WHEN IS A CONCUSSION NOT A CONCUSSION?

We can expect concussions not to be concussions whenever they're called by another name, for instance, elbow or knee injury, or even neck contusion, or, for that matter, head injury without concussion. Because of careless legislative writing, Assemblywoman Hayashi's bill, AB 25, now law, is expected to have consequences unanticipated by legislators. In football, some head injuries occur after a tackle when the player falls backwards, bouncing his head against the turf, but not getting overtly knocked out. The American Academy of Neurology has defined such an injury as one in which the injured party has had his "bell rung." Such an injury may be defined as concussion without loss of consciousness.

Up until 1 January 2012 when Hayashi's legislation became law, decisions could be made on the field, sometimes incorrectly. Now the onus has changed: once a player is removed because of a suspected concussion, legislative counsel's digest of the bill states that "the bill would prohibit the return of the athlete to that activity until he or she is evaluated by, and receives written clearance (italics added) from a licensed health care provider ..." This bill, supported by well meaning but naieve medical organizations, lends itself to being circumvented by players eager to return to the game and by coaches and team managers who want their stars on the field and not on the bench. Waiting for "written clearance" may be felt by some to take too long because players won't be able to get "written clearance" soon enough. Allowing players to return without "written clearance," even when clearly safe to do so, will be a violation of the law subject to criminal penalties.

The law does not specify that neurological specialists must be involved. A designated "licensed health care provider" may ask for clearance by a neurologicacal specialist, but that step isn't mandated in the new law. Eager players and coaches may be tempted to find ways around this legislation. Even so, if a concussion has occurred, the new law as written should be protective of injured players and should work if all games are attended by "a licensed health provider" who has back-up from neurological specialists. But this last step is not mandated in the new law. Furthermore, even if it were, safety in clearing the player to reurn, given current medical and legal standards, might very well require a player to miss a game or two while he or she goes for a brain scan or other neurological testing. We will soon enough find out which schools want to take a chance and return players too soon based on diagnoses other than concussion, for instance, neck contusions for which players can be returned to the field without written authorization. Sooner or later a mistake in judgment will result in violation of the law and criminal prosecution. That's when doctors will think that ordinary civil litigation known as malpractice will be a cakewalk by comparison. If they have followed the law as written, our expectation is that criminal liability should be avoidable but that increased civil litigation is likely.

Push will come to shove when schools and coaches look for ways to avoid pulling athletes out of action because of possible concussion injury because they know once they do they may not be able to get them certified in time for the next game. The spectre of "unanticipated consequences" may open the door to criminal liability.