While reports of NFL concussion litigation have littered the news, other professional sports leagues have taken notice of the dangers of concussions. Consequently, several leagues have heightened their return to play requirements for athletes that may have suffered a concussion.

It is not clear whether these new guidelines effectively minimize the impact of concussions at the professional level; rather, it seems that the new guidelines still allow too great a risk that concussed athletes will return to play by placing too much discretion with “motivated athletes” and team physicians.

There can be no denying that athletes and non-athletes are two completely different types of patients. According to James H. Davis, author of "Fixing" the Standard of Care: Motivated Athletes and Medical Malpractice, when a non-athlete visits a doctor, he or she ordinarily wants to be cured by the least drastic course of treatment possible. In contrast, the motivated athlete may want to be fixed instead of being cured. For instance, when a non-athlete breaks a finger, it can be reasonably expected that he or she will refrain from activity likely to aggravate the broken finger until it has completely healed. However, it is not out of the ordinary for an athlete to attempt to tape the broken finger and resume activity as quickly as possible.

The same mentality exists when athletes realize they are suffering from cognitive injuries like concussions. Former NHL defenseman Jamie Heward, who was forced into retirement because of concussion complications, conceded that he had concealed concussion symptoms from team trainers out of fear that revealing his symptoms would compromise his career. At a conference to raise awareness of this issue, Heward noted that, “When I got hit the first reaction was. . . [i]f I don’t get back on the ice, I’m not going to get paid. Somebody’s going to take my job and I need to get back on the ice.”

Heward claimed this was not only his train of thought, but the dominant thought process of many professional athletes. Heward alleged that athletes will blatantly lie to trainers in order avoid being removed from the lineup.

This allegation is corroborated by a December 2009 Associated Press report that twenty percent of 160 NFL athletes surveyed admitted to hiding or downplaying the effects of concussions. Indeed, after an anonymous NFL athlete was questioned about the cause of a recent concussion, he was quoted in a January 2011 The New Yorker article as saying, “I’m always concussed, they just caught me this week.”

The tendency of the motivated athlete has the potential to cause tremendous causation problems for prospective allegations of medical malpractice against team-physicians. If an athlete causes his own injury by concealing an earlier injury from team medical staff then he ought to be unsuccessful in a medical malpractice action against the team physician. This makes sense given that a physician cannot breach a duty if he has no reason to know that an athlete-patient is hurt. However, it cannot be assumed that all athletes conceal their injuries. To do so would essentially prevent an athlete from negating causation of his own injuries and, consequently, from bringing a successful medical malpractice action against a team-physician who has engaged in medical malpractice.

There are exceptions to this rule, for example, in instances where a physician should have known about an injury despite an attempted concealment by an athlete. It is important to note that the issue is not black and white, and that there are instances where the athlete and physician are both legally responsible for an injury.

As Michael Landis states in his 2003 article, The Team Physician: An Analysis of the Causes of Action, Conflicts, Defenses and Improvements for the DePaul Journal of Sports Law & Contemporary Problems, the loyalty a team-physician has to an athlete patient is often compromised by the physician’s desire for fame and success and various conflicts of interest that lend themselves to the position. The possibility that such factors might persuade a team-physician’s loyalty to favour the team over the athlete complicates the task of assigning negligence where an athlete prematurely returns to play. For instance, the position of team-physician carries with it numerous potential conflicts of interest, given the physician’s ethical obligation in treating patients. Such conflicts of interest include the team-physician and management, the team physician and the athlete-patient, the team-physician and third parties, and the team-physician and the athlete’s family.

The tension between the tendency of motivated athletes and physician discretion is particularly dangerous given the invisible nature of concussions. Additionally, if an athlete prematurely returns to play before recovering from a concussion, under the current policies it is difficult to know if it is the result of a physician’s abuse of discretion or a motivated athlete’s concealment of symptoms, or both. Consequently, it is difficult to determine whether the physician or athlete is a proximate cause of the injuries that an athlete suffers as a result of a premature return to action without solely relying on testimony about what was or was not conveyed to the physician during an examination.

In order to avoid reliance on the testimony of physicians and athletes during litigation, there ought to be more objectivity infused into the return to play policy

While technology that is able to detect the actual occurrence of a concussion does not exist, technology does exist to detect impact conditions likely to cause a concussion. Riddell Sports’ patented Head Impact Telemetry System (HITS) functions as a concussion early-warning system and a way to cumulatively track head hits during a game. HITS is marketed by Riddell as a helmet that contains sensors tucked into the padding of each helmet that detects “any shock above a pre-set threshold.” The device can be programmed to contact team-physicians whenever a hit exceeds a certain force, thereby notifying them to examine the athlete for signs of a concussion.

This technology represents a significant step forward from the current concussion management protocol in the NHL and NFL, where sideline concussion testing is only performed after someone notices an athlete displaying symptoms. HITS technology changes the picture of legal liability in the context of sports concussions.

An objective threshold by which to examine athletes that is free from human discretion effectively minimizes the concern that an athlete might be attempting to conceal an injury. Additionally, use of HITS technology would advise an athlete whether he has likely suffered a concussion, thereby informing the comparative negligence assessment of whether an athlete is aware of the risks associated with returning to action.

If concussion management is to be taken seriously, objective policies and practices should be mandatory in all professional contact sports.

About the Author

Mitch Koczerginski is a law student of the dual J.D. program with Michigan State University College of Law and University of Ottawa Faculty of Law. Mitch is an avid sports fan with an interest in litigation and both labour and employment law.

What is a Concussion?

A concussion, or ‘mild traumatic brain injury’, is generally defined as a head injury with a temporary loss of brain function, which can cause a variety of cognitive, physical and emotional symptoms.

Concussions are caused by trauma such as a blow to the head or sudden acceleration forces. Concussions are also caused by blows to the body, the force of which can cause the brain to move within the skull.

The forces involved disrupt cellular processes in the brain for days or weeks. The mechanism of concussion is not clearly known and is widely debated in the medical field; whether or not a concussion constitutes structural damage to the brain or entails a loss of function due to physiological damage such as cellular and neurological behaviour. Physiological damage is more difficult to detect with modern medical imaging and so a concussion can easily be missed or dismissed.