Safety and Risk Management : Borkowski Articles

Risk Management and Rugby Football
a series of articles by Dr. Dick Borkowski

The Duty to Warn and Inform
by Dick Borkowski, Ed. D., C.A.A.

In 1982, a catastrophically injured Seattle football player was awarded 6.3 million dollars on the theory he was not warned about lowering his head in a 1975 game. This, now famous, Chris Thompson case shook the athletic world.

Since then, the duty to warn has remained a significant and often misunderstood duty for many coaches.

"You're kidding!" a coach shouted during a workshop. "You mean I can get sued if I didn't tell my prop he could be injured? Where do I turn in my resignation?" Some coaches remain defensive and feel it is unnecessary because "everyone knows you can get hurt in athletics." Others, incorrectly, feel if you describe the potential injuries associated with physical activity, it will "stop players from coming out!" In 40 years of coaching and athletic administration, I have yet to see a player be told about the issue of injuries and decide not to play.

Informing people, about the potential risks of participation, lowers the chance of injuries. That is the main reason for warning those in your charge. It demonstrates your credibility. It shows you care. It is your responsibility.

The informed consent form is a major tool in meeting your duty to warn your players about the potential of injury. Handing out an "informed consent" or "waiver" form to your players is not the answer to meeting your duty to warn and inform. It is only the beginning.

Consider the following:

You are not only meeting what society has deemed a legal duty of coaching, but you are meeting an important coaching duty.

"The duty to warn participants of the calculated risks of participation has been a well established duty." (See Dougherty, Neil, (ed.), Principles of Safety in Physical Education and Sport, AAHPERD, Washington, D.C., 1987, Chapter 2, "Legal Responsibility for Safety in Physical Education and Sport
For example, by emphasizing to keep your head up during a tackle, you are not only lowering the chance of injury you are teaching better tackling.
Informed consent slips should be signed by participants. In most states parents are also required to sign forms for children under 18. The informed consent form is more informative and has less chance of being repudiated than waiver forms. Ask your legal counsel to develop and/or review this form.
The form should not be buried somewhere in the middle of a manual. Attempt to make the distribution, reading and signing of this form a significant event. A fellow coach bragged to me that he was already aware of his duty to warn and inform his players. "During equipment handout time," he said, "I place the forms on the floor at the end of the equipment line. They put them on my desk after signing them! " This does not place the appropriate importance to this process.
The information should be clear. Its objective is to give the player knowledge, understanding and appreciation about the values and potential problems of participation.
It should inform the player he/she is volunteering to participate. The form should remind the player that he/she also has a responsibility for his or her own safety.
Print in larger letters key words, such as "Warning," "Attention," "Please Read Carefully," and "If you have any questions." The heading on the form should be descriptive and in large print.
Place the most meaningful phrase close to the place for signatures and the date. This is the notification that the player will not hold the school responsible and that the signers assume full responsibility for their actions.
The signing must be of free will. It cannot be coerced. This is an agreement to participate. The form should aim to protect all those that are part of the program, such as the coach and administrators.
Ask the signers if they have any questions about the form and if they understand what they are signing. Give a copy to the participant. Keep the original. Check the form. A southern university required each participant to complete an informed consent form. Their procedure was to give the captain the forms to be signed. During the process of a lawsuit following a shoulder injury, it was found that neither the injured party nor any one else signed the consent forms. The captain signed them all!

Each Informed Consent form should include:

1. All key words, such as "warning" and "please read" are accentuated.
* That safety is a shared responsibility.
2. The specific values and potential injuries of participation.
3. The signer and/or parent are given the opportunity to ask questions.
4. The signer is asked if he understands, knows and appreciates the risks of participation. For example, a sentence such as "I recognize that (the activity) can be a hazardous activity" should be included.
5. The participation is voluntary.
6. The signer understands the requirements of the activity. This would include the need to be properly conditioned, to check equipment and report all injuries.
7. The signer will hold the school and coaches harmless.

Remember:

* Review the forms. Has everyone completed the process?

Use every teachable moment to reinforce safety procedures and correct any improper techniques.
Plan to review the risks and how to avoid unnecessary risks at regular intervals.
Ask counsel how long you should keep these forms on files.

The obligation to warn and inform should be presented as part of the normal teaching procedure, not something special and/or separate. It is a continuous process. Meeting this duty will lower the chance of a lawsuit. It will also lower the chance of injury to those in your charge. That’s another "win-win" situation.

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