Grey and Marchant, ‘Biomarkers, Concussions and the Duty of Care’

Abstract:
The United States is currently facing a ‘concussion epidemic’. Concussions, also known as mild traumatic brain injuries, have increased in numerous settings, including transportation accidents, military combat, workplace injuries, domestic abuse, falls, and sports. The epidemic imposes huge costs on society. At the same time, our understanding of the injury remains limited. Currently, no proven way exists to physiologically detect concussion risk or damage. Determining whether a concussion has occurred and been resolved remains largely a clinical diagnosis, relying mostly on self-reported symptoms. Our knowledge of long term implications of repetitive concussions is also limited. Science is racing to develop objective measures, or biomarkers, of concussive injury that will tell us who is more likely than not to be susceptible to harm and the extent of harm they may have already suffered. The availability of biomarkers will lead to a deeper understanding of changes to the brain that occur in a concussion and enable us to trace back earlier into what we think of as a diseased state.

These scientific developments will have enormous implications for questions of risk and loss distribution in society. In particular, they portend a major reexamination of fundamental tort issues of duty, breach, causation, and fault allocation. Applying the developing research to the legal landscape will shed light on duties, as well as causal issues, and may help substantiate latent injury claims. This article examines those questions in the context of youth sports. The development of biomarkers will modify responsibilities for mitigating risks, screening and monitoring players, and the ability of the player to assume risks, as well as implicate privacy interests. In general, the development of these biomarkers will shift responsibilities in the diagnosis and management of concussions, as well as long term injuries, to those most directly involved in the player’s participation.

Grey, Betsy and Marchant, Gary E, Biomarkers, Concussions and the Duty of Care (October 13, 2015). Michigan State Law Review, forthcoming.

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