Legal Issues of Return-to-Play Protocols for Injuries

As any administrator, coach or athletic trainer (AT) knows, injuries are inherent to participation in school-based athletics. The larger the number of participants a school has, the more likely that school is to have a student-athlete suffer a significant injury. Also, collision and contact sports such as football or soccer have a higher incidence of injury than non-contact sports such as golf or tennis.

Once a student-athlete is injured there is sometimes a difference in opinion as to what the activity level of the returning student- athlete should be. It is critically important that any assertion of injury to an athlete be respected and responded to with intention and deliberation, and it does not matter who claims the injury – athlete, coach, parent or peer. The medical staff/AT has a duty to follow up and render diagnosis and aid, and if necessary, a referral to a physician for further evaluation and necessary treatment. As such, it is critical that there is a clearly expressed protocol as to what must occur before any athlete is allowed back in competition and practice. A key question is, “Where is your protocol written?”

When a student-athlete is injured, the student should see either the school’s athletic trainer or a medical provider for an injury evaluation. Unfortunately, the student is oftentimes deemed to be unable to participate safely without further chance of injury.

In a perfect world when this happens the student-athlete, the coaching staff and their parent or guardian all agree and allow the student-athlete to recuperate the amount of time that is needed to fully recover so that the student can return to their sport without restrictions. Most of the time, the student-athlete may have the evaluation of an athletic trainer or simply a note from a medical provider stating that they are out for a predetermined amount of time. However, that is not always the case.

Often, the student-athlete or someone else (parent, coach, other) may want to challenge the decision of the athletic trainer or medical provider. When that happens, what is the school legally required to do? Administrators not only want to make sure that the student-athlete is safely participating, but they also do not want to put the school or the district in legal jeopardy. This is where it is critical to know and understand the concept of duty and agency – what is the duty of the medical professional relative to the athlete, and that the medical professional is the agent of the school, and subsequent action taken legally binds the school/district to the resulting decisions.

What follows are common scenarios that occur in the secondary school setting and what approaches meet the legal duties and protect the agency relationship between MD/AT and the school.

Example 1 – The school’s athletic trainer believes that a student has an injury and should not participate. The parents of the student take the student to a friend who is a medical provider who writes the athlete a clearance note. The athletic trainer feels that the note was written without proper evaluation but allows the student to participate in their sport and then the student becomes further injured.

The athletic trainer has a duty to evaluate and make their best recommendation. Based on that evaluation, the AT must then articulate their best professional judgment to the parents. If the parents disagree, and then secure an MD note, the AT is presumptively protected by the existence of that MD clearance note. However, apart from the concern that the note was written without proper evaluation, if the AT believes that lack of a full health evaluation puts the athlete at severe life or health risk, the AT should bring those concerns to the athletic director and then the athletic director is responsible for navigating a solution. Any ultimate solution must include holding the student out of continued activities until there is a final determination. This then shifts the burden to the parents to take further action if they choose.

Something as simple as having a more intensive/comprehensive medical evaluation may satisfy any concern. Also, if such a note is presented, it is incumbent on the athletic director to ensure the note is written by an MD in the field. An example would be a note written by a psychiatrist for a knee injury – both MDs. A note provided by an orthopedist would be more satisfactory and reliable.

Example 2 – A student is diagnosed with a concussion right before the playoffs during the athlete’s senior year. The parents do not want their child to miss playing in the playoffs and offer to sign a waiver that allows the student to participate in the contests even though the athlete had a concussion.

No contest is worth the potential of death. Many states have laws that clearly define the concussion RTP protocol, and limit/ restrict when an athlete can return to play after a concussion diagnosis. That protocol must be followed with no deviation. Though the parents may be willing to waive such concerns, the athlete may not want to. Also, a waiver is a contract, and parties cannot legally or contractually waive liability. Chances are if an athlete would be allowed to play under such circumstances, it most likely would be against medical advice, and would be a violation of state law also. DO NOT DO THIS!

Example 3 – A coach is given a note from a doctor stating that a student is out of activity for two weeks because of an injury. The coach after speaking with the student feels that the student isn’t really that injured and allows the athlete to participate.

An athletic director’s duty would be to immediately suspend the coach. The coach is both your agent, and the agent of the school and school district, and the coach’s actions bind both the athletic director and the district to any financial award that would most certainly result from a second injury due to the coach’s extremely poor judgment, which borders on insubordination. Coaches should never substitute their judgment for the professional judgment of an MD or AT. This needs to be communicated to your coaching staff as often as possible. Never take for granted that anyone knows this duty.

Example 4 – A student-athlete suffers a knee injury, and an orthopedist does not clear the athlete to return to athletic competition. The parents, wanting their child to be able to participate in the games, take their child to their pediatrician and does not give the pediatrician the full history, and the pediatrician then clears the student for participation.

Neither the coach nor the athletic director is, or should be, the arbiter of which MD knows best. Always default to the note that limits participation. Typically, a second opinion note under these circumstances is written without full knowledge of the entirety of the circumstance.

Remember, the goal is for the athletic director to ensure a satisfactory and safe solution which prioritizes a student-athlete’s health while doing everything to help the student get back to participation. One way to do this is for the athletic director, the AT or the school nurse to contact the pediatrician to inquire as to whether the pediatrician knows that there is already a note from a specialist. This would not be to create conflict but would be done to ensure that the school is complying with its due-diligence requirements relating to student-athlete safety.

Example 5 – To be a cheerleader at the school, the student must go through the tryout process. The student has an injury and is unable to try out because the student is not medically cleared. What can or should the school do?

Injuries frequently impair an athlete’s ability to try out in a timely fashion. There is not a legal duty attached to the right to try out; however, each school should have an articulable alternative tryout schedule for those who are injured. After all, we speak many times about the importance of participating in multiple sports and activities, and we do not want to artificially limit such participation due to things beyond the student’s control. Post-injury recovery tryout options save the athletic director and coach from self-inflicted and unnecessary frustration. Everyone deserves to have a tryout – the goodwill for school programs and coaches is immeasurable when later tryouts for injured athletes is allowed.

Example 6 – A student-athlete has not been medically cleared following a surgery or injury, and, as a result, is not participating on the school team. The coach finds out that the student is playing on a club team on the weekends. Even though the student has not been cleared by a physician, the coach now wants the athlete to play on the school team since the student is playing on a club team. What should the school do?

Follow the physician instructions with fidelity. Accept that some athletes, with parental permission, will put their bodies at increased risk of injury. However, that in no way changes the school’s duty. Remember, when circumstances like this arise, there are hundreds, if not thousands, of eyes on the school administration and coaching staff to ensure that student safety is THE priority – even if it means “going to battle” with some parents. The message must always be that the health and safety of the student is Priority 1. Otherwise, the building leadership is suspect.

These, obviously, are not the only issues that an administrator may deal with that have a legal component attached. That being said, it’s just a small sampling of the type of issues that arise on a regular basis. It is important for the administrator to know that making the right decision to support not only the health of the student- athlete but also the legal standing of the school district is very important. Making the wrong decision could have possible longterm health and safety ramifications.