and professional sports entities. We advise college and university clients on compliance with the growing number of NCAA and NAIA rules and guide institutions through increasingly complex regulations governing collegiate sports. We have vast experience in advising institutions on Title IX and civil rights laws, representing colleges and universities at every stage of the compliance process, including audits, civil rights reviews, and government investigations 37

38 Name: Contact Information: Question: 38

39 Nikki Wilson Crary Attorney at Law Jackson Lewis LLP 5000 Birch Street, Suite 5000 Newport Beach, CA Direct

40 What is a concussion? Brain injury caused by biomechanical forces Normally involves a functional disturbance, not structural damage Medical tests (MRI, CT Scan) rarely show any kind of damage Does not have to involve loss of consciousness

41 Symptoms Immediate Headache Balance problems Confusion Amnesia Fogginess Slowed reaction times Vision problems Loss of consciousness Non-Immediate Sensitivity to light Difficulty concentrating Sleep disturbance Insomnia Difficulty staying asleep Emotional changes Irritability More emotional

42 Athlete Safety Before injury Have a concussion management plan Educate athletes about concussions Symptoms Second Impact Syndrome Institutional concussion plan Consider preseason neuro-psych testing ImPACT, etc

43 Athlete Safety Initial Injury Athlete should be immediately removed from activity Should never return same day Must be cleared by a medical professional with experience in concussion management Must be coordinated with on-site medical personnel (athletic trainer) State law may dictate who can do this

44 Athlete Safety Monitoring Athlete needs to be monitored on a regular basis Looking for any change in symptoms Physical and mental rest May need academic accommodations 80-90% of concussions resolve in 7-10 days* Lingering symptoms may need referral for more advanced care i.e. Family physician, neurologist *Br J Sports Med 2013;47: doi: /bjsports

45 Athlete Safety Return to play Consider using neuro-psych testing ImPACT, etc Must have a return-to-play progression All medical personnel must follow same progression No deviation from the progression

46 Athlete Safety Return to play Must be symptom free for 24 hrs before progression can begin Progression takes approximately 6-7 days My take longer if symptoms return Be more cautious with individuals with multiple concussions

47 Graduated return to play protocol Rehabilitation stage 1. No activity 2. Light aerobic exercise 3. Sport specific exercise 4. Non contact training drills Functional exercise at each stage of rehabilitation Symptom limited physical and cognitive rest Walking, swimming or stationary cycling keeping intensity <70% maximum permitted heart rate No resistance training Skating drills in ice hockey, running drills in soccer. No head impact activities Progression to more complex training drills, eg, passing drills in football and ice hockey May start progressive resistance training Following medical 5. Full contact practice clearance participate in normal training activities 6. Return to play Normal game play Objective of each stage Recovery Increase HR Add movement Exercise, coordination and cognitive load Restore confidence and assess functional skills by coaching staff Br J Sports Med 2013;47: doi: /bjsports

48 Athlete Safety Standard of care Based on current recommendations / consensus statements Consensus statement on concussion in sport, 2012 Individual state law may apply Consult legal council

49 Athlete Safety Concussion Management Plan Concussion management plan is essential in providing high quality, consistent care to your athletes Athlete health and safety must always take precedence over competition! Having medical personnel on-site, i.e. athletic trainers is vital Must have administrative support!