I. INTRODUCTION ……………………………………………X-1
II. BASIC MEDICAL CONCEPT……………………………..X-1
C. Mechanism of Injury……………………………………..X-4
2. Cavitation …………………………………………………X-6
3. Rotational Acceleration ……………………………..X-6
D. Brain Function……………………………………………..X-7
1. General Anatomy ………………………………………X-7
2. Frontal Lobe ……………………………………………..X-7
3. Temporal Lobe ………………………………………….X-8
4. Parietal Lobe …………………………………………….X-8
5. Occipital Lobe ……………………………………………X-8
E. Diagnosis of Traumatic Brain Injury …………………..X-8
1. Neurologic Examination ……………………………..X-9
2. Imaging Techniques …………………………………..X-9
3. EEG’S and Brain Mapping …………………………….X-10
4. Neuropsychological Testing ………………………..X-10
F. POST-CONCUSSIVE SYNDROME ……………………..X-11
III. NEUROLAW ………………………………………………..X-12
1. Initial Client Interview ……………………………………X-12
2. Investigation ………………………………………………..X-13
3. Evaluation-Establishing Damages ………………………X-14
4. Settlement …………………………………………………..X-14
5. Trial …………………………………………………………..X-16
IV. CONCLUSION ……………………………………………..X-17
Damages in Acquired Brain Injury Claims: A Primer for Attorneys
Traumatic brain injury has often been called the “silent epidemic” because for years many such injuries went undiagnosed and untreated. Complaints of memory loss, personality change, and diminished cognitive abilities by victims of trauma were dismissed as malingering, “litigation neurosis” or simply ignored altogether by both health care and legal professionals. Persons with acquired brain injury were frequently left with disabling injuries that went uncompensated because many Plaintiff’s attorneys did not recognize the existence of a brain injury or the extent to which the injury had affected their client. The situation was further complicated by the fact that many clients denied the existence of any loss of mental function despite obvious evidence to the contrary.
Slowly the true picture of how acquired brain injury can affect an injured person has emerged as more research in the area has been conducted. In recent years “neurolaw” has developed as a recognized area of practice as the need for attorneys with specialized knowledge in the field of brain injury has become apparent. Representation of a client with acquired brain injury is a rewarding and challenging undertaking for even the most experienced attorney. Effective representation of persons with acquired brain injury requires a basic understanding of how such injuries occur, how they are diagnosed and treated by the medical profession, and the effects a brain injury may have on a survivor’s ability to work and interact with others. The effective presentation of damages in cases involving mild traumatic brain injury is particularly challenging. This article will discuss some of the basic concepts in neurolaw and neurolitigation.
II. BASIC MEDICAL CONCEPTS
An acquired brain injury is an injury to the brain caused by trauma, neurotoxins, vascular disorder or anoxia. According to a recent study conducted by the National Institute of Health:
In the United States, an estimated 1.5 to 2 million people incur TBI each year… Each year, approximately 70,000 to 90,000 individuals incur a TBI resulting in a long-term, substantial loss of functioning. The consequences of TBI include a dramatic change in the individuals life-course, profound disruption of the family, enormous loss of income or earnings potential, and large expenses over a lifetime. Additionally, there are approximately 300,000 hospital admissions annually for persons with mild or moderate TBI, and unknown number of traumatic brain injuries are not diagnosed but may result in long-term disability.
Approximately 14,000 traumatic brain injuries occur in North Carolina each year. Approximately 75-100,000 people die each year from brain injuries in the United States and more than 500,000 have injuries severe enough to require hospitalization.
Trauma is the most common cause of brain injury in the United States. Traumatic injuries to the brain are divided into two categories: open head injuries and closed head injuries. The most frequent type of acquired brain injury caused by trauma is the closed head injury. A closed head injury is defined as an injury to the brain without penetration or breech of the skull. Much of the information we know about closed head injuries, how they occur and why they occur is the result of animal studies and studies of human cadavers. In those studies researchers subjected the brains of both human cadavers and living primates to trauma and then studied the physical changes by autopsy and microscopic analysis. The results of those tests confirmed that trauma may cause physical changes to the brain without penetration of or damage to the skull. Neuropsychological testing and recent developments in neuroimaging have added significantly to our understanding of how brain injury can affect human behavior and functioning since the days of those early studies.
A closed head injury occurs when the head is subjected to rapid acceleration/deceleration such as when a car rapidly decelerates after striking an object or rapidly accelerates after being struck by another vehicle. Three different forces act to cause injury to the brain during rapid acceleration/deceleration. Those forces are: a) physical impact with the skull; b) cavitation; and c) rotational acceleration. Each of these forces causes a different type of injury. Injuries to the brain are divided into two types depending on the event that leads to the damage: primary damage and secondary damage. Primary damage is an injury to the brain cells or neurons that make up the brain directly attributable to the force of the trauma. Secondary damage is injury caused by factors other than physical force, such as increased pressure within the skull from bleeding or swelling , the release of large quantities of neurotransmitters, or those which reduce the flow of blood to the brain.
Medical professionals generally classify brain injuries as either mild, moderate or severe. These classifications are often misleading because they are based on an initial assessment of the life threatening nature of the injury to the patient immediately following the trauma and not the long term consequences of the injury. The Glascow Coma Scale (GCS) was developed to enable medical professionals to quantify brain injury in acute trauma patients. The scale is based on a separate assessment of eye, verbal and motor responsiveness. The GCS is scored between 3 and 15, 3 (deep coma) being the worst score, and 15 (normal) the best. It is composed of three parts: Best Eye Response, Best Verbal Response, Best Motor. The initial GCS generally provides a good indicator of long term prognosis, particularly in cases of severe head injury.
A “mild” traumatic brain injury is defined as an injury resulting in unconsciousness of less than 30 minutes or an initial GCS of 13-15. It includes an injury that causes the injured person to become dazed or disoriented but not to totally lose consciousness. It is now widely recognized that an individual may suffer brain injury resulting in long term deficits without a total loss of consciousness. A “moderate” brain injury is one resulting in unconsciousness lasting from 30 minutes to 6 hours or an initial GCS of 9-12. If the initial GCS is less than 9 or the period of unconsciousness is greater than 6 hours the injury is classified as “severe.”
A committee was formed by the American Congress of Rehabilitation Medicine to draft a new definition for mild traumatic brain injury because of varying use of the term in medical literature and practice. The Mild Traumatic Brain Injury Committee of the Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine adopted the following definition of mild brain injury:
A patient with mild traumatic brain injury is a person who has traumatically induced physiological disruption of brain function, as manifested by at least one of the following:
- Any period of loss of consciousness;
- Any loss of memory for events immediately before or after the accident;
- Any alteration in mental state the time of the accident (e.g., feeling dazed, disoriented, or confused); and
- Focal neurologic deficit(s) that may or may not be transient;
but where the severity of the injury does not exceed the following:
* loss of consciousness of approximately 30 minutes or less;
* after 30 minutes, an initial Glascow Coma Scale (GCS) of 13-15; and
* posttraumatic amnesia (PTA) not greater than 24 hours.
It is essential to note that while these general classifications provide some indication of the patient’s ultimate prognosis, they do not reflect the severity of the post concussive symptoms a patient may experience nor do they reflect the extent to which the injury may eventually disable the patient. Patients with “mild” traumatic brain injuries may be so severely debilitated by the injury that they are unable to return to any gainful employment. Conversely, patients with a “moderate” or even “severe” brain injury may recover sufficient mental functioning to return to employment and relatively normal, productive lives. Fortunately, the vast majority of all persons (approximately 85%) who sustain a mild brain injury will recover completely within a few months. There is seldom any disagreement about whether a person has sustained a severe brain injury. It is that small minority of people (“miserable minority”) that do not completely recover from mild or moderate brain injuries that present the real challenge to both health care and legal professionals. Many factors, such as educational level, poor coping skills, occupation, family support, pre-morbid psychological conditions, financial resources and the presence of other disabling injuries contribute to the final outcome.
1 C. Mechanism of Injury
1. Impact with Skull
The consistency of the brain is often compared to that of Jell-O. It sits within the skull surrounded by cerebral spinal fluid which circulates over the brain and spinal cord and cushions the brain from shock. The inside of the skull is not smooth. There are many bony prominences or ridges which the brain rests upon, primarily in the lower half of the skull. These areas cause injury to the brain as the brain moves over them when the head rapidly changes velocity.
Several basic principles of physics explain how the brain is injured when rapidly accelerated or decelerated. One such principle, is Newton’s First Law of Motion, which states that once an object is in motion, it tends to remain in motion at a constant velocity until acted upon by sufficient force in the opposite direction to stop it. When the head stops moving suddenly, such as when it strikes an object within the interior of an automobile, the brain continues to move within the skull at the original velocity of the car until it strikes the inside of the skull. Because of its soft consistency, the impact of the brain against the skull and the bony ridges within the skull, causes bruising and microscopic bleeding within the brain tissue.
If the bleeding is severe, such as rupture of a blood vessel, it may require surgical intervention or evacuation. These injuries are known as mass lesions. The brain is surrounded by the dura, a tough, leathery membrane. A epidural hematoma is a lesion that occurs between the dura and the skull. A subdural hematoma is a lesion between the dura and the brain.
Cavitation is the formation of microscopic bubbles within brain tissue as it is pulled away from the skull when the head suddenly stops or accelerates. Cavitation occurs when an object moves rapidly through a liquid, such as when the brain moves through cerebral spinal fluid. The formation and collapse of these bubbles causes disruption of brain tissue. Cavitation injuries occur on the opposite side of the brain from the point of impact. They are sometimes referred to as contrecoup injuries. Contrecoup injuries also result from impact with the skull as it rebounds from the initial impact.
3. Rotational Acceleration
The brain is composed of billions of nerve cells called neurons. A neuron is a specialized cell which conducts electrochemical impulses. A neuron consists of a cell body and cell extensions called processes. There are two types of processes: long single processes known as axons and short, branching processes known as dendrites. An axon can be up to three feet in length. Some axons are covered by a white fatty substance called myelin. The surface of the cerebral cortex (grey matter) appears gray, because the nerve cell bodies are not covered with myelin. The brain is made of several layers or meninges. In the lower areas of the brain the nerve cells are covered by myelin (white matter). These layers are of varying consistency or viscosity. When the head stops suddenly the brain rotates on the brain stem where the stem exits the skull in a forward and downward motion. The layers of the brain farthest from the brain stem move faster and farther than the layers which are closest. As the brain moves the layers stretch and pull at different rates.
Diffuse axonal injury occurs when the layers of the brain slide over one another causing the axons to be stretched, torn and twisted. This may damage the myelin covering, which in turn affects electrochemical impulse transmission. Nerve impulses are transmitted from one nerve cell to another by electrochemical transmissions across synapses at the end of the axons. If the myelin is sufficiently damaged the nerve impulse is not transmitted to the adjacent neuron. This causes a loss of brain function. It is important to note that when the body of a neuron is sufficiently damaged, the cell will die. Unlike many types of cells within the body, neurons do not regenerate. Brain damage resulting from the destruction of large numbers of neurons is permanent. It is now thought that most of the loss of brain function following acceleration/deceleration trauma is the result of diffuse axonal injury.
In extreme cases of diffuse axonal injury the grey matter is virtually disconnected from the white matter in parts of the brain. This disconnection causes the victim to remain completely unresponsive in what is called a persistent vegetative state (PVS). A victim may remain in such a state for many years without ever regaining consciousness.
D. Brain Function
1. General Anatomy
The brain is divided into two sides or hemispheres. For motor functions, sight and hearing, the left side of the brain controls the right side of the body and the right side of the brain controls the left side of the body (“contralateral”). The two hemispheres of the brain do not function identically. For most right handed persons, the left side of the brain controls language functions and processing of verbal information. Generally, the right side of the brain processes visual and spatial information.
The hemispheres of the brain are further divided into four lobes. They are the frontal lobe, parietal lobe, occipital lobe and temporal lobe. Each of these areas of the brain is responsible for a different function. The effect an injury to the brain will have on an individual depends in large part on where the injury occurs. The two areas most susceptible to injury by the forces involved when the brain is subjected to rapid acceleration/deceleration are the frontal and temporal lobes.
2. Frontal Lobe
The higher cognitive functions of our brains which separate us from other life on the planet and give us our distinctly human qualities are controlled by the frontal lobe. The frontal lobe is responsible for all activities related to goal directed behavior and for cognitive flexibility. These include foresight, judgment, initiation, organization, planning and execution. Patients with frontal lobe injury frequently display an inability to control their emotions characterized by severe mood swings (“emotional lability”). They may also experience a loss of inhibition and difficulty maintaining concentration and attention. Significant injury to the frontal lobe will often result in profound personality changes.
3. Temporal Lobe
The temporal lobe interprets verbal and nonverbal auditory information, and is responsible for our awareness of time. The hippocampus is located within the temporal lobe. The hippocampus plays a major role in the function of memory. Thus, damage to the temporal lobes can severely affect an individual’s ability to remember new information or to recall existing information. Damage in this area may also affect the victim’s ability to discriminate speech sounds and understand what they hear. Difficulty remembering newly learned information is common problem in people who have had traumatic brain injuries. The ability to recall remote information (long term memory) is seldom affected, even in cases of moderate injury.
4. Parietal Lobe
The parietal lobe enables us to comprehend spatial information and differentiate shapes, sizes and textures. Other functions include right/left differentiation, mathematical abilities and the ability to express or comprehend emotion. Injury in this area interferes with reading, math, attention to the contralateral hemispace and results in a flattened affect. The perception and understanding of emotion in others may be compromised in some individuals with injuries in this area.
5. Occipital Lobe
Rotational forces seldom cause injury to the occipital lobe because of its location in the lower rear portion of the skull. Damage to primary visual cortex in the occipital lobe causes blindness while damage to adjacent areas impairs the individual’s ability to understand and interpret visual information.
E. Diagnosis of Traumatic Brain Injury
The diagnosis of traumatic brain injury is not difficult in cases of moderate or severe injury. By definition, a person has sustained a brain injury once loss of consciousness or change in mental status has been established. Diagnosis is more difficult in cases of mild traumatic brain injury. Often the patient is not certain whether they have lost consciousness. Because cognitive impairments or other symptoms of TBI may be masked by medications or other acute injuries, the diagnosis of mild brain injury may not be made for days, weeks or even months following an accident. Cognitive deficits may not become readily apparent until the person returns to work or school and attempts to resume their normal routine. The diagnosis of mild brain injury may be completely missed in many cases. Several diagnostic tools are available to medical clinicians to assist in the diagnosis of brain injury.
1. Neurologic Examination
The basic neurologic examination typically begins with a history and review of symptoms. The physician then evaluates motor strength and tone, balance, reflexes, coordination, gait, sensory and cranial nerve function. The physical examination is followed by a mental status examination which includes an assessment of the patient’s orientation to person, place and time, their mood or affect, together with assessments of gross memory and judgment. It is not unusual and is in fact very common for the standard neurologic examination to be within normal limits in a patient with a mild traumatic brain injury.
2. Imaging Techniques
Plain film x-rays are of little diagnostic value for all but the most severe brain injuries. Large mass lesions, such as epidural or subdural hematomas, are typically visible on MRI or CT scans. Significant diffuse axonal shearing may appear on MRI as scattered white spots. However, it is well recognized in the medical literature, that due to the limitations of current imaging technology, in many instances the microscopic injuries caused by diffuse axonal shearing will not appear on MRI or CT scan. A normal x-ray, MRI or CT scan does not rule out the presence of significant brain injury. Newer functional imaging techniques, such as PET (Positron Emission Tomography) scans, are proving useful in the diagnosis of mild brain injury. A PET scan monitors brain cerebral blood flow to measure the uptake of glucose and oxygen in the brain. Areas of the brain with abnormal blood flow or which show reduced glucose uptake and therefore lower brain activity indicate brain injury. PET has shown that diffuse axonal injury secondary to trauma can result in widespread hypoperfusion in the brain.
Current research indicates that SPECT (single-photon emission computerized tomography) is more sensitive than CT in the detection of abnormalities in patients with a history of TBI. SPECT also relies on the measurement of regional cerebral blood flow. However, the radiographic tracer used for SPECT scans is more readily available and has a longer useful life resulting in a lower cost.
Functional magnetic resonance imaging (fMRI) is a developing technology that is also proving to be a useful diagnostic tool for the diagnosis of mild brain injury. Studies are presently being conducted to determine its selectivity and specificity in the diagnosis of brain injury. Attempts are underway at the present time to compile a comprehensive database of normal brain functioning during various activities through the use of fMRI. Studies of TBI patients can then be compared with the database to determine whether there are any patterns of abnormality in cerebral blood flow following brain injury.
3. EEG’S and Brain Mapping
The electroencephalograph or EEG is used for diagnosis of epileptiform brain wave activity. It is most useful in the acute stages of injury to confirm the presence of seizures in a patient following brain injury. EEG’s are almost always normal in cases of mild traumatic brain injury.
There is an ongoing debate over the reliability and accuracy of quantified electroencephalography (QEEG) within the medical community. QEEG is essentially a computerized version of the EEG. It takes the electrical activity that is recorded in various parts of the brain and digitizes it. The information is then analyzed by a computer program to detect variations in brain wave activity that cannot be seen with visual analysis of polygraph EEG’s. Much of the debate surrounding QEEG’s concerns the database used by the computer programs.
4. Neuropsychological Testing
Neuropsychology is the study of the relationship between the brain, brain function and human behavior. Neuropsychological testing is widely recognized as a useful diagnostic tool for persons suspected of having brain injuries, particularly in cases of mild brain injury. It consists of a series or battery of tests, a thorough review of the patient’s history and symptoms, and a comprehensive clinical evaluation. The individual tests within the battery are designed to assess the functioning of different parts of the brain and thereby lateralize or focalize the area of injury. Neuropsychological testing is the only method available to accurately assess and quantify the cognitive deficits and personality changes that occur after brain injury. Neuropsychological testing can also be used to estimate the premorbid level of intellectual functioning of a person with an acquired brain injury as certain tests given are not sensitive to brain injury.
In order to obtain the most accurate assessment of the injury, testing should be performed at least two times. The optimum time for initially testing a person suspected of having a mild brain injury is immediately after the trauma. In cases of moderate to severe injury, testing should be delayed until after the initial period of confusion ends. A second battery performed after the client has reached maximum medical improvement can be used to assess how well brain function has recovered.
A neuropsychological test battery should include tests to evaluate attention, memory, concentration, reasoning and problem solving, learning, visual perception functions, receptive and expressive language skills, academic skills, speed of information processing, motor and psychomotor function, and mental flexibility. It should also include an evaluation of visual, tactile and auditory sensory function. The most common test battery is the Halstead-Reitan Neuropsychological Test Battery. Neuropsychological testing is also the most accurate method to determine symptom magnification or malingering. Thus, the test battery should include a test designed to assess malingering or symptom magnification. A popular malingering test is the Test of Memory Malingering (TOMM). The entire neuropsychologicaltest battery and evaluation requires approximately 8-10 hours to complete.
F. POST-CONCUSSIVE SYNDROME
The sequelae from a mild traumatic brain injury are often referred to as “post-concussive syndrome.” Post concussive syndrome includes a wide variety of physical, cognitive and emotional symptoms which may follow brain injury. The physical symptoms of brain injury include nausea, vomiting, headache, blurred vision, dizziness and quickness to fatigue. Some persons with brain injuries will develop seizures. Cognitive deficits may include difficulties with concentration, attention, perception, memory and the ability to process information. Many persons with traumatic brain injuries experience disruption of their sleep cycles, causing them to awaken frequently in the night or develop insomnia. Emotional symptoms include extreme mood swings (emotional lability), depression, irritability, quickness to anger and inappropriate affect.
Representation of persons with brain injury presents several unique difficulties for the attorney. Difficult decisions about whether the client should be declared incompetent and a guardian appointed may be necessary. Due to personality changes caused by the injury the client may not be very likeable. They may frequently become angry and abusive to you and your staff. They may become rigid in their approach to a problem and refuse to accept your advice. They may demand that you settle their case immediately or attempt to discharge you as their attorney without cause.
The insurance carrier may deny that the client is really injured or attempt to diminish the effects of the injury on the survivor. In short, there is a myriad of problems that face an attorney representing the brain injury survivor. Because mild traumatic brain injury is the most common type of injury and because such injuries present the greatest challenge to the attorney, the remainder of this article will concentrate on the challenges associated with representing clients with mild traumatic brain injury.
1. Initial Client Interview
It is not unusual for the diagnosis of mild brain injury to be missed in the first few days or weeks following an automobile collision. Three factors in the way medical care is delivered in this country contribute to the failure of medical professionals to diagnose mild brain injury following trauma. First, the patient is rarely accompanied by a spouse, family member or significant other into the examining room. A patient with mild brain injury is a poor historian as to many of their symptoms. They may simply be unaware of changes in attention and memory or of personality changes or mood swings which are readily apparent to those who are most familiar with their behavior. Second, because of specialization, HMOs, change of health insurance carrier, etc., very few patients have a long term relationship with a physician. Thus, the physician does not have an opportunity to make her own comparison of the patient’s cognitive functioning, speech, personality and memory. Third, the physician does not spend enough time with the patient to observe symptoms of post-concussive syndrome. In many cases, the doctor will only spend 5-10 minutes in the presence of the patient. Many people with mild brain injuries will appear completely normal during a casual encounter. It is only after spending a few minutes with them that their deficits become apparent.
Therefore, the plaintiff’s attorney should carefully screen every case for evidence of post concussive syndrome. At the initial interview the attorney should inquire, not only of the client, but also a close friend, family member or significant other, as to whether the client has exhibited any symptoms of brain injury. Find out if client has experienced any of following: loss of consciousness, feeling dazed or confused following the injury, short term memory loss, headache, dizziness, ringing in ears, blurred vision, sleep disturbance, amnesia, speech problems, word finding difficulty, or personality change. If so, further investigation may be warranted.
If you suspect that client may have suffered a brain injury, obtain the following information: accident report, ambulance call report, ER records, records from any hospital admission, records of follow up visits from all physicians who have treated the client since their injury, records from military service, educational records, employment records, and any other information that can be used to establish the client’s pre-morbid level of functioning. Carefully review the medical records, particularly the ambulance call report and the ER notes, to determine whether there are any references to loss of consciousness, confusion, dizziness, signs of trauma to the head, abnormal reflexes, pupil dilation, or abnormal eye movements.
Inspect the client’s vehicle for signs of damage to the interior which may indicate that the client’s head struck the steering wheel, windshield, etc. Check the positioning of the head rest. If not properly positioned, the head rest may act as a ramp and increase the risk of injury to the brain. Interview the client’s friends, co-workers, and family members for changes in behavior, motivation, personality, job performance or memory loss.
3. Evaluation-Establishing Damages
If after reviewing all of the information gathered thus far, it appears that the client may have sustained a brain injury, consider having the client evaluated by a neuropsychologist for a more definitive diagnosis. There are numerous qualified neuropsychologists in the state. If possible, have another treating physician make the referral to a neuropsychologist you have chosen. Because of the cost involved (approximately $1,500-2,000) for a complete neuropsychological test battery, you may chose to have a neuropsychological screening performed at first. The screening is an abbreviated version of the test battery. If the screening suggests the presence of brain injury, the entire battery can be administered. After the examination, request a complete report from the neuropsychologist. The neuropsychological evaluation and report should always include: a) a complete history for the patient; b) general symptoms and complaints as stated by the patient; c) observations made by the examiner during the testing and clinical interview; d) an assessment of the patients cooperation and effort; e) a listing of the tests administered; f) an assessment of the patient’s overall psychological functioning; g) an assessment of the degree to which psychological factors may have affected test performance; h) discussion of whether disorders or factors other than brain injury may account for the dysfunction observed; i) a summary of the test results and the implications of those results in terms of neurologic functioning; j) a prognosis; and k) a summary of how the deficits reported are likely to affect the patients activities of daily living and ability to work. Request that the neuropsychologist make a multi-axial diagnosis as recommended by the DSM-IV.
If the deficits will significantly impact the client’s ability to work or earning capacity a vocational evaluation may also be in order. The vocational evaluation can be used to: a) establish the presence of any disabling conditions; b) identify any functional limitations that will likely result from the conditions identified; c) assess whether the disabling conditions cause functional limitations that will interfere with the clients ability to secure and maintain competitive employment; d) determine whether vocational rehabilitative services can enable the client to work in a competitive situation; and e) estimate the cost of those services and the length of time required to assist the client in entering competitive employment.
Because claims of mild brain injury have become more and more common in recent years, they have come under much closer scrutiny by liability insurance carriers. Most insurers treat claims of mild brain injury with the same level of skepticism that they apply to soft tissue injuries: “If you can’t see it or show it by an objective test, it does not exist.” The attorney must be prepared to establish that the injury in the case in question is real. The settlement brochure should compare and contrast the client’s level of functioning before and after the injury and should include the following:
- Accident report;
- Ambulance call report;
- Initial ER records; All information contained in the ambulance call report or ER records which tends to document any period of unconsciousness should be clearly highlighted;
- Complete copy of all hospital records as well as follow up notes from all physicians who have treated the client for injuries sustained in the accident;
- Reports of any abnormal diagnostic tests such as MRIs, CT scans, EEGs, etc.;
- A summary of the client’s medical treatment;
- The identity of all potential lay witnesses as well as a summary of each witnesses’ testimony about the changes in behavior or functioning they have observed in the client;
- The Curriculum Vitae and a brief summary of the experience of the neuropsychologist or neuropsychiatrist who diagnosed the client’s brain injury. If a vocational assessment has been made, information about the person who performed that assessment should also be included.
- Photographs of any obvious signs of trauma to the head, such as lacerations, bruising or swelling;
- Documentation of any lost earnings or lost earning capacity; and
- A credible settlement demand.
In some cases you may wish to include:
- An analysis of lost future earning capacity and report by an economist setting forth the present value of any such loss in future earning capacity;
- Grade transcripts, and results of standardized tests such as CAT, SAT or IQ testing from any educational institutions attended by the client both prior to and after the injury;
- Military service records;
- Employee records or personnel files;
- Photographs of vehicles involved or accident scene;
- “Day in the Life” film;
- Any other information which can be used to compare and contrast the client’s medical condition, cognitive functioning and performance in life, before and after injury.
Be patient. The carrier will usually submit the claim to some type of medical review before meaningful settlement negotiations can begin. Review may take several weeks or even longer. The adjuster may request that the client submit to an I.M.E. If the client has sustained a mild brain injury, an evaluation by a neurologist will be of little value in determining whether the client sustained a brain injury. Before agreeing to an I.M.E. insist that the examination be conducted by a neuropsychologist or neuropsychiatrist who treats brain injury patients on a regular basis. Evaluate the case realistically, stick to that evaluation and be prepared to try the case if necessary. Unfortunately, due to the difficulty in proving these claims by objective evidence, many mild brain injury cases simply do not settle.
If you have thoroughly prepared for settlement, most of the information needed at trial will already be in your file. The first goal should be to establish that the client’s symptoms are the result of a physical injury to the brain and that they are not “psychological.” Through the use of expert testimony from a biomechanical engineer, a neurologist, neurosurgeon or neuropsychiatrist, establish how the brain is injured on a microscopic level when rapidly accelerated/decelerated. Explain why MRIs, CAT scans, X-rays, EEGs, etc. may be normal. Have the doctor instruct the jury on how the brain works and what the general function of each area of the brain is. Have her tell the jury which areas of the brain are most susceptible to injury and review the functions of those areas. Have the doctor explain how injuries in different parts of the brain will affect behavior and cognitive functions. Use charts, diagrams and models whenever possible.
After you have established the base facts, begin discussing your client. Wherever possible, draw correlations between the obvious external signs of physical injury to the head, the function of that area of the brain, the expected symptom from an injury to that area and the client’s symptoms. Make sure that the jury understands that the client’s symptoms are consistent with injury to a specific part of the brain in the area of the trauma and that injuries to brain tissue are permanent.
It is extremely important to explain to the jury how one part of the brain can be injured and result in significant disability and yet other areas of the brain may function normally. In all likelihood your client will appear perfectly normal. Your greatest challenge will be to make the jurors understand that the functional limitations that result from “mild brain injury” are severe, incurable and deserving of compensation.
The use of lay witnesses to compare and contrast the client before and after injury is essential. Friends, co-workers and family members are all excellent candidates. Make sure that these witnesses have spent significant time with the client both before and after the injury. Several brief witnesses are preferable. The testimony of the witnesses may only last ten minutes or so. The questions to each witness should be essentially the same. After two or three of these witnesses, the jury should understand the day-to-day affect of the head injury on your client and their family. It is often said that brain injury is an injury to the entire family unit and not just the survivor because of the tremendous impact it has on relationships within the family.
Hopefully, as medical science continues to grow and treatment methods for brain injury improve, the “silent epidemic” of brain injury will slowly fade into oblivion. In the meantime, the field of neurolaw will continue to be a challenging endeavor for trial attorneys. People with acquired brain injury need and deserve attorneys who have made the commitment to master this difficult area of medical jurisprudence and who understand their special needs.