12 NATANews September 10 www.nata.org

Text Steven E. Pachman, Esquire, MontgomeryMcCracken, Walker & Rhoads, LLPPhiladelphia, Pennsylvania

Kevin M. Guskiewicz, PhD, ATCUniversity of North Carolina at Chapel Hill

The Athletic Trainer’s LegalLiability for Football-RelatedInjuries: Minimizing the Risk

A s the number of reported concussions andother football-related injuries continues to

rise at the high school, collegiate and profession-al levels, more and more lawsuits are being filed,alleging that various football personnel are failingto meet the appropriate standard of care.The increasing popularity of these legal

actions likely stems from the increasingknowledge surrounding the frequency of con-cussions and other more serious football-relat-ed injuries, such as subdural hematomas, andthe highly publicized nature of footballinjuries.Last football season, the media covered

sport-related concussions as never before. Itappeared to be the exception for a day to passwithout an article appearing in the New YorkTimes or USA Today, or a report airing onESPN’s Sports Center, ABC’s Nightline,CNN’s American Morning or HBO’s RealSports featuring concussions or other football-related injuries.In most cases, these stories have speculated

about how the injury could or should havebeen averted. Congress is even weighing in onthese issues, and sports governing bodies areunder fire. Athletic trainers on the front lines ofmanaging these very complex injuries must bemore informed than ever before.

ATs Under FireAthletic trainers have become a popular tar-

get of lawsuits alleging failures to meet thestandard of care following a football injury. Inmany cases, it’s the athletic trainer who has theclosest contact with a team’s players and whois responsible for protecting their health andwell-being. In our increasingly litigious socie-ty, whenever an unfortunate incident occurson the football field, the actions or inactionsof the athletic trainer are likely to be second-guessed or directly blamed.Allegations against athletic trainers include

improper evaluation and testing of the athlete,improper documentation of injuries, misunder-stood communications with the athlete, and alack of education of the athlete or the athlete’s

family. Even the experts have competing viewson the appropriate standard of care. On theissue of pre-season (baseline) neuropsychologi-cal and balance testing, for example, the expertsare divided on whether such testing is requiredto meet the standard of care for concussionmanagement.

Depending on the facts of a given case,defending the athletic trainer’s conduct againsta plaintiff ’s allegations can be especially chal-lenging. In some actions, the jury will have tograpple with a complicated medical or scientif-ic theory regarding the cause of the player’sinjury, such as Second Impact Syndrome; inothers, the player may be so severely injuredthat sympathy might outweigh a more objec-

Steven E. Pachman, Esquire Kevin M. Guskiewicz, PhD, ATC

able time discussing and debating the issue ofwhen the Eagles could safely return Westbrookto game play without further risk of harm inlight of his head injury. Following post-concus-sion testing, the Eagles held Westbrook out forthe next two games. He ultimately returned toplay three weeks after his initial injury, only tosuffer another concussion that caused him tomiss five more games.

On Nov. 22, the Steelers’ Ben Roethlisbergersuffered the fourth concussion of his career afterhe, too, took a knee to the head. After sittingout one game and then being cleared followinga variety of concussion tests, Roethlisbergerreturned to the field the following week. Thesame week, the Cardinals’ KurtWarner sufferedthe fifth concussion of his career after slamminghis head into the turf. Warner was pulled from

the game and missed the following week’s gamewith reported vision problems and neck pain.He returned to game play the following weekand played the remainder of the season.All three concussions remained the center

of media focus for the rest of the year.This past college football season, the media

focused extensively on Florida Gators quarter-back Tim Tebow, who suffered a concussionafter hitting his head on the back of a team-mate’s leg during a sack, rendering himunconscious and forcing him to spend thenight in a hospital. Tebow was unable to prac-tice the following week, but – thanks to theteam’s scheduled bye week – was not requiredto miss any game play. His return sparked fur-ther discussion and debate on concussions andthe return-to-play issue.

The noticeably increased media attention toconcussions and other football-related headinjuries comes at a time of ever-increasingknowledge. Experts are learning more aboutthe nature and causes of concussions and sug-gested ways to avoid future head injuries;

research also is shedding light on the long-term effect of head injuries, which was sparkedby NFL Hall of Famer MikeWebster’s diagno-sis of chronic traumatic encephalopathy byBennet Omalu, MD.

In recent years, hundreds of retired NFLplayers have been studied concerning headinjuries sustained during their playing yearsand the associated long-term effects. InOctober 2009, federal lawmakers held exten-sive hearings to draw attention to the issue andperhaps learn more about the damage causedby repetitive brain injuries. And yes, since weare on the topic – let’s remember a “concus-sion” is a brain injury. A plaintiff ’s personalinjury attorney will rarely present a case to ajury as involving a “concussion” but will morelikely focus on his client’s “traumatic braininjury.” Without sounding as if a brain injuryshould ever be downplayed, it’s important tounderstand that plaintiffs’ attorneys oftendramatize.

Unclear StandardsFew people dispute that thousands of concus-

sions occur on the football field each year. Yet,despite all recently gained knowledge concerningconcussions and prevention of catastrophic braininjuries, there still is no clear “standard of care”for the proper management of these injuries. Infact, there are currently more than two dozencompeting guidelines for classifying and manag-ing sport-related concussion, which muddy thewater for how an athletic trainer should act tomeet the “legal duty to provide health care serv-ices consistent with what other health care prac-titioners of the same training, education, andcredentialing would provide under the circum-stances.” (Ray, R. Management Strategies inAthletic Training; 2005.)The differing views on the appropriate stan-

dard of care for the management of concus-sions and other potentially catastrophic braininjuries remain a controversial and somewhatconfusing topic within the sports medicinecommunity.Ironically, the ambiguity surrounding the

proper standard is actually welcome to onegroup, in particular: plaintiffs’ personal injuryattorneys. The lack of a clear standard makes iteasier for plaintiffs’ lawyers to construct theo-ries of liability for their lawsuits against athlet-ic trainers, alleging a breach of the standard ofcare by the athletic trainer following an on-field injury, as illustrated in this article.

tive assessment of the facts. In cases such asthese, jurors who are on the proverbial fenceregarding whether an athletic trainer met theapplicable standard of care may simply return averdict for the plaintiff so as to avoid having toconfront other, sometimes even harder, issues.For athletic trainers to minimize the risk of

becoming a defendant in a legal action follow-ing an injury on the football field – and tobetter defend themselves should a case be filedagainst them – they must have an understand-ing of “standard of care” for the managementof specific injuries based on the most recentscientific literature.

Additionally, the athletic trainer can learnfrom examining legal cases and the first-handexperiences of those who have defended ath-letic trainers during the litigation process.

The prevalence of reported football-relatedconcussions and associated news media atten-tion is increasing. This past NFL season, themedia spent enormous amounts of time cov-ering and analyzing concussions sustained byveterans Brian Westbrook, Ben Roethlisbergerand Kurt Warner, including the precise causesof their injuries and the most debated issuesrelated to the length of time for which theplayers should be held out of contact play,what the players should be doing (or not) inthe interim, and when the players may safelyreturn to game play.

When the medical care of high-profile ath-letes is played out in the media, it places allathletic trainers and team physicians underthe microscope.

The first of the three highly publicized con-cussions occurred Oct. 26, 2009, whenPhiladelphia Eagles’ running back Brian West-brook took a knee to the helmet in front of aprime-time television audience on MondayNight Football, rendering him unconscious. Inthe following weeks, the media spent consider-

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www.nata.org NATANews September 10 13

THE RECENT INCREASE IN REPORTED

FOOTBALL-RELATED INJURIES IS

LEADING TO MORE LAWSUITS

AGAINST ATHLETIC TRAINERS

THE RECENT INCREASE IN REPORTED

FOOTBALL-RELATED INJURIES IS

LEADING TO MORE LAWSUITS

AGAINST ATHLETIC TRAINERS

mum, is another tool in the athletic trainer’stoolbox. Because of the test’s ease in adminis-tration and the ability to baseline test a largenumber of athletes in a short period, as well asthe test’s gaining popularity, the prudentapproach is for the athletic trainer to employformal baseline and post-injury neurocognitivetesting.Regardless of the true utility of the test, the

risk is just too great that a jury hearing a caseagainst a defendant-athletic trainer will findagainst him/her if such testing was not uti-lized. In short, a jury is more likely to sidewith a defendant-athletic trainer when thejury believes the AT performed as much pre-and post-injury testing on the athlete as wasavailable or reasonably could have been avail-able. Thus, when in doubt, the athletic train-er should consider use of available testing,objective concussion assessment tools, briefscreening tools for sideline use, and testing toevaluate recovery, including neuropsychologi-cal testing.

DocumentationAnother possible allegation in the cases

against athletic trainers involves the lack ofdocumentation in managing a football-relatedhead injury. For several years now, the recom-mended approach has been that the athletictrainer should document “all pertinent infor-mation” surrounding head injuries. Indeed,the expression, “If it’s not written, it didn’thappen” – or words to that effect – is commonin the field.The question in these cases sometimes

becomes whether certain information is or isnot “pertinent.” For example, at some pointduring a player’s non-contact period followinga head injury, he will begin performing gradu-ated exertional exercises. But how much detailin the athletic trainer’s documentation isrequired to meet the standard of care?Many would argue – certainly, plaintiffs’

lawyers would – that it is insufficient for anathletic trainer to simply record that theinjured player “performed exertional maneu-vers” during the non-contact period. At trial,questions might be raised as to the specifics ofthe exertional testing: for example, the dateson which the testing was performed, the wit-nesses to the testing, and the actual maneuversthe athlete performed.Even though the athletic trainer may recall

the testing and all of its accompanying details

2008). In this case, the jury awarded no damagesto the injured player, but the “cost” to the defen-dants was three years of litigation, substantiallegal fees and expenses, and amonth-long, stress-ful, high-profile trial.

Baseline TestingA common allegation against athletic train-

ers involves improper and/or inadequate test-ing of the athlete prior to an injury.Computerized neuropsychological testingprograms designed for assessment of athletesare becoming more and more common withinthe sports medicine setting, especially for con-tact sports such as football.These pre-season tests, often combined

with balance testing and gathering informa-tion about the athlete’s concussion history andpropensity to experience concussion-likesymptoms under normal conditions, can pro-vide a benchmark for evaluating the athletefollowing a subsequent concussion. For thepast three years all NFL teams have beenrequired to utilize some form of this testing,and most recently the NCAA has mandated asimilar comprehensive baseline testing pro-gram for student-athletes participating in con-tact sports at its member institutions.

Still, some of the most highly-regarded neu-ropsychologists and neuroscientists in thecountry who have weighed in on the issue donot believe computerized neuropsychologicaltesting in the management of sport-relatedconcussion should be required to meet thestandard of care (at least yet). Some neuropsy-chologists have taken the position that thefailure of an athletic trainer to employ formalbaseline and/or post-injury neurocognitivetesting in certain contexts amounted to abreach of the athletic trainer’s standard of care.

Critics of neuropsychological testing in con-nection with evaluating sport-related concus-sion point to the lack of reliability and validityof such testing. One argument is the “impair-ments” detected by neuropsychological testingare mild and fleeting; no prospective controlledstudy, it has been argued, has been able to iden-tify a difference between concussed players andcontrols after around seven days post-injury. Ithas also been asserted that many of the com-mercially distributed batteries are highly unreli-able, suggesting a high rate of false positives andfalse negative findings. (Broglio et al., 2007).Nevertheless, the consensus is that comput-

erized neuropsychological testing, at a mini-

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14 NATANews September 10 www.nata.org

Given the ambiguity on the proper stan-dard of care, one thing remains clear: the bestapproach for athletic trainers who seek toavoid liability when treating their players maybe the most conservative approach.

Legal Lessons LearnedThe attacks on athletic trainers in these

actions often involve:

— The evaluation or testing of theathlete (or lack thereof );

— Documentation of an injury;

— Communications with the athlete orwith a physician about an athlete;

— Education of the athlete.

For example, in a recent California case, anathletic trainer was found liable for failing toproperly or promptly evaluate a student ath-lete who apparently had sustained a concus-sion only to later pass out, fall and suffer avariety of physical injuries as a result of theAT’s alleged failures. Gill v. Tamalpais UnionHigh School District, No. A112705, 2008 Cal.App. Unpub. LEXIS 3928, at *1 (Cal. Ct.App. May 14, 2008). The court ordered thedefendants to pay substantial damages to theinjured athlete.In another case, a University of Tennessee

football player likewise recovered hundreds ofthousands of dollars after an athletic trainerallegedly failed to promptly report to a physi-cian initial symptoms related to a concussionsustained by the player, and then allegedlyfailed to report the athlete’s continuingheadaches to the physician, and where the stu-dent subsequently sustained an acute subdur-al hematoma in connection with an injurysustained one month later. Pinson v. Tennessee,No. 01-9409, 1995 Tenn. App. LEXIS 807, at*1, 5 (Tenn. App. 1995).And, in another recent case, a high school

football player alleged that his athletic trainerfailed to properly evaluate him or take seriouslyhis reported headaches and dizziness following aconcussion and then prematurely returned himto play, which allegedly caused the athlete to suf-fer Second Impact Syndrome two weeks laterfrom a second concussion. Melka v. OrthopaedicAssocs. of Wisc., No. 06-2136 (Wisc. Cir. Ct.

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athletes should translate into more informedparticipants, which, in theory, should lead tofewer catastrophic injuries. These recommen-dations, although focused on prevention ofcatastrophic injuries in football, can beapplied to most all contact sports.

ConclusionAnyone can sue anyone for nearly anything;

these recommendations are not a guaranteethat an athletic trainer will not be sued for analleged breach of the standard of care.Rather, this commentary is intended to

serve as a reminder that the more conservativeapproach the athletic trainer takes in manag-ing football-related injuries – whether itinvolves the assessment of the injured athlete,documentation of the athlete’s injury or edu-cation of the athlete – the more likely the ATmay be to avoid legal liability.Faced with the inevitable sympathy an

injured athlete carries into the courtroom, theideal course is for the athletic trainer to touchall the bases and have the documentation toprove it.

AcknowledgmentsWe acknowledge the efforts of Christa E.

Frank and William B. Conaty of Montgomery,McCracken, Walker & Rhoads, LLP.

16 NATANews September 10 www.nata.org

and may be willing to testify to the specificsunder oath, the absence of such detail in theactual injury record may cast doubt onwhether the specifics are being accuratelyrecalled. Unfortunately, the trials in these casesgenerally occur years after the alleged improp-er conduct.Because plaintiffs’ lawyers will make any

and all efforts to discredit the defendant-ath-letic trainer’s testimony in these actions, themore detailed the medical documentation, themore likely a jury will find the defendant to bea credible witness. Thus, ideally, the docu-mentation of all pertinent information sur-rounding a head injury also should includeany details, including:

— Specific testing and maneuversperformed (for example, jumpingjacks, knee bends, etc.);

— Dates, times and specific locationsof testing;

— The questions asked of the athleteduring testing and the athlete’sresponses.

In other words, the more detailed the ath-letic trainer’s documentation, the better ables/he may be to defend a lawsuit for an allegedbreach of the standard of care. Presumably,more detailed documentation by the athletictrainer, regardless of the injury, should corre-late to better overall care of the injured athlete.

Patient EducationFailure to warn or educate the athlete is yet

another possible allegation against athletictrainers in these cases.

One simple way to prove you have educatedfootball players on the dangers of football, gen-erally, and on the dangers of continuing to playdespite symptoms, is to have them read andsign acknowledgements that they understandthe detailed warning that appears on every foot-ball helmet. This warning states, in part:“Contact in football may result in concus-sion/brain injury, which no helmet can prevent.Symptoms include: loss of consciousness or memo-ry, dizziness, headache, nausea or confusion. Ifyou have symptoms, immediately stop andreport them to your coach, [athletic] trainerand parents. Do not return to a game or contactuntil all symptoms are gone and you receive

medical clearance. Ignoring this warning maylead to another and more serious or fatal braininjury. NO HELMET SYSTEM CAN PRO-TECT YOU FROM SERIOUS BRAINAND/OR NECK INJURIES INCLUDINGPARALYSIS OR DEATH. TO AVOID THESERISKS, DO NOT ENGAGE IN THE SPORTOF FOOTBALL.”

In catastrophic cases where such anacknowledgement of understanding has notbeen secured by the athletic trainer, a “failureto warn” claim almost certainly will be madeagainst the athletic trainer, especially wherethe plaintiffs are alleging the player neverrecovered from an earlier injury.

Thus, before each season, at a minimum,the athletic trainer should require that eachplayer:

— Read a concussion fact sheet, similar tothe one-page document the NCAA andCDC recently produced;

— Read the aforementioned warningon the helmet;

— Sign an acknowledgment that they readand understand both.

Not only do these acknowledgements bythe player serve as a possible defense to a fail-ure to warn claim, but, under certain circum-stances, may also be used to establish the play-er is legally responsible for his own injuries (if,for example, the player is reporting symptomsto teammates but withholds such informationfrom team personnel and nevertheless contin-ues to play).In cases where a defendant asserts and can

show the plaintiff ’s injuries are a result of theplaintiff ’s own negligence, the defendant maybe able to prevail on a theory of “contributorynegligence” or “comparative negligence,”which could bar the plaintiff from recoveringany damages whatsoever.The bottom line is the more education the

AT provides to the player concerning the risksof playing football and, specifically, the risksof returning to play before a complete recov-ery following a head injury (for example, therisk of playing while still symptomatic), thegreater the likelihood of success the AT willhave in defending against a “failure to warn”or “failure to educate” claim.More important, increased education to

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