Although the sports medicine community has not come to a consensus, there are two methods of objective testing that may satisfy the reasonableness test: neuropsychological testing and postural stability testing.
Neuropsychological testing measures the athlete's cognitive flexibility, attention span, orientation, concentration, visual-spatial capacity, distractibility, immediate memory recall, and problem-solving abilities.
These tests directly measure the cognitive qualities that are affected by head injury and allow athletic trainers to objectively evaluate the athlete's condition.
The administration of these tests generally occurs in a clinical setting, although recent research indicates that athletic trainers may also administer neuropsychological tests on the sidelines and achieve valid results. The National Football League and National Hockey League currently use neuropsychological testing to assess professional athletes' cognitive abilities, establishing that it is reasonable to employ these tests as a standard for assessing, treating, and making return-to-play decisions.
Similarly, researchers have established that postural stability tests are reasonable to use in determining when symptoms of concussion cease. These objective tests use sophisticated force plate systems to challenge sensory systems involved in balance by altering visual and support surface conditions.
Although it may not be reasonable to expect the average athletic trainer to have access to this type of equipment, research indicates that there is a significant correlation between the results of simple tests that the athletic trainer can conduct on the sideline and the results of sophisticated postural stability tests.
One of the reasons that athletic trainers rely so heavily on subjective measures and personal intuition when evaluating an athlete with a head injury is that they have nothing for comparison. Athletic trainers and team physicians routinely conduct pre-participation examinations to determine if an athlete has a condition that would preclude participation in sports.
Although reported legal decisions provide little guidance regarding the appropriate nature and scope of a standard pre-participation examination, many lawsuits allege that the sports medicine professional did not discover a medical condition that later resulted in injury or death.
Informed Consent
Generally the law has found that physicians who conduct a thorough pre-participation examination in conformity with accepted standards of practice are not liable for the athlete's injuries that occurred post examination.
Sports medicine professionals should always consider the intensity and physical demands of the athlete's sport, all objective clinical evidence, and the probability and severity of harm from athletic participation given the athlete's condition. Failure to provide an athlete with full disclosure of material information about playing a sport with a medical condition or the potential consequences creates liability for negligence. This duty to disclose relevant information relates to the issue of informed consent.
Informed consent is usually a defense for assault and battery, but courts have translated this concept into negligence terminology. Informed consent comes from the public policy that a competent adult has the legal right to determine what to do with their body. As such, adults may provide consent, but minors require consent by a parent or guardian.
The consent must represent an informed decision regarding the risks of treatment and participation. For an athlete's decision to be informed, the sports medicine professional must clearly warn of all material, short-term, and long-term medical risks of continued athletic participation under the circumstances. Athletic trainers and team physicians can share liability if more than one person, other than the athlete, contributed to any injury.
If negligence can be associated to a sports accident or injury there are potential damages, which the injured party can collect. The athlete must prove by a preponderance of the evidence that a breach of some type was in fact the legal cause of the injury.
In a negligence case, the injured party generally seeks financial damages for the following areas: past, present, and future pain and suffering; past, present, and future medical expenses; and past, present, and future diminution of earning cap. |
