Duty of Care

I have a question and am not sure if this is the correct forum.  My son is on an athletic scholarship for soccer at a college in Deleware.  A month ago he came home very sick.  He had lost 26 pounds, and as he was only 169 pounds, it was a significant weight loss.  He was fatigued and lathargic.  I took him to the doctor and she sent him to the emergency room with a diagnosis of type I diabetes.  His sugar was over over 800 and he came close to falling into a diabetic coma.  Prior to his diagnosis, he continued to attend every practice and game, but his performance had dropped - because of his illness.  One week after his diagnosis, he coach had an end of season meeting with him.  He told him that he would be "disappointed" if he returned next year.  Instead of being empathetic about his illness, he told him that his performance was not at the same level as the other players in his conference.  Neither the coach, the assistant coaches or the personal trainers noticed his weight loss and although his coach noticed his performance drop, he did not intercede to see if he was physically able to play soccer - he looked emaciated when he came home.  How could they have not noticed that?  I exchanged correspondence with the coach and with the president of the college.  About three days later, the coach decided to retire.  My son no longer feels comfortable at that college and plans to transfer after this semester.  He will lose his athletic and academic scholarships, as well as the two years of eligibility the school has taken from him - you cannot get that back.  I did some research on "Duty of Care"  see below.  I want to know if I should pursue this.  Do I have a case?  I am so upset with their lack of responsibility, lack of concern and the fact my son could have died on the soccer field.  He was berated by his coach after the diagnosis for asking for a sub during one of their games! 

My research indicates that College Coaches are held a higher level when it pertains to their "duty of care".  The coaching staff, as well as the trainers; hold the responsibility of ensuring that their athletes are healthy enough to play. (See below).  In conclusion, the coaching staff and trainers were negligent in not seeing Alex's significant weight loss and fatigue, as it was apparent through not only his physical appearance, but the coach's admission of his perception of Alex's change in his performance level.   Instead of talking to Alex and inquiring about his health, the coaching staff and trainers chose to ignore the signs and allow him to continue to play.  Additionally, this neglect led to the coaching staff discriminating against Alex by making specific comments in regards to his playing ability with his illness.  (By comparing his performance to foreign players and indicating that foreign players' performance would not be affected by this illness).  Last, Alex suffered physically, emotionally and financially by this egregious display of neglect and discrimination.  Please take the time to read the research below.  

 RESEARCH:

Athletic training is subject to malpractice legal issues. Athletic trainers face malpractice suites by allowing an athlete to play a sport when the athlete is not medically qualified to play. Athletic trainers commit malpractice by failing to identify a condition, or inadequately examining an athlete after an injury

The tragic deaths of Rashidi Wheeler, Eraste Autin, and other studentathletes

as a result of their participation in intercollegiate team activities202

necessitate a reexamination of the accountability of coaches and

universities under traditional elements of negligence. The three factors

enumerated in Kleinknecht v. Gettysburg College203 and the rationale of

similar decisions related to the current conditions surrounding student athletes

on NCAA-affiliated teams support a finding that coaches, as agents

of a university,204 should be held liable when they fail to protect their

players from voluntary participation in team-related activities.107

Additionally, courts consider factors that may diminish the voluntary

aspect of a student-athlete's participation when assessing assumption of

risk claims.108 For instance, a coach's instructions, comments, and

behavior can have a definite effect on a student-athlete's decision to

participate in a particular activity for which the student-athlete assumes the

inherent risks.109 Thus, courts' holdings will hinge on student-athletes'

appreciation of these risks in light of the circumstances influencing their

participation.110

A defense that a student-athlete implicitly assumed the risk of injury

requires a showing that the student-athlete: (1) had some "actual

knowledge" of a risk of injury; (2) "understood and appreciated the risk";103

and (3) "voluntarily accepted the risk."104 Moreover, student-athletes

assume only the inherent risks commonly associated with their sports, not

the extraordinary or unusual risks of harm or injury.105 Consequently,

universities and coaches may be held liable for injuries to their players

when a breach creates risks not inherent to the sport.106 In other words, a

student-athlete on a university's football team assumes only foreseeable

risks as a result of foreseeable injury.205 A heightened duty on coaches to

preserve the health and safety of their student-athletes is also necessitated

by such factors as university recruiters' appealing offers to talented high

school student-athletes, the student-athletes' enduring dedication to

contribute to the success of their college teams, and society's moral and

ethical concerns about preventing the college athlete's experience from

becoming fatal.

Gonzaldk:

I want to know if I should pursue this.  Do I have a case?

No, YOU do not have a case for anything.  Your son is legally an adult and if there is any case at all HE would have to pursue it. You have no standing what so ever in this issue.

Gonzaldk:

Last, Alex suffered physically, emotionally and financially by this egregious display of neglect and discrimination.

Dial down the drama for a second.  First:  you son was properly diagnosed and does not have any long term permanent physical damages.  Without that there is no case.  He cannot sue for what "might have happened" only for what actually did.  Second:  emotional distress is not compensable in a case like this.  It is understood that college is a stressful time.  Third:  if your son cannot play the sport at the level the college needs him to be at safely then the scholarship can be revoked.  He is voluntariy choosing to transfer schools therefore if he suffers financially it is by personal choice.  The school has not asked him to leave.  If he makes that choice the school is not responsible for that.  Last:  the coaches are not solely responsible for your son's health.  He KNEW something was wrong and at anytime could have gone to a physician on his own.  NOTHING required that he wait until it reached a crisis.  With the number of athletes they are responsible for there is a burden on the student to SPEAK UP when something is amiss.  

Your son is free to consult with a personal injury attorney or two and see if there is a case but do not be surprised if he is told there is nothing to pursue.  Without damages there is no basis for a suit.  

Gonzaldk:

My son no longer feels comfortable at that college and plans to transfer after this semester.  He will lose his athletic and academic scholarships, as well as the two years of eligibility the school has taken from him - you cannot get that back. 

I am sorry for your son's situation.  However, his choice to walk away from academic and athletic scholarships appears to be a choice he is making.  Now that he has been diagnosed (and is hopefully receiving appropriate treatment), it could be possible for him to return to play.  If not, then it is pretty common for an athletic scholarship to be pulled.  Yet, why would he walk away from academic scholarships?  If he can get the same from another college, great.  If he cannot, then he may want to reconsider.  While college is not the "real world", it is a great place for students to learn life lessons in addition to "learning how to learn."  He is going to face many situations in his career where he may be "uncomfortable" and will need to make a decision whether to walk away or to work through the discomfort.

I do not see from what you posted how his coaches or trainers failed a duty of care.  It is unfortunate that your son has a medical condition that took so long for diagnosis (Type 1 diabetes is something he was born with).  However, when he started to feel ill, lathargic, and experienced a substantial weight loss, it was really on him to seek medical assistance.  He could have talked with his trainers, could have sought help from the the student health center, or both. 

I am sorry if the coach was insensitive, but he has retired.  He also had no duty to be sensitive.  Coaches (highschool and college) do often care about their players, but they also have to look out for the well-being of the team and the school.  Your son will face a lot of insensitivity throughout his life; it is what it is. 

Gonzaldk:

Additionally, this neglect led to the coaching staff discriminating against Alex by making specific comments in regards to his playing ability with his illness.  (By comparing his performance to foreign players and indicating that foreign players' performance would not be affected by this illness).

This is not discrimination.  The coaches have a duty and responsibility to assess whether your son can safely play collegiate level sports with diabetes.  Insensitive comments about other players abilities are rude but not discrimination.  The coach has a responsibility to ALL the players on the team, the school, alumni, and a host of other sponsors.  To say they neglected him in one breath and then discriminated in another by assessing the risk/benefit of him continuing to play is hypocritical.  If they are talking to him about the issue then they aren't neglecting his health.  

Gonzaldk:

Please take the time to read the research below.  

Unfortunately your research doesn't support your theory either.  The students referred to in the brief citation you posted died.  Your son did not.  They also were injured in the course of their athletic play.  Your son has a condition that has absolutely nothing to do with what sport he is playing.  It is his own body not functioning properly.  Coaches are not medical doctors.  They are trained to recognize sports related injuries and issues but diagnosing a medical condition like insulin dependent diabetes would be way beyond the scope of their training and ability.  The citation you clipped asserts that coaches have a duty with respect to athletic activities, not personal health.  Yet when your son's coach did question his ability to safely continue you cry discrimination.  You cannot have it both ways.

Dial down the drama?  I almost lost my child.  I posted on this forum to ask for advise, not to be humiliated.  My family has already been through enough with the events of the past month.  In the future, perhaps you should consider the recipients feelings and emotions before you reply so hastly with your nasty and insulting comments. 

You are NOT born with Type I diabetes.  Do more research, as I have had to do since being faced with this.  It is not inherited and you are not born with it.  Most doctors believe it is a virus that attacks the pancreas.  And perhaps I left out the fact that his dorm room was infested with mold and he was very ill with chest colds and fever prior to the diagnosis, yet they didn't move them out of their room until two weeks before his diagnosis. 

Gonzaldk:

I almost lost my child.

Dwelling on what "almost" happened or might have serves no purpose other than to create more stress.  Neither does looking for someone to blame.  

Gonzaldk:

In the future, perhaps you should consider the recipients feelings and emotions before you reply so hastly with your nasty and insulting comments.

The law isn't about emotions or feelings.  You asked for legal information.  When it comes to lawsuits the law is about facts, not emotion, not what you feel should have happened.  The comments you received were based on the facts.  You are getting worked up about issues that never happened:  that is not a basis for a lawsuit and neither are your emotions.  If you are this easily insulted by being given the facts you would never withstand the rigors of a lawsuit.  Rest assured the defense will be a lot less kind than the strangers on the internet who offered to help:  for free.

Gonzaldk:

My family has already been through enough with the events of the past month.

If you need emotional support I highly suggest counseling or your family minister.  A lawsuit is not going to give you emotional support and will take a far bigger emotional toll than you realize.  

First, please read the Federal Disability Act - they cannot discriminate against him because he has diabetes.  I already have an advocate from the American Diabetic Society.  Second, review my research.  They did not die from an injury on the field, one case was Sickle Cell (he was born with the gene).  I truly wish people would research before throwing your comments out here.  I am awaiting a response from an actual person that went to law school, not all of your humiliating comments because you're bored and have nothing better to do then beat a person down when they are already there. If I am wrong in my assumption that I have a claim, fine - but I posted for advice - not for people to berate me, especially when you post without even having knowledge on the subject. 

Gonzaldk:

You are NOT born with Type I diabetes.

Actually, it is entirely possible your son was born with the autoimmune issue that caused the diabetes.  From the Mayo Clinic website:

The exact cause of type 1 diabetes is unknown. Scientists do know that in most people with type 1 diabetes, their body's own immune system - which normally fights harmful bacteria and viruses - mistakenly destroys the insulin-producing (islet) cells in the pancreas. Genetics may play a role in this process, and exposure to certain viruses may trigger the disease.

Even if it was viral induced, there is no way to prove it and the coaches had nothing to do with him getting a virus and his own body reacting the way it did.  NO ONE, not even a medical doctor could predict that this would happen.

We get it:  you are upset your son had a medical crisis.  Your son is devastated that he won't be playing collegiate sports and is forfeiting his scholarship.  That does not automatically mean that there is anyone to blame or that a lawsuit is viable.  Sometimes bad things happen.  That is life.  

I work with the courts.  I know exactly how it works.  With that said, I asked for advise - if you are not an attorney  then please find someone else to give your expert opion to.

Gonzaldk:

First, please read the Federal Disability Act - they cannot discriminate against him because he has diabetes.

They didn't discriminate against him.  YOUR son chose to change schools.  The school didn't kick him out and they didn't ask him to leave.  As an athlete on scholarship they have every right to assess his ability to continue to safely play.  If he would endanger himself or teammates they can deny him the ability to play.  That is not discrimination.  

Gonzaldk:

I am awaiting a response from an actual person that went to law school

I posted for advice

If you want legal ADVICE then you need to hire a lawyer as I said in the first time I posted.  The site rules prohibit giving specific legal advice, the volunteers here can only give general information.  Since you have already become argumentative because you weren't told what you wanted to hear it is doubtful that any of the lawyers who volunteer their time will get involved.  

Gonzaldk:

I asked for advise - if you are not an attorney then please find someone else to give your expert opion to

Those who respond here are volunteers.  You don't get to choose who responds nor demand answers from attorneys only.  That isn't how it works.  As I said before the site rules prohibit giving legal advice.  If you want that you need to consult a lawyer in your state.

Gonzaldk:

You are NOT born with Type I diabetes.  Do more research, as I have had to do since being faced with this.  It is not inherited and you are not born with it. 

 I guess the NIH must be wrong then.  From what I've read Type I can be caused by an auto immune disorder that attacks the pancreas and it is believed it can be passed through families.  However, I trust as his mom you've done tons more research than I.

http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001350/

That's really neither here nor there; what your son is faced with is now managing his disease - whatever the cause.

Gonzaldk:

And perhaps I left out the fact that his dorm room was infested with mold and he was very ill with chest colds and fever prior to the diagnosis, yet they didn't move them out of their room until two weeks before his diagnosis. 

If you believe he has suffered any kind of lasting harm for this, then all you can do is speak with an attorney.  However, that doesn't seem to be the heart of the issue.  I encourage you and your son to really give strong consideration before changing schools.  It may be the right thing to do; it may not be.  However, throwing away the academic scholarship could be unwise.  If he has a chance of staying on the team now that he has been diagnosed and can get treated, it would be sad to throw away an athletic scholarship.  That's a personal decision only he can make. 

As for a legal case against the school, I really don't believe you have one.  The only possible legal case you may have is the mold issue; and even that is a little shakey unless it caused him irrepairable damage.  And they did eventually move the kids out of the dorm.

First, His scholarship is in good standing and they cannot pull it because he is a diabetic.  As far as your quick research on Type I Diabetes, I did the same thing for hours on end after the diagnosis - THEY DON'T KNOW! They have assumptions, but do not know.  I am not blaming the school for his condition.  If you know anything about being an athlete, you know that they do not tell the coach if they are sick because that means less playing time.  It is quoted in one of the cases I researched that the courts understand that the athlete cannot be held responsible for not reporting his illness because of the fear of having less playing time.  I am holding the coaching staff and trainers responsible because they saw him everyday and saw his performance decrease, yet never approached him to ask him if something was wrong.  Again, please do not do two minutes of research and post it as if you are a medical doctor, or better yet, an attorney.  For anyone else reading this - please comment if you are either - if not, please find someone else's post to make your uneducated comments.

Again - I am looking for feedback from an attorney, not some Jail House Lawyer who has nothing to do but sit on a site like this and berate people.  You are a "consumer" on this site, find someone else to instill all of your wisdom. 

And I do appreciate reasonable responses like yours.  I am not trying to do a "hot coffee" lawsuit.  There are many circumstances that prevoked my posting on this site.  If the coach wasn't wrong, why did he decide out of the blue to retire?  Why did the Dean of Students call me on a Sunday to appoligize for the coaches behavior?  Why did the athletic director nearly break down in tears when he heard what the coach said to my son?  The decision to stay at the school is entirely his, not mine.  He feels as though he will be treated badly by the assistant coaches and by his teammates if he gets too much playing time because of the situation.  He wants to earn the playing time and not be looked at that way.  This may seem very insignificant to anyone who is not living this life.  He has played soccer since he was four years old.  He is the most devoted athlete I have ever seen and I am not saying that because he is my son.  The news of the diabetes was difficult enough, but then to have the coach turn on him was devasting.  Again,  I have read many cases on "duty of care" and they specifically relate to situations like this.  Additionally, trainers also have the responsibility of ensuring an athelete can play before they go to practice and games.  His body was shutting down on him, yet no one noticed?  I guess you would have had to see what he looked like.  He went from looking like an All American Athlete to looking like a POW in only a four weeks, yet no one noticed?  They noticed his performance level changed, but did nothing.