Tag Archives: liability

State High School Athletic Associations Get Proactive with Concussion Insurance

(Editor’s Note: What follows is a brief excerpt of an article written by Brennah Blackwelder that appeared in the August 2015 Concussion Litigation Alert. For the rest of the article and numerous others, please subscribe athttp://concussionpolicyandthelaw.com/subscribe/)

Leave it to the state known for its “Big Sky” to bring even more clarity to the cloudiness regarding concussion insurance and high school student athletes.

The Montana High School Association (MHSA) announced earlier this summer that it would facilitate concussion insurance for the student-athletes at its member institutions. Called HeadStrong, the insurance program thrusts Montana, as well as Michigan, which also implemented the program, to the forefront of those high school athletic associations that are being proactive about the concussions crisis.

With HeadStrong, which is managed by Dissinger Reed Insurance in Overland Park, KS, student athletes can seek prompt, professional attention at the first sign of a possible concussion.

MHSA Executive Director Mark Beckman told Concussion Litigation Reporter that “providing this concussion insurance is just one of the proactive measures implemented by the MHSA, which along with our other proactive policies will hopefully reduce legal exposure for our association and member schools.”

He also believes more states “will be reviewing this coverage for possible implementation,” especially given the “reasonable cost of the premium for each individual participant.” The maximum benefit of $25,000 per injury per year comes with a $0 deductible per claim. The coverage, which Beckman said the membership “overwhelmingly supported,” will cost each member school just $1.50 per athlete annually in premiums.

Given today’s high-deductible plans and co-pays, he believes parents will be more proactive than ever about bringing their son or daughter in to be checked.

Besides the new coverage, the MHSA is taking other steps ….

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Federal Judge Finds for School District, Others in Concussion Case

(Editor’s Note: What follows is a brief excerpt from a case summary in the June 2015 Concussion Litigation Reporter. For more details on the case and numerous others, please subscribe at http://concussionpolicyandthelaw.com/subscribe/)

A federal judge has dismissed the lawsuit of a high school student athlete in a case that tested the limits to which public high school coaches, administrators and school districts can be held liable for concussions sustained by student athletes during interscholastic competition.

In so ruling, the court found that the defendants’ conduct did not abridge the plaintiff’s Constitutional rights. In addition, the defendants are immune from the state’s tort liability law. However, the plaintiff may file an amended complaint with regard to some aspects of her claim.

The plaintiff, now 17, suffered the concussion during a preseason soccer scrimmage in 2012. The plaintiff collided with another player while going for a header. The plaintiff alleged that she heard the opposing coach say she should be taken out of the game. One of her teammates allegedly told the coach that the plaintiff had been hit in the head and needed to come out of the game to be evaluated. The plaintiff stayed in for the rest of the game, during which time she had collisions with other players and headed the ball several more times. She began to experience headaches on the bus ride home from the scrimmage. The next day, she was dizzy and had black spots in her field of vision.

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NCAA Concussion Lawsuits a Plea for Strict Liability

(Editor’s Note: What follows is a brief excerpt from a contributed article in the June 2015 Concussion Litigation Alert. For the rest of the article and numerous others, please subscribe at http://concussionpolicyandthelaw.com/subscribe/)

By Barbara Osborne, J.D.

University of North Carolina at Chapel Hill

As of this writing, the NCAA Concussion Litigation settlement has still not been approved.  U.S. District Court Judge Lee rejected first settlement, expressing uncertainty whether the $70 million testing fund was enough and lack of clarity in the way that the NCAA would enforce its concussion management policy.  The new offer, filed April 15, 2015, does not specify a limit on the amount of funding to provide testing for student-athletes and former student-athletes who have suffered brain injuries.

While NCAA-bashing has become a popular sport of its own, the plaintiffs in the various lawsuits are misguided in directly their claims at the NCAA.  The NCAA is a voluntary membership association; schools are not required to join an association.  If a school chooses the join, they assume the responsibility of following the rules.  However, the concept of institutional autonomy is a bedrock principle of NCAA membership.  Schools independently determine how to manage their athletics programs and are only subject to NCAA interference if they violate an NCAA rule.

Article 3 of the NCAA Constitution delineates expectations for members.  All active members are required to have a Concussion Management Plan (3.2.4.17) since August 2010.  In January 2015, requirements for a Concussion Safety Protocol (3.2.4.17.1) and to provide that information to a Concussion Safety Protocol Committee (3.2.4.17.1.1) were added.  The addition of these requirements to the organizational constitution begs the question:  do these rules establish a duty by the NCAA to student-athletes relative to head injury?   If so, should the NCAA be liable for student-athletes who suffer head injury as a result of athletics participation?

The basic elements of a negligence claim are duty, breach, causation and damage.  Duty is established by a special relationship between the parties or by statute.  Historically, the NCAA does not have a duty to protect student-athletes, as they are not members of the NCAA.  Student-athletes are third party beneficiaries of the relationship between the NCAA and the member school.  As such, the duty to provide a safe program for student-athletes lies within each member institution.  However, if one were to equate the constitution and bylaws of the organization with that of our governing Constitution and statutes, it is possible to make a straight-faced argument that the NCAA voluntarily assumed a duty through these membership requirements.

Assuming that duty was established by the membership requirements, an injured student-athlete would still have to prove breach and causation in order to succeed in a negligence claim.  Breach could be established if … (to read more, please subscribe at the link above.)

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