 "An
Effective Concussion Management Program Will Help Schools Meet Their
Legal Responsibilities To Students"
Robert Kirwan
President & CEO
As we learn more and more about concussions we
are finding that repeat concussions are occurring at alarming
rates. This is
causing many insurance carriers to examine the risk of
providing coverage for this type of injury. In fact there are
some professional leagues that simply cannot get insurance for
athletes who are unable to play because of concussions. Some are
only allowed one concussion per career, and then after that the team
must pick up the full cost of the contract.
While we do not worry about coverage to replace salaries for
student-athletes, school officials must nevertheless be concerned
about the ramifications of contributing to life-altering
consequences that are caused by ineffective concussion management
policies. We have given full consideration of this legal reality
when designing the CMP Student-Athlete Concussion Management
Program.
Provincial and State legislation imposes upon teachers,
principals and school boards a responsibility to ensure the safety
of all students in their care. This duty of care applies to sport
activities as well as all other activities that are run by the
school.
 Because of
what we are discovering about the human brain, it won't be long
before the issue of negligence is brought up with school boards,
teachers and coaches when it comes to brain trauma in
student-athletes. At this point we do not see much change in the
risk of being accused of being negligent when it comes to
student-athletes receiving their first concussion. After all, as
long as the coaches have trained the players and have provided a
reasonable level of care, injuries in competition will be treated as
the nature of the game. Anyone who participates in school sports
understands that there is an inherent risk of injury.
However, when it comes to the return to play of a student-athlete
who has suffered a concussion, we now know a lot more than we knew a
few years ago. We know the potential consequences of returning a
player too soon. We know that the chance of a repeat concussion is
high, especially if the first concussion didn't have sufficient time
to heal.
We also know the importance of having a concussion management
protocol in place at every secondary school. In fact, it is a legal
requirement in most jurisdictions today, so schools do have a
protocol in place. The problem that will soon begin to come up is
with respect to the effectiveness of the protocols that the school
has adopted. There are some concussion management protocols that are
not worth the paper they were written on. And with the advances that
are being made with respect to brain trauma and concussions, it
would be extremely hard for a school administrator to defend some of
these ineffective protocols when more effective ones were readily
available. Unfortunately, when it comes to our duty of care and the
whole area of negligence, "lack of budget" will not be a
defense. Courts will expect that schools will find the money from
somewhere in order to protect the health and well-being of the
students in their care.
That being said, schools owe student-athletes a duty to take
reasonable care not to put them in situations where they may be
injured or suffer life-altering consequences that will damage their
future. The CMP Student-Athlete Concussion Management Program has
put in place such a comprehensive framework that it would be
virtually impossible for anyone to claim that the school was
negligent in caring for a student-athlete who has suffered a
concussion.
By following the identification and rehabilitation protocols we
have put in place, there is very little risk of returning an injured
student-athlete to play prematurely. That doesn't mean that he/she
will never get a repeat concussion, but it certainly won't be
because of the negligence on the part of the coach or any of the
partners involved in the program.
This is why we demand clearances from a medical practitioner and
the parent. It is why we require an evaluation from a
neuropsychologist indicating that the student's ImPACT results are
back to baseline. It is why we require the student-athlete
him/herself to sign a declaration that there are no more known
symptoms from the injury. It is why we require a clearance from the
School CMP Leader, who will consult with the child's classroom
teachers prior to giving permission for the student-athlete to
return to physical training. And finally, after all of the above, it
is why we require the School CMP Head Coach to review the results of
the training program with the School CMP Leader to get a final
clearance to resume practice with full contact and competition.
It would be hard for anyone to find the actions of a school
covered by the CMP Student-Athlete Concussion Management Program to
be negligent in the care and duty owed to its students. If anything,
we have gone over and above the requirements that could be imposed
by any level of government.
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