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Nathaniel Ehrlich
Nathaniel Ehrlich
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Managing Liability for Athletic Trainers

7 comments

It won’t be long before athletes report for fall sports practices. One of the most difficult problems facing athletic trainers and team physicians is the recognition and treatment of sport-related concussion. Over 300,000 sports- related traumatic brain injuries occur annually in the United States. In addition to football-related concussions, there is significant risk for concussions for athletes in other sports, including soccer. In fact, female athletes actually have been found to sustain a higher percentage of concussions during games than their male counterparts.

Providing medical clearance for sports participation, return to participation and treatment of athletic injuries therefore involves significant medical issues, and because of the consequences, significant legal issues as well. The NATA has defined an athletic trainer’s responsibilities to an athlete. From that relationship flows recognized legal duties including:

· The duty to properly assess the athlete’s condition;

· The duty to provide or properly refer the athlete for medical treatment; and

· The duty to ensure that there has been proper clearance to participate or return to participation and that the athlete has been properly advised of any risks of participation.

In many instances the athletic trainer is the only trained observer of the initial injury or of the onset of subsequent symptoms. Failing to properly respond to the injury may have significant adverse consequences for the athlete. However determining the appropriate medical standard is difficult, as there is no universally accepted standard for proper assessment and/or prescribed treatment of the injury. Therefore the legal standard to which an athletic trainer will be held is also unclear.

However, criteria is easier to find for what constitutes an appropriate pre-participation examination. If the athletic trainer and team physicians conducted a thorough pre-participation examination, then objective criteria would exist to assist in the evaluation for return to play. Since it is foreseeable that athletes who compete in contact sports may suffer head injury, one would expect an appropriate neuropsychological testing as part of that pre-participation examination. The athletic trainer would then have objective baseline data with which to compare after injury.

Use this off-season to develop a comprehensive risk management program. The athletic trainer should use this time to:

· Identify shortcomings in the current program;
· Evaluate the types of injuries likely to occur in your program, taking into consideration the seriousness of the injuries and the frequency with which those injuries will occur;
· Evaluate the options that exist to reduce risk; and
· Implement appropriate risk reduction policies and procedures.

Your procedures should be sufficient to withstand scrutiny when measured against the standard of care that a reasonably prudent athletic trainer would do in the same or similar circumstance.

Additionally, to further protect yourself from litigation:

· Do you have a good relationship with your athlete? Work to ensure that you act in a manner that shows the athlete and his/her family that you care about them.

· Do you have good record keeping practices? A good record that details the facts and treatment provided to the athlete is essential to a good defense if your treatment is called into question.

· Are you current? You need to be current to ensure that your care is what a reasonable athletic trainer would have done.

7 Comments

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  1. steve says:
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    Proper oral evaluation that has been proven in the NFL and NHL should be mandated. A temporal mandibular joint analysis could link repeated concussion to the need for an orthotic oral appliance, related to orthodontics. These adaptive mouth guards address the imbalances of the “boxers glass Jaw” and have been used for over two decades with the N.E. Patriots. New published data peer reviewed by a Harvard MGH specialist, has been reviewed by military research for an Army initiative on chin strap forces.

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    I have not seen the referenced data. While wearing a mouthguard may be a good idea from the perspective of preventing damage to teeth, it is my understanding that neurological experts have dismissed any claim that wearing a mouthguard would prevent a concussion.

  3. steve says:
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    Exactly, mouth guards designed to protect teeth do just that, they have limits. An orthotic oral appliance that primarily positions the end of the jawbone in relation to the skullbase shows promise.

    http://www.ncbi.nlm.nih.gov/pubmed/19614931

    The linked study has been peer reviewed by a Harvard specialist and recommended for a military research initiative. Military neurologist are focused on this as one means of prevention. Because no data is in the books, is the only reason this innovation has not been accepted by the neuro community. If you have a concussion history and jaw related injury/ dysfunction, this medically fit appliance and evaluation should help.

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    From a legal perspective, this would not appear to be sufficient for this to be “standard of care”. Risk management procedures are measured against the standard of care that a reasonably prudent professional would do in the same or similar circumstance. Certainly, adherence to outdated sports medicine guidelines will not protect the athletic trainer from liability. Therefore, the athletic trainer should make certain that they are current as the practice of sports medicine evolves. If appropriate medical organizations determine that the research supports such claims and revise their standards to recommend mouthguards or orthodontic devices, athletic trainers and other sports medicine professionals need to be aware of that change.

  5. steve says:
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    Well put, that is exactly what our research initiative is set out to do. Raise the standard of care. Much of what we are doing is already recognized by the ADA for migraines and night grinding, its use in those with both TMD and concussion history is the next frontier in oral protection. Thanks

  6. Steve Bair says:
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    All outstanding information, but you need to touch on the fact that many schools and almost no club sports teams have access to this healthcare professional. Every school needs someone to supervise neurocognitive testing, provide injury documetion and to determine when the child is ready to receive medical clearence. Thios is a full time job. The liability of not providing this care falls squarely on the shoulders of club officials and schoolboards.

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    That is an excellent point. The Kleinknecht case points out that schools owe a duty of care to provide prompt and adequate emergency medical services to one of its intercollegiate athletes while engaged in a school-sponsored athletic activity. The courts have further held that it is foreseeable that a member of a school’s interscholastic teams could suffer a serious injury or life threatening event while engaged in athletic activity. Therefore it is reasonable to expect that the school would protect against such risk. The court noted, “The foreseeable harm — irreparable injury or death to one of its student athletes as a result of inadequate preventive emergency measures — is indisputable.”