David Kracke Discusses Max’s Law

Posted On July 22, 2014 IN Uncategorized


“The most important person in a civil lawsuit is the reasonable person. Every fact, all the evidence, every decision made is filtered through the eyes of the reasonable person, and it is usually what the reasonable person would do that is the standard by which all other decisions and issues presented in the case are measured.

It is a good standard. It assumes that we expect others, and ourselves, to conform to certain standards that, when objectively measured, essentially ask that we all observe the golden rule and treat others as we hope they will treat us.

In this respect, a lawsuit decides if, and to what degree, a person’s actions deviated from the standard reasonableness. It is the way we redress actions that have already happened, and while a result against an unreasonable person will usually cause that unreasonable person to modify their future behavior, the net effect on our society, in general, is usually limited in scope.

So what tools do we have to prevent the unreasonable action before it happens? As I’ve written before, one of the primary tools is the implementation of new legislation. We have the opportunity to add a tenet to the code governing our collective actions with the hope that when that tenet is incorporated into our society’s complex fabric, we will all be less prone to act unreasonably, and less prone to cause damage as a result.

We took a legislative step forward with Max’s Law, but the law is not a monolith that can afford to rest on its laurels.

Max’s Law has resulted in positive change; more important in our national discussion on concussion impacts than arguably any other law in our country (sharing that distinction with Zach’s Law in Washington, our neighbor’s legislative push contemporaneous with Max’s Law). But that is no reason to stop advancing, proactively, toward the goal of reducing the incidence of both concussions, and most importantly, second impact syndrome.

Max’s Law requires all high school athletic coaches to receive annual concussion symptom recognition training. It also requires all concussed players to receive clearance from a qualified medical professional before that player can again join the teammates on the playing field. The law protects high school athletes, but that protection is not enough. There are other vulnerable athletes not covered by the requirements of Max’s Law.

High school athletes are generally between the ages of fourteen and eighteen, and we all know that before almost all high school athletes ever play high school sports, they have played organized sports for years through the youth league ranks. Max’s Law does not cover youth athletic coaches below the high school level, nor does it cover the coaches of non- high school recreational league coaches for high school aged athletes who play on organized sports teams outside of the high school arena.

The problem, however, is that a concussion knows no bounds with regard to age or athletic league. When it comes to inflicting its devastating injury, concussions afflict the very young as much, and arguably even more, than they afflict high school aged athletes. Concussions occur in recreational league settings, youth
league settings and city league settings as often as they occur in high school league settings. Doctors I know report an increasing incidence of second impact syndrome among our youngest athletes, illustrating with unfortunate force where our next efforts should be focused.

We need to do more to protect our most vulnerable young athletes against concussions, and we need to do more to educate those coaches who are there nurturing these nascent athletes as they begin their athletic endeavors.

Does it matter that the coaches we need to educate about concussions and second impact syndrome are more than likely a player’s mom or dad who may or may not have any formal coaching training? Does it matter that some uninformed, un-thinking critic will cry nanny state? Does it matter that the concussion education will require the coach to take a free, on-line course and test, about a half-hour’s worth of education?

The answer to all three questions is a resounding “No!”

Our youngest players deserve to have educated coaches just like their high school counterparts. Max’s Law deserves to evolve into Max’s Law II where we say it works at the high school level; let’s make it work for all our young athletes.

This session our legislators will consider this question, and if all goes well, they’ll decide that the reasonable action is to protect all our young athletes now that Max’s Law has given us a blueprint for doing just that.”