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Image courtesy of KETV
Image courtesy of KETV

5/14/2015

After a weeklong trial, the jury returned a verdict for the plaintiff in a football-related head injury case. The jury awarded the injured high school football player almost $1M, finding that the school district and the school nurse had acted negligently in allowing the student to continue playing after he complained of a head injury.

The student, Kacey Strough, 18, had “cavernous malformation,” a pre-existing condition of abnormally formed blood vessels in the brain. In October 2012, he was concussed at a football practice. The suit claims the concussion aggravated Mr. Strough’s condition. Even after being examined by the school nurse and complaining of the injury, he was returned to practice and also played for the team. The vessels in his brain began bleeding and Mr. Strough required hospitalization. He still suffers from the injury.

A suit was filed in 2013. It was based on allegations that two fellow players hit Mr. Strough with footballs from approximately six feet away at the team’s practice. That claim against Bedford High School dealt with its response to the alleged bullying. The suit proceeded with an alternate claim: the school was negligent in how it handled Mr. Strough’s complaint of a head injury.

According to the Iowa High School Athletic Association (IHSAA), guidelines are put in place, as is a recommended protocol for coaches to follow when a player is concussed or has a head injury. Thomas Slater, Mr. Strough’s lawyer, said, “The nurse certainly should have been aware of these, should have put him on notice to coaches to take him out of play. The coaches would have followed that if they had known he had been complaining.”

Due to the injury-aggravated bleeding, Mr. Strough had brain surgery in November 2012 to remove a blood clot near his brain stem. He was in a coma for several days. According to documents on file, he is also wheelchair-bound and is likely to remain so, possibly recovering enough to depend on a walker, for the rest of his life. There is hope, however, that he may eventually walk with a cane.

The jury award granted Mr. Strough $140,000 for medical expenses and $850,000 in damages. The district’s lawyer, Gregory Barntsen, stated that an appeal is possible. “I was disappointed with the jury verdict. I believe the evidence presented at trial indicated that Kacey Strough had a spontaneous bleed of his cavernous malformation that was not due to his being hit in the head with the football or by contact during football practice.” The testimony in question comes from doctors, one of whom performed Mr. Strough’s brain surgery, that said it is possible that the bleeds were spontaneous and not caused by the injury.

In some respects this reminds me of Mrs. Palsgraf (lawyers reading this are cringing) and the proximate cause case against Long Island Railroad. Judge Cardozo held that:

“A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger.”

While Mrs. P’s victory was reversed, that case gave us the “Zone of Danger” rule. I believe it was reasonably foreseeable that a head injury could have aggravated Mr. Strough’s condition and that the nurse, coach and school district owed him a duty. Apparently, the jury thought so, too.

If the district appeals, I don’t think they’ll be successful. This case also reminds me of the “Egg Shell Skull” doctrine of tort law, which:

“… makes a defendant liable for the plaintiff’s unforeseeable and uncommon reactions to the defendant’s negligent or intentional tort.  If the defendant commits a tort against the plaintiff without a complete defense, the defendant becomes liable for any injury that is magnified by the plaintiff’s peculiar characteristics.” [Emphasis mine.]

Clearly and despite what the doctors said, I don’t believe it is possible to refute the assertion that the repeated injuries to Mr. Strough could have caused his bleeding based on his pre-existing condition.

Given that the standard of proof in such cases is a preponderance of evidence*, it is likely that the verdict will survive appeal, unless there is a procedural issue that is currently unknown. I wish Mr. Strough and his family all the best.

*Definition:

“The greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended.”

Source:

Jury Awards Injured High School Football Player Nearly $1M

 

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