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September, 2016

Handbook of Neurological Sports Medicine: Theories of negligence in sports-related injury cases


This is an excerpt from Handbook of Neurological Sports Medicine by Anthony L. Petraglia, Julian E. Bailes, and Arthur L. Day.

Many different theories of negligence have arisen over the years in litigation concerning injuries sustained during contact sports. These theories are limited only by the innovative thought processes of skilled attorneys. Nonetheless, final judgment is always decided by our judiciary, which is charged with ensuring compliance with the law. Although the system is not perfect (none are), our civil justice system allows theories regulated by rules of procedure and evidence to be subjected to a judgment by our peers with constant judicial oversight. An additional safeguard is provided through appellate review.

The following negligence claims frequently appear in sports-related injury cases:

  • Failure to properly train
  • Failure to be properly credentialed
  • Inadequate supervision45
  • Failure to properly observe, refer, or stabilize the injured player
  • Unequal matching of opponents (boxing)
  • Improper return to play46,47
  • Improper equipment or fitting
  • Improper screening or physicals
  • Failure to warn of risks
  • Failure to enact proper rules for concussions or return to play
  • Failure to stop or curtail risky or violent conduct
  • Medical malpractice48
  • Negligent hiring or retention of personnel
  • Improper design or maintenance of playing field or premises
  • Failure to have an emergency medical plan49
  • Improper medical clearance50

This list of claims is not meant to be all-inclusive, but rather sets forth various examples of claims that have been made in recent years. Irrespective of the type of claim, there must always be evidence sufficient to support a finding of each of the four elements of negligence, that is, duty, breach, causation, and damages.

Product liability cases stand alone in a separate category. These claims are typically filed against the
manufacturer or distributor of the equipment, alleging that the product was defective in design or manufacture or that the manufacturer failed to warn of known dangers with the use of the product. Some product cases may also include an allegation that the product was unsafe for its intended purpose.51 An example of a products liability claim is Daniels v. Rawlings Sporting Goods Company, Inc. ,52 wherein a high school football player sustained permanent brain damage when his helmet "caved in" during a collision with another player. The injured player brought a products liability and negligence claim against the helmet manufacturer. The jury found that the helmet was defectively manufactured and that the manufacturer had a duty to warn that the helmet would not protect a player against head and brain injuries. A judgment was rendered against the manufacturer for $750,000 in compensatory damages and $750,000 in punitive damages.

Cases of Interest

It is impossible to predict all of the factual scenarios people will encounter that could subject them to potential liability arising from a sport-related contact or neurological injury. Examining prior legal cases and their results, however, can provide guidance as to what is and is not acceptable conduct when one is confronted with a sport-related injury. The doctrine of stare decisis requires courts of law "to follow earlier judicial decisions when the same points arise again in litigation."53,54 Courts of law adhere to stare decisis because it provides continuity and predictability in our legal system and further provides notice to society as to what one’s rights, duties, and obligations are.55,56

As noted previously, the public has only recently begun to learn about the serious consequences of concussions and head trauma in contact sports. Because of this, there are limited published legal opinions addressing these issues as compared to other traditional areas of tort law. It can be expected that the law on this subject will continue to develop rapidly to keep pace with advancing research and science. The following cases are a sample of judicial opinions from across the country that demonstrate how courts have addressed various issues relating to neurological sports injuries. These cases are not intended to cover the full litany of factual patterns that may lead to allegations of liability, and they do not cover all the legal issues implicated in sport injuries. Rather, these cases have been selected to allow the reader to gain insight into how the law is applied to varying factual scenarios.

Harvey v. Ouchita Parish School Board

During his sophomore and junior years, Michael Harvey had established himself as a star player on the West Monroe High School football team in Ouachita Parish, Louisiana. Before the start of his senior year, he sustained two minor neck injuries during football.57 Harvey’s father, a chiropractor, treated his son for these injuries and told Michael’s coach that Michael had to wear a neck roll in all practices and games for an indefinite period of time to protect his neck from further injury.58

During the second game of his senior season, Michael’s neck roll was torn off his shoulder pads and was damaged to the extent it could not be reattached. During halftime of the game, Michael inquired about an extra neck roll with the student trainer, who indicated that there were none. Michael did not ask any of the coaches for a neck roll and returned to play in the third quarter without a neck roll. After making an interception, Michael was tackled by the face mask during the return and sustained a ruptured disc at C45. Michael was treated with a discectomy and fusion.

Michael filed suit against his high school football coach and the school board as a result of the injuries he sustained. At trial, the court found the coach and staff negligent for failing to require a "player to wear available protective equipment to minimize the risk of a player being injured when tackled, even by actions that violate game rules, such as the 'face mask' and 'late hit' infractions for which penalty flags are thrown."59 The judgment totaled $215,000 including $35,000 for "loss of opportunity to play college football." The total judgment was reduced by 20% for Michael's portion of his comparative fault.60

Maldonado v. Gateway Hotel Holdings, L.L.C.

A 23 year-old professional boxer, Fernando Maldonado, was knocked out in a fight at the Gateway Hotel in St. Louis in 1999. After being revived, Maldonado walked to his dressing room, where he lost consciousness. There was no ambulance onsite or on standby, nor was medical monitoring provided. Maldonado alleged that the hotel, as the landowner, failed to have an ambulance and medical monitoring onsite, which delayed his treatment, thereby causing significant brain injury and numerous motor and cognitive deficits. The jury found the hotel negligent and awarded $13.7 million in compensatory damages. Although a request for punitive damages was not made, the jury, on its own, assessed punitive damages in the amount of $27.4 million to the verdict, which was later struck by the judge.61

Cerny v. Cedar Bluffs Junior/Senior Public School

In September 1995, Brent Cerny struck his head against the ground while attempting to make a tackle in a football game. Reports indicated that Cerny was dizzy and disoriented but remained in the game for a couple of plays before taking himself out. Cerny returned to the game in the third quarter and played to its conclusion. He participated in practice the following week and was injured again when his helmet struck another player during practice drills. Cerny’s doctor testified that he suffered a closed head injury with second concussion syndrome.

In his lawsuit, Cerny advanced several theories of negligence against his coach, including failing to adequately examine, failing to obtain qualified medical attention, and improperly allowing him to return to play. Critical testimony during the trial was conflicting. The judge found that the coach’s conduct in evaluating Cerny and permitting him to reenter the game and participate in subsequent practices was consistent with what a reasonable coach would do under like or similar circumstances. The judge’s verdict found that the coach was not negligent.62

Pinson v. State of Tennessee

In 1984, Michael Pinson received a blow to his head in a football practice. Shortly afterward, he collapsed and remained unconscious for 10 minutes. The school’s athletic trainer examined Pinson and found facial palsy; no control on the left side of the body; unequal pupils; and no response to pain, sound, or movement. Pinson was thereafter immediately rushed to the hospital. The team trainer did not accompany Pinson to the hospital and instead sent a student trainer. Hospital records revealed that the student trainer informed hospital personnel that Pinson had been unconscious for 2 minutes. The school’s trainer later appeared at the hospital but never conveyed to hospital personnel the significant neurological findings he had made on the field. Pinson’s subsequent symptoms of headache, known by the trainer, together with the trainer’s original findings, were never relayed to Pinson’s treating doctor, who ultimately allowed Pinson to return to play.

Three weeks after the concussion, Pinson was "kicked in the head" and collapsed unconscious at practice. Surgery revealed a chronic subdural hematoma that had been present likely for 3 to 4 weeks. Pinson remained in a coma for several weeks following his brain surgery and became hemiparetic.

At a commissioner’s trial, the school’s trainer was found negligent for failing to communicate Pinson’s neurological signs and symptoms to the emergency room and treating physician. Damages of $300,000 were assessed against the school trainer and the school.63

Rosada v. State of New York

John Rosado, a state detainee, filed suit against the state as a result of a fractured skull he sustained when he fell while playing basketball at the detention center. Rosado alleged that the state was negligent for using concrete floors instead of hardwood. The court found that no duty existed to use wooden basketball floors, and judgment was entered against Rosado.64

Regan v. State of New York

In Regan v. State of New York, a young college rugby player suffered a broken neck while practicing as a member of the rugby club and was rendered quadriplegic. The player filed a lawsuit against the state university alleging inter alia, negligent supervision of the practice. The court dismissed the claim, finding that the player had assumed the risk of "those injury-causing events which are known, apparent, or reasonably foreseeable consequences of their own participation."65

Lessons to Be Learned

As demonstrated by the previously discussed cases, the application of the law is not a mechanical approach. The outcome of each case is dependent on its own unique facts. As such, there is no bright-line rule or specific course of conduct that the law prescribes to avoid liability completely. As in all negligence claims, in a claim against a medical provider or responsible person involving a sport-related injury, the defendant will be evaluated under the "reasonable person" standard. Thus, in order to avoid liability, she must act as a reasonable medical provider, trainer, coach, or other professional would under the same or similar circumstances.

Read more from Handbook of Neurological Sports Medicine by Anthony L. Petraglia, Julian E. Bailes, and Arthur L. Day.

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