07/20/2015

Concussions & Sports–Legal & Ethical Review: Part 4

Unclear legislation endangers athletes

Good news: your state has youth concussion legislation on the books.

Bad news: the legislation doesn’t define what a “youth” is, exactly.

“Additionally,” note the authors8 of the Journal’s section on state law, “several states reported a lack of legislative consideration as to which authority held responsibility for implementation. In several cases, agencies reported that the law required the agency to cover a broader population than their typical activities.”

The biggest concern is with return-to-play assessments. “Factors reported as considerations included uncertainty as to the level of specialized knowledge needed to assess concussed athletes, as well as concerns for access, particularly in rural and medically underserved areas,” write the authors.

This same lack of clarity plagues the issue of enforcement of these laws. “Our findings indicate enforcement of youth sports concussion laws is largely nonexistent,” say the authors, “due to the absence of such language in the laws and uncertainty about under whose purview enforcement falls.”

The authors of the Neurology article echo these concerns. “[S]tatutes differ as to who may provide clearance to return to play: some states only allow physicians to make this decision, while others permit athletic trainers, nurse practitioners, and physician assistants to do so.”4 Even more troubling is the fact that state laws are not uniform in stipulating that those able to give clearance be specifically trained in concussion evaluation.

Liability protections are also varied, and it’s important that those in charge of evaluating player health understand these issues. For instance, there are states where volunteers are protected while, in other states those protections do not exist.

Still, it’s important to not conflate athlete safety with obeying the letter of the law. As has been shown, living up to legal requirements is often a far cry from protecting athletes from the damaging effects of concussion.

The National Athletic Trainers’ Association has taken a lead role in trying to push for federal legislation which, in theory, could help to unify standards of care, concussion education, and could pave the way toward a national research effort. Three such pieces of legislation were introduced in February of 2015.9

Despite these positive steps, sports concussions are increasingly becoming sources of litigation. In April of 2015, filings were made in the U.S. District Court in Chicago regarding a possible settlement for a head injury lawsuit against the NCAA.10 “The core of the new agreement is the same as the one [U.S. District Judge John] Lee rejected, including calling on the governing body of college athletics to create a $70 million fund to test current and former athletes in contact and non-contact sports for brain trauma,” writes the Chicago Tribune. “Among other things, it also requires the NCAA to toughen return-to-play rules after a concussion.” It’s thought that the judiciary is looking for concussion research funds to be a key part of any settlement agreement.



4Matthew P. Kirschen, MD, PhD., et al, “Legal and ethical implications in the evaluation and management of sports-related concussion ,” Neurology, 83:4 (2014): 352 - 358.
8Kerri McGowan Lowrey, J.D., M.P.H., and Stephanie R. Morain, Ph.D., M.P.H., “State Experiences Implementing Youth Sports Concussion Laws ,” The Journal of Law, Medicine & Ethics, 42:3 (2014): 290 - 299.
9“A Busy Week for AT Legislation,” last modified February 16, 2015, http://www.nata.org/nata-news-blog/busy-week-legislation?page=1.
10“New concussions deal with NCAA proposed,” last modified April 15, 2015, http://www.chicagotribune.com/sports/college/chi-ncaa-concussion-lawsuit....

Photo courtesy of Brian Turner
A Legal & Ethical Review of CONCUSSIONS & SPORTS
A Legal & Ethical Review of CONCUSSIONS & SPORTS
Key Takeaways for the Athletic Trainer, Athletic Director, Coach, Heath Care Provider, and Parent