Suit Over Football Concussion Death Revived

     (CN) — The parents of a teenage football player who died after a hard hit on the field can sue the boy’s school for negligence, a Washington appeals court ruled.
     Idaho resident Andrew “Drew” Swank, 17, played football for Valley Christian School (VCS) in Spokane Valley, Wash.
     Swank suffered a concussion in a game on Sept. 18, 2009, and was cleared to return to play one week later by Idaho physician Dr. Timothy Burns.
     During the next game, Swank appeared dazed and sluggish, according to court documents, and collapsed after being hit by a player on the opposing team. He died two days later.
     Swank’s parents, Donald and Patricia Swank, filed a wrongful death lawsuit against VCS, Burns and head football coach Jim Puryear in September 2012.
     The Spokane County Superior Court dismissed claims against all defendants on summary judgment.
     On Tuesday, a three-judge panel of the Washington Court of Appeals revived the Swanks’ claim against the school and affirmed the dismissal of the other defendants.
     Judge Robert Lawrence-Berrey, writing for the unanimous panel, said the school’s possible violation of the Zackery Lystedt law “does not create an implied cause of action,” but can show negligence.
     Washington passed the Zackery Lystedt law in 2009 to reduce the risk of injury or death to youth athletes who suffer concussions. Lystedt was a 13-year-old football player who suffered a traumatic brain injury when he was allowed to return to a game 15 minutes after suffering a concussion.
     The law requires medical clearance of youth athletes suspected of sustaining a concussion and requires educating coaches, youth athletes and parents about the nature and risk of concussions, including the dangers of returning to practice or competition after a concussion or head injury.
     VCS argued it relied on Burn’s recommendation that Swank was fit to play and it should not be held liable.
     The appeals panel found that the Zackery Lystedt law “does not permit VCS to ignore observable signs that Drew continued to suffer from the concussion he earlier sustained and ignore its own [concussion information sheet, or CIS] that required VCS to remove Drew from play.
     “According to Drew’s family and a teammate, Drew’s performance in the Washtucna game was atypical: he was slow, uncoordinated, and missed plays he did not normally miss. These characteristics are those the CIS lists as observable characteristics of an athlete who is exhibiting signs of a concussion,” Lawrence-Berrey wrote. “Further, there is evidence that VCS, through Mr. Puryear, had knowledge of Drew’s concussion-related deficits. Mr. Puryear called Drew over to the sidelines multiple times to yell at him and once even grabbed Drew by his face mask and shook it violently.”
     The judge added, “With all this knowledge, together with the duty of ordinary care buttressed with proper training, there is a genuine issue of material fact whether, and at what point, Mr. Puryear should have removed Drew from the Washtucna game. The trial court erred in granting summary judgment dismissal for VCS.”
     The panel found Washington lacks jurisdiction over Burns, and Puryear is shielded by the nonprofit volunteer immunity statute. The appeals court therefore affirmed their dismissals from the case.
     The Swanks’ case against VCS will now return to superior court for further hearings.
     William Schroeder, one of the attorneys representing the school, told the Spokesman-Review on Tuesday that Swank’s death was a tragedy.
     “The school’s concern was that it was following the new law correctly,” Schroeder said.

%d bloggers like this: