A legal reality check on sports-related concussion
Technological and medical advancements are progressing to produce improved methods to prevent and detect sports-related concussions (SRC), which in turn present additional obligations in risk management. At the same time, we have seen a significant increase in claims in the US arising from SRC injuries, particularly litigation by players and their families against the National Football League (NFL) and other sports leagues, although we have also seen claims involving teams, universities, medical practitioners and sports equipment manufacturers. All of which has raised the profile of such claims in the UK, in particular in relation to football and rugby.
Prevention and detection
Wearable tech is already in use in the NFL, with the Riddell Sideline Response System, which is a real-time monitoring tool, used by American football teams to manage athletes’ head impact exposure. The VICIS helmet is also used in American football and has inner layers consisting of columns that compress and deform on impact, absorbing blows like a car bumper. In addition, a woodpecker-inspired solution is under consideration in the US, which is a Q-Collar worn round the neck, designed to constrict the jugular vein, in the same way as a woodpeckers tongue, to replicate the cushioning effect.
In the UK, Imperial College London is developing an in-the-ear system for monitoring brain function during play. It is to be tested in rugby and aims to measure the immediate effects of SRCs. This is in addition to the work of Professor Belli at Birmingham University, who, in conjunction with the Rugby Football Union, is developing a method of using biomarkers in sputum for the rapid diagnosis of SRCs.
All this technology presents huge opportunities in the determination and prevention of SRCs. It also raises the possibility of an additional duty of care owed to the player.
To succeed in an action of negligence, a claimant must be able to prove that a duty a care was owed, that the duty was breached, and that the breach caused the damage suffered. With SRCs, this equates to sporting bodies, officials and participants, owing an ever expanding duty of care to players to act reasonably to prevent, minimise, diagnose and treat SRCs, and to have clear and up-to-date procedures in such things as the:
- Assessment and communication of risk
- Competence of coaches, supervisors and referees
- Provision of appropriate medical advisers
- Use of sporting equipment and training methods
- Use of concussion protocols, such as the Football Association’s, ‘if in doubt, sit them out’ guidelines.
If a breach of duty is established, the claimant then has the significant challenge of proving that the damage suffered, the concussion, and its effects, were a result of that breach. Although there is difficulty in establishing SRC as both the reporting of symptoms and the concussive assessment are subjective, the potential losses involved (and exposure to defending claims, even if successful) can be substantial particularly to the extent that claimants may allege certain long-term conditions despite the lack of generally accepted science connecting such conditions to SRC’s.
As research, products and procedures develop in the field of sports concussion, the threat of litigation increases. This will likely result in a greater focus on the key legal issues of breach of duty and causation. Insurers will therefore need to ensure duty holders plan accordingly and seek relevant advice on policy requirements, level of exposure and adequate limits of indemnity. Alternatively, depending on the nature of a duty holder’s risks, insurers may consider, and increasingly are placing, specific exclusion endorsements limiting or eliminating coverage for SRC-related claims.
A version of this article was originally published in December 2018 in Insurance Day