Concussion Legislation: Worth the Paper it’s Written On?

(Editor’s Note: The following article was written by Barbara Osborne, J.D., a sports law professor at the University of North Carolina at Chapel Hill. It appears in the September issue of Concussion Litigation Reporter, which can be accessed here — https://concussionpolicyandthelaw.com/concussion-litigation-reporter/concussion-litigation-reporter-september-2012/)

It is unlikely that you can turn on Sports Center or open up the sports pages without reading something about medical risks associated with sport-related concussion. Concussion is also a hot legal topic . As of May 16, 2012, 124 lawsuits involving more than 3,236 former players have been filed against the NFL for failing to warn and protect players against the long-term risks associated with football related concussions.

Similarly, two lawsuits have been filed against the NCAA by athletes who claim to suffer the residual effects of head injuries (Arrington v. National Collegiate Athletic Association et al, 2011; Owens v. NCAA, 2011).

As public awareness of the serious medical risks associated with sports-related concussion has grown, states have been rapidly enacting sport-related head injury legislation. Will this legislation serve as a public health policy tool in the prevention of injury and disease? What is the purpose and role of the legislation, and what are the strengths and weaknesses?

Washington was the first state to enact concussion legislation, spurred on by the tragic story of Zackery Lystedt, a middle school football player who suffered a serious brain injury when he returned to play soon after sustaining a concussion. The Lystedt family and various medical experts lobbied the Washington state legislature for a law to protect young athletes in all sports from returning to play too soon. The Lystedt Law has served as model legislation and contains three primary components:

1.Education: Informing youth athletes, their parents and guardians, and coaches of the dangers of concussion;

2.Remove from play: Because concussion is difficult to diagnose, policy should require an athlete who appears to have suffered a concussion be removed from practice or play.

3. Medical approval: The athlete must be cleared by a licensed health care professional before returning to play or practice.

Concussion legislation appears universally popular: 40 states have enacted legislation, 9 states are currently considering concussion bills, and 4 states have bills pending that would amend their current legislation. Only 2 states have not enacted any type of concussion legislation whatsoever.  The purpose for the legislation is seldom stated. Only 12 states expressly state a purpose, with education, concussion prevention and increased safety being the primary reasons.

Most states follow the 3 main components format of the Lystedt Law. In the education component, 33 states require a mandatory information or fact sheet be given to athletes and parents; the CDC information sheet is the one most often referenced.

Although football coaches are often criticized for teaching young athletes to lead with their head, only 18 states include mandatory concussion education or training for coaches. Only one state, Rhode Island, encourages pre-participation baseline testing of athletes as well as educating them of the risks of concussion.

The “removal” component of the model legislation has gained the most traction, with 37 states requiring athletes to be immediately removed from practice or game situations when a concussion is suspected. Erring on the side of caution is recommended, reinforcing the “when in doubt, sit them out” mantra.

Once an athlete has been removed from play, return-to-play requirements in the statutes are quite varied or lacking. Only 6 states require an athlete to be symptom free, following the current best practices recommendations of sports medicine professionals. Another 6 states require the athlete to sit out at least one day, which is well below the recommended guidelines and may continue to put athletes at risk for second impact syndrome. Only one state, New Mexico requires athletes to sit out a full week.

There is also considerable variation by state regarding who may make the decision whether an athlete can return to play. 22 states require approval by a “licensed health care professional trained in the management of concussions”, most without specifying what concussion management training entails. 9 states designate approval specifically by a physician, physician’s assistant, registered nurse, athletic trainer, or psychologist, while another 5 states limit the return-to-play decision to physicians only. It doesn’t take much imagination to assume that lobbyists for the various health care professions had some influence over this component of the statutes. Utah’s requirement stood out as unique and effective: an athlete may be approved to return to play by any licensed health care professional who has taken a continuing education class in concussion in the past three years. In 3 states, no approval by any sort of health care professional is necessary, and one statute is silent on the issue.

One apparent weakness of the concussion statutes is … (To read the rest of the story, click here — https://concussionpolicyandthelaw.com/concussion-litigation-reporter/concussion-litigation-reporter-september-2012/)

 

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