How schools are approaching the concussions crisis proactively

High schools and districts can expect claims for negligence after athletic injuries
By: | October 16, 2017

While the increasing number of concussion-related injuries in the NFL—and the player lawsuits that followed—have captured the country’s attention, less attention has been paid to the rise of similar claims coming from high school student-athletes.

The litigation exposes high school districts to an increased risk of class-action lawsuits and significant monetary damages. Schools must determine whether their existing insurance will respond to such liabilities.

Lawsuits on the rise

In 2015, Alex Pierscionek, who played football at Chicago’s South Elgin High School, sued the Illinois High School Association over its head injury policies, making it the first state association that could face class-action scrutiny.

While the court dismissed the lawsuit—finding the association had taken steps to make football safer and that imposing costly requirements could force some schools to drop the sport—Pierscionek is not alone. In addition to class-action lawsuits, high school players have also sued as individuals for their injuries.

A U.S. District Court last year awarded a player in Iowa nearly $1 million after a jury found the school district at fault because its nurse was negligent in notifying coaches and the player’s guardian of a possible concussion.

In Florida, the family of a former football player who suffered a serious brain injury on the school’s football field received a $2 million settlement.

Such examples are numerous.

Know your coverage

Football is far from the only sport facing a potential lawsuit epidemic. Field hockey, lacrosse, girls’ soccer and other activities are subject to risk of injury, including concussions. Because of the potential exposure to multimillion dollar liability, school districts and underwriters need to make sure they understand their insurance program.

While each case is unique, high schools and districts can expect claims for negligence, among others, in the coming years.

Some school districts are already procuring the requisite insurance to cover such potential claims.

The Montana High School Association, for instance, now facilitates concussion insurance to cover injuries suffered by student-athletes and cheerleaders at its member institutions.

The insurance coverage will extend to any practice or game in a sport sanctioned by the Montana High School Association and will be the secondary payment option if there are still unpaid deductibles resulting from the athlete’s own insurance payment.

Called HeadStrong, the insurance program thrusts Montana—along with states that have implemented similar programs—to the forefront of those athletic associations approaching the concussions crisis proactively.

Policy changes

Insurance companies have been quick to react and are already offering schools and districts concussion-specific policies. At least one such program includes awareness and education, neurocognitive testing, and access to medical professionals, as well as excess insurance coverage to protect student athletes.

Insurance companies are also tightening up traditional policies by adding exclusions to their policies, capping coverage, wrapping defense costs into limits and charging higher premiums. It is essential to be on the lookout for such changes in policy terms that can open up dangerous coverage gaps.

As the risks of concussion claims—perhaps even class-action lawsuits—continue to rise, school districts should consult with their brokers and educate themselves regarding the insurance policies available to them.

Cort T. Malone is a shareholder in the insurance recovery group of Anderson Kill P.C., and Jorge R. Aviles is an attorney in the same group.