Abstract:
We have all heard the tragedy of the young star athlete who dies on the field from an unknown or undiagnosed heart condition. In many cases this reflects a lack of understanding, or reluctance to admit, that many of these deaths are the product of Commotio Cordis, an often lethal disruption of heart rhythm that occurs as a blow to the area directly over the heart, leading to cardiac arrest1 . Even where this was understood, efforts to protect individual athletes with uniform modifications have met little success. Recent technological advances in athletic safety equipment and apparel appear able to eliminate or significantly reduce the Commotio Cordis risk. Regulatory bodies and sports teams that do not adopt and promote these new technologies face significant liability risk they may not even be aware of.
What is Commotio Cordis?
Commotio Cordis is Latin for “Agitation of the Heart.” As noted above, Commotio Cordis is an often lethal disruption of heart rhythm that occurs as a blow to the area directly over the heart, leading to cardiac arrest.
Sports that involve anticipated or intended blows to the chest area, even slight blows, should anticipate and minimize risk of Commotio Cordis. The mortality risk for lacrosse players as a result of Commotio Cordis (.63 deaths per 100,000 person-years) was significantly greater than any other sport except hockey (.53 deaths per 100,000 person-years) and baseball (.24 deaths per 100,000 person-years), even though those sports also employ hard and solid projectiles (e.g. pucks and baseballs)2. It is the single most common cause of traumatic death in youth baseball3. It occurs mostly in boys, with an average age of 15, and only 1 in 5 survive.
The blow that causes Commotio Cordis need not be particularly robust, rather it is a matter of timing. The athlete is vulnerable during the ascending phase of the “T wave” part of heart rhythm, which is roughly 1%-3% of the time. This small window of vulnerability may have contributed to historical lack of understanding as to why an otherwise healthy and able 15 year old boy might have died from cardiac arrest while performing an activity that he had previously been able to perform many times, when, in fact, every child performing that activity was taking a small but mortal risk4. In many cases (and for many reasons) these cardiac deaths may have been misattributed to an unknown or undiagnosed heart condition and, therefore, the actual rate of death from Commotio Cordis may be higher than we are presently aware.
What is the Liability to Athletic Regulatory Agencies?
One of the main functions of athletic regulatory agencies is to protect the athletes in the regulated sport from injury, indeed to undertake research into the risks to athletes and to maintain continuing efforts to make the sport safer. Having undertaken these functions (and funds from the regulated sport) these athletic regulatory agencies have undertaken a legal duty in much the same way that a lifeguard undertakes a legal duty that others at the beach have not.
The duty is not to be perfect, but rather to act, and take reasonable precautions, for the protection of those it has undertaken the duty to, the athletes. It does not matter if those actions and precautions fail to protect any individual athlete, so long as reasonable actions and precautions were taken. Reasonable is a term of art, and it means reasonable in light of the circumstances. A failure to take reasonable actions or precautions that causes harm is negligence. In order to fully understand the rest of this paper, a short primer on the negligence follows.
What is Negligence?
Violation of Law
Perhaps the easiest example of negligent behavior is a violation of the law. A violation of a specific law that is designed to protect a specific class of people from a specific type of harm, which results in that specific harm to one or more members of the protected class is called negligence per se. If you are speeding, you are violating the law. If, while speeding, you get into an automobile accident, the fact that you were speeding means that the accident was caused by your negligence and you are liable to the owner and occupants of the other car.
Following the Law in an Unreasonable Way
While breaking the law is negligence per se, simply staying within it is not an automatic shield from a lawsuit claiming negligence. For example, if the posted speed limit is 55, it may very well be unreasonable to drive that fast if the road is covered in wet ice. In this case, while not illegal, driving 55 miles per hour was, nonetheless, unreasonable, and therefore negligent. If a child walks into the street and you skid into him, it would be no defense that you were obeying the speed limit.
Violation of Industry Customs or Observing Industry Customs in an Unreasonable Way
Industry customs are viewed by negligence law in much the same way as the Law and violations of the Law. While violating an industry custom would be negligent, the mere fact that industry customs were observed is no shield against a claim of negligence where the activity was unreasonable under the circumstances.
Unreasonable Failure to Act When Under a Duty
Negligence can be an unreasonable action, such as in the above examples where the driver was speeding or driving at legal, but nonetheless unreasonable speed. Negligence can also be an unreasonable failure to act. In most situations, there is no affirmative duty to act. People have a responsibility to avoid doing things that might cause harm to others, but they usually do not have a duty to jump in and prevent harm when it is occurring. Because of this, failure to act negligence is unfamiliar terrain for most people.
Failure to act negligence usually arises out of someone assuming a duty to act that they do not otherwise have. As noted, supra, the lifeguard has a duty to act when seeing a drowning swimmer that the other beachgoers do not have. But even the lifeguard’s duty to act is not absolute, for example, in the case where there is one lifeguard and multiple drowning swimmers and all cannot be saved, or the case where the lifeguard, although attentive, simply fails to notice a drowning swimmer until it is too late. So long as the lifeguard acted reasonably and non-negligently given the circumstances he or she was faced with he or she cannot be held liable in negligence.
Reasonable Under the Circumstances
It should come as no surprise that the reasonableness of any particular action or failure to act can only be judged in light of the surrounding circumstances. I included several examples above where the circumstances change normally non-negligent behavior (obeying the speed limit) into negligent behavior (when the road is iced up), as well as where circumstances change negligent behavior (a lifeguard’s failure to prevent a drowning) into non-negligent behavior (there are too many swimmers to save them all in the time he has to do so).
Effect of Technological Change on Duty of Care
As we have noted, what may be reasonable under one set of circumstances may not be under another, and vice versa. Technological changes, particularly safety related technological changes, do indeed change the circumstances “backdrop” against which the reasonableness of an actors conduct is judged.
It has become standard for office buildings to have one or more AED automatic defibrillators, and clearly today the failure to have even one of these would be negligent. In many jurisdictions building codes mandate installation of AEDs and the brokerage industry may require AEDs as part of qualifying a building as a class “A” office building.
There was, however, a period not so long ago where, in spite of the fact that AEDs were readily available, no industry custom or regulatory authority mandated installation of AED’s. It is important to note here that the fact that AEDs were not required by regulation or custom is not the same thing as a custom or regulation prohibiting them.
How and why did the installation of AEDs in office buildings become customary, even mandatory under building codes? Did the industry suddenly decide to burden itself with more costs? I think not. I suggest that the industry, in one way or another, came to realize that it was unreasonable not to have one or more of these devices in office buildings which are commonly full of middle aged people with sedentary lifestyles.
Was the entire office building management industry negligent the instant AEDs became available? Of course not. But the office building management industry did have a duty to keep up on the latest technologies, investigate or study them, and adopt those which were reasonable. Perhaps a year or so after these new devices had been advertised, promoted at trade shows, and the like, the industry could fairly be charged with knowledge of the technology and fairly be charged with negligence for failure to have AEDs in their buildings.
This is one of the wonderful things about the law of negligence: it makes us look forward and seek out new ways to protect one another and does not allow us to stay static with what worked in the past. As Judge Learned Hand noted in the case of The T.J. Hooper,
Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission5.
What does this have to do with Commotio Cordis?
As noted above, early efforts to protect athletes from Commotio Cordis using chest shields, and the like, did not produce a significant reduction in Commotio Cordis cases. Because of this reduction efforts have focused on coaching athletes, for example, to turn their bodies in ways to minimize impact to the vulnerable area of the thorax.
Industry efforts to produce effective protection against Commotio Cordis have been ongoing. New chest protector designs incorporating novel new materials have been developed and tested.
A recent Tufts University peer-reviewed study of these new chest protector designs concluded, “Chest protector designs incorporating these novel materials will likely be effective in the prevention of commotio cordis on the playing field.”6
At least one manufacturer submitted their chest protector design for FDA review, with the FDA concluding, “When incorporated into a suitable garment and worn in accordance to instruction, the HART CC (commotio cordis) Pad device has been shown to reduce the mechanical impact received by the chest that may facilitate the reduction in risk of commotio cordis.”7
Athletic Regulatory Agency Liability
These new chest protector technologies represent a change in circumstances, which, in turn, represents a change in what it reasonable behavior and what is negligent behavior. Past chest protector designs did not reduce Commotio Cordis risk and therefore it was reasonable to not bother using them for that purpose.
There are presently several chest protector designs that incorporate new technologies that do, in fact, reduce Commotio Cordis risk. These technologies have been announced in industry journals, as have the clinical and governmental studies supporting the efficacy of these new technologies. The National Federation of High Schools has mandated the use of Commotio Cordis Protection in baseball, starting January 1, 2020.
Simply put, the time for Athletic Regulatory Agencies, Sports Teams, and even Coaches to ignore the new technology in chest protectors as a method of minimizing a known lethal risk to child athletes has passed. It is negligence to ignore these new technologies, in much the same way it would ne negligent to ignore the availability of Kevlar football helmets and continue to issue leather ones.
The spring and summer sporting seasons are just around the corner. Millions, perhaps tens of millions, of American children will be playing sports, including sports with a relatively high risk of Commotio Cordis. Athletic Regulatory Agencies, teams, and coaches who fail to at least warn children and parents of this risk, and the availability of products to minimize it, may find themselves liable in much the same way as the office building management will be found liable to the family of an executive who dies because there were no defibrillators in the building.
Regrettably, preventable Commotio Cordis deaths will likely continue. Awareness of that these weren’t just kids with “undiagnosed heart conditions” will lead to outrage, and outrage will lead to litigation. The Plaintiff’s bar will rake in millions until the costs of ignoring this preventable and lethal risk overcome the ignorance that has subjected children to it. I pray that time comes sooner, rather than later.
1https://en.wikipedia.org/wiki/Commotio_cordis
2http://www.momsteam.com/sports/risk-sudden-cardiac-death-from-ill-timed-blow-chest-commotio-cordis-highest-in-lacrosse-hockey
3Abrunzo, TJ, 1991, Commotio cordis. The single, most common cause of traumatic death in youth baseball American Journal of Diseases of Children, 1991 Nov 145(11):1279-82
4See, e.g. Canelas, N., 2015, An unsolved crisis: Heart-related deaths in high school athletes still a mystery, Sportswire.com, 10/22/15.
5The T.J. Hooper, 60 F.2d 737, 740 (1932)
6Kumar, K. 2017, Development of a Chest Wall Protector Effective in Preventing Sudden Cardiac Death by Chest Wall Impact (Commotio Cordis), Clinical Journal of Sports Medicine, Jan;27(1):26-30
7https://www.prnewswire.com/news-releases/fda-issues-claim-for-unequal-hart-device-300537522.html
