“Concussion Laws” Do Affect ED Legal Risks

The “concussion laws” passed by 39 states establish an expectation for emergency physicians (EPs) involved in the case of a student athlete who has potentially suffered a concussion to have “a very low threshold” for making the diagnosis of concussion and removing the child from any potential for further injury, says Roger J. Lewis, MD, PhD, a professor in the Department of Emergency Medicine at Harbor — UCLA Medical Center in Torrance. (For more information on laws of specific states, go to: http://bit.ly/QdmHOc.)

“It’s important that EPs are very clear in their documentation, and in their communication with parents, that a concussion is a clinical diagnosis and the symptoms can be very subtle,” says Lewis.

Concussion laws should make ED providers more attentive to kids they see with concussion, says Douglas S. Diekema, MD, MPH, an attending physician at Seattle (WA) Children’s Hospital. “Our attitude should not be that it is ‘just a concussion,’” he says. “Ten years ago, we really didn’t fully appreciate the importance of cognitive rest for young athletes with concussive symptoms.”

It’s now the EP’s job to make sure that parents and kids understand that they should not only refrain from athletic effort, but also from activities requiring increased cognitive exertion, says Diekema.

Many states with concussion laws require that an athlete be cleared by a health care professional before returning to organized sports, adds Diekema. “Parents should be told about these requirements, and ideally, provided with a referral to trained specialists that provide these follow-up exams,” he says.

Adequately Warn Parents

Diekema says that the two biggest liability risks he sees for ED physicians lie in failing to warn parents that premature return to activity may have lasting negative effects on their child’s brain, and failing to notify them of any state laws requiring medical clearance before return to play.

“Return to play guidelines have become standard practice,” he notes. “So even in states without these laws, parents and older children should be told that they should not return to any athletic activity until their symptoms have completely resolved and they have been seen by a trained health care provider in follow-up.”

EPs should be very clear with parents that their child still could have suffered a concussion even if the child doesn’t exhibit symptoms during the ED visit, stresses Lewis. “The definition of concussion is a transient alteration in level of consciousness after impact. Most of the time, the child will have a normal exam at the time of evaluation,” he says. Common symptoms include headache and difficulties with concentration, sleep, and emotional lability, says Lewis.

EPs face legal risks if they fail to communicate that the child must be absolutely symptom-free without medication prior to beginning a stepwise return to play process, Lewis warns. “Symptoms of a concussion are so subtle that they can’t be detected just by talking to a child, he says. “You cannot rule out a concussion just based on a physical exam.”

Concussion laws make it even more important that parents and older children be provided with information about the dangers of concussion, the dangers of not allowing for a complete recovery, instructions to avoid both physical and cognitive exertion until symptoms have resolved, and return to play guidelines, says Diekema.

Diekema says that he treats all kids like athletes, even those who suffered their concussion during unstructured play. “I tell parents that they should not allow their child to do those things that might risk a second head injury until the child’s symptoms have completely resolved,” he says. “This might include climbing trees, riding bikes and skateboards, and rough-housing.”

In order to identify that a patient has suffered a concussion, EPs need knowledge of the potentially subtle symptoms of concussion, and familiarity with the various clinical tools for testing for concussive symptoms like the Sport Concussion Assessment Tool 2 (SCAT2), Diekema says. (The tool can be viewed at http://bit.ly/PGVUYB.)

“There is a pervasive but incorrect belief among laypeople and among some physicians that a negative CT scan is useful in the assessment of concussion, or in contrast, that imaging is necessary for children with symptoms of concussions,” adds Lewis.

Should EP Clear for RTP?

Lewis notes that some state concussion laws specifically state that an athlete suspected of sustaining a concussion shall not be permitted to return to the activity until he or she is evaluated by a licensed health care provider trained in the management of concussions, and acting within the scope of his or her practice.

Lewis says that this means that EPs should not clear children to return to play unless they believe they have personally received adequate training, are aware of the current recommendations for return to play guidelines, and can document that they’ve instructed the parent to ensure that those guidelines are followed. (To view the Centers for Disease Control and Prevention (CDC) guidelines, go to http://1.usa.gov/PgtcLP. The International Concussion Consensus Guidelines can be viewed at http://bit.ly/eUMiJ6. Also see related story, p. 117, on whether an EP should give written clearance to return to play.)

The purpose of the ED visit is to rule out serious intracranial injury, not to make a decision about return to play, which is a multistep process, emphasizes Lewis. Decisions regarding starting a standard return to play protocol should be made “only after a period of recovery, so symptoms can clarify themselves,” he says. “Since the normal recovery time is one to four weeks, the decision regarding return to play is certainly not an emergency.”

If an EP is satisfied that there is no serious intracranial injury using standard guidelines, the EP should generally not be recommending that children return to play until they are re-evaluated by a physician with expertise in this area, says Lewis.

The standards for assessing and managing concussions have evolved very quickly, adds Lewis, and a relatively small number of EPs were taught the current guidelines during their residency training. “So it behooves EPs to take some time to read the CDC guidelines and make sure these are incorporated in their practice and written instructions they provide,” says Lewis.

“If the child suffered an injury, it is not OK for the EP to say, for example, ‘As soon as your headache goes away, you can go back to play.’” says Lewis. “Such a recommendation would put the EP at substantial risk.”