Both individual and class litigation involving concussions are on the rise. The NCAA recently settled a class action with student athletes for $75 million that covered the cost of medical evaluations to assess symptoms that may be related to concussion injuries. The NCAA settlement expressly excluded bodily injury damages, such as pain, disability, and lost wages, caused by concussions or sub-concussive hits.

Insurance agents and brokers can play a significant role in helping their clients make sports safer and reduce claims. Schools need to ensure that they are following current concussion safety recommendations, including baseline testing, the availability of athletic trainers and pre-participation concussion education. At the same time, insurers can play a role in athletic safety by imposing certain requirements to provide coverage, such as ensuring the availability of sideline tests for concussions.

Taking a proactive approach

As concussion cases grow, policy exclusions regarding student athletic concussions will likely become more prevalent. For example, at least one large carrier has stated that it will exclude coverage for student athletic concussion claims in which neurodegenerative disease is alleged.

Also, schools and insurers may soon face complex allocation issues, as courts' opinions may vary on how to apportion a loss. The involvement of multiple insurers and insureds complicates these issues, as do claimants contending they have suffered progressive injuries extending across multiple policy periods.

All 50 states and the District of Columbia have enacted laws addressing student athlete concussions. (Photo: Shutterstock)

Waivers and releases — signed agreements aknowledging the danger of brain injuries and, where appropriate, releasing the athlete's right to sue — are a crucial risk management tactic. An informal poll from United Educators, which insures thousands of schools, colleges and universities, found that many institutions overlook these tools for managing the risks of intercollegiate athletic concussions.

Related: 20 sports that cause the most injuries

In many cases, a well-written assumption of risk or release form can highlight the potential dangers of athletic participation and deter lawsuits. Institutions should permanently retain signed releases, waivers, and acknowledgement forms due to potential delays between the initial impact and progressive degenerative conditions.

Schools and universities must also understand the importance of having and implementing a strong concussion management plan. This written policy outlines an institution's protocol for managing the risk of concussions or mild traumatic brain injury.

Each school's plan should address the education of various communities before a concussion occurs, the immediate response to a student's concussion, and the management of the concussion from occurrence through recovery. Elements of these plans may include:

• Pre-season cognitive ability tests to provide a comparative baseline should a student suffer an injury;

• A football helmet program under which helmets can be reconditioned, as needed, each year for five years before being retired; and

• A review of the number of football games and practices played each season to limit the number of hits.

All 50 states and the District of Columbia have enacted laws addressing student athlete concussions. Most of these laws:

• Provide for immediate removal from play when a student-athlete exhibits signs of a concussion;

• Prohibit same-day return to action and permit return to play only after the athlete has been cleared by a licensed medical professional (the definition of which varies among state laws);

• Require coaches to complete an education program; and

• Require schools to provide concussion information to student athletes and their parents.

Follow return-to-play guidelines

Following return-to-play (RTP) guidelines is crucial in making sports safer, as returning to physical activity before medical clearance can put the student at risk for further harm. Every student and every concussion is different, so the RTP process is individualized based on the student's symptoms and medical history. Doctors and certified athletic trainers guide the athlete through a stepwise RTP process, moving the student through each step as symptoms allow.

Related: Who's liable for youth sports injuries? Here are 7 rules to remember

Rhonda Hurwitz ([email protected]) is senior claims counsel for United Educators (UE), a risk retention group that provides liability insurance and comprehensive risk management service to schools, colleges and universities. Joe Vossen is risk management counsel for United Educators (UE). He can be reached at [email protected].