By: Charles G. Monnett III, Esq.
A truck driver has been driving for hours. He struggles to stay awake and alert. As he approaches a traffic light he momentarily dozes off. The light is red. Stopped at the light is an older model SUV with a trailer hitch on the back. The truck driver wakes up and sees the red light. He slams on his brakes. He almost gets stopped in time but makes contact with the rear of the SUV, propelling it into the intersection. Fortunately, no vehicles are approaching from the side street.
The truck driver runs over to the SUV. There is a woman driving. He opens her car door and she gets out. He asks whether she's okay. She looks down and sees she has no broken bones and no lacerations. She tells him she thinks she is OK.
A few minutes later a police officer arrives. He looks at the vehicles. There is a small dent in the truck's bumper where it struck the trailer hitch. There is some minor damage to the back of the SUV. The officer asks the woman driving the SUV whether she wants him to call an ambulance. She says no, she thinks she will be okay. By the time she gets home she has a headache. She notices that her eyes seem sensitive to the bright sunshine. She feels a little nauseated. Her neck hurts.
Her husband decides to drive her to the Emergency Department at the local hospital "just to be on the safe side." The triage nurse takes a history. "Patient involved in MVA several hours prior to arrival. Now complaining of headache and neck pain. No LOC." Later, the emergency physician performs a physical exam. The doctor checks her reflexes. They are normal. In his report he notes: "MVA. Normal neurologic exam. No sign of trauma to head. Patient denies striking head in collision. No LOC. Patient complains of headache and neck pain. Some nausea, no vomiting. Full ROM to neck. She is given a diagnosis of neck strain, a prescription for pain medication, written out of work for two days and discharged.
The woman doesn't feel quite herself. She begins preparing dinner the following night. She puts a pot on the stove. The doorbell rings. It is a neighbor dropping by to visit. When the neighbor leaves she turns on the TV to watch the evening news. A few minutes later one of her children comes running into the room. "Mommy, there's something on fire in the kitchen!" Suddenly, she remembers the pot on the stove. She dismisses the incident as just a momentary lapse. Her family soon notices she seems much more forgetful. They decide it's probably just the pain killers she is taking for her neck pain.
A few days after the wreck she returns to her job as an administrative assistant. She struggles at work. Things that were once second nature now seem to require much more effort. She can't seem to perform more than one task at a time. By the end of the day she is exhausted. Over the next several weeks her boss notices a significant change in her work performance. There are repeated instances where she forgets to do assignments given to her. She has missed several days due to headaches. The boss wonders how much longer he can let the mistakes go. Her job is soon in jeopardy.
She makes an appointment to see her family doctor. She tells the doctor she is having persistent headaches, her thinking seems off and that she is having difficulties performing her job. The doctor tells her she probably has a "mild" concussion and that she should be fine in a few weeks. No referral to a neurologist is made.
Over the next several months she becomes increasingly depressed. She is tired all the time. Her frustration increases with every misplaced object or forgotten task. She is irritable. She doesn't understand what is happening to her. Slowly she withdraws from family life. She loses her job. Her friends start avoiding her. Within a year of the wreck her personal and professional life are in shambles.
When most people think of brain injuries following truck wrecks they think about people in wheelchairs or in a coma. Few people think of the devastating affect that a mild traumatic brain injury can have on an individual. Traumatic brain injury has often been called the "silent epidemic" because for years such injuries went unrecognized, undiagnosed and untreated. Complaints of memory loss, personality change, and diminished mental abilities following motor vehicle wrecks were frequently dismissed by medical professionals as "litigation neurosis" or simply ignored altogether. Individuals with acquired brain injuries were left with disabling injuries that went uncompensated because many in the legal profession did not recognize the connection between the traumatic event and the subsequent change in the client's mental functioning.
Representation of individuals with acquired brain injury is a rewarding and challenging undertaking for even the most experienced attorney. Effective representation of a client with an acquired brain injury requires a basic understanding of how such injuries occur, how they are diagnosed and treated by the medical profession, and the effect brain injury may have on a survivor's ability to work and interact with others. This article will discuss some of the basic concepts in handling a TBI case.
II. BASIC MEDICAL CONCEPTS
An acquired brain injury is an injury to the brain caused by trauma, neurotoxins, vascular disorder or anoxia. According to the Center for Disease Control and the Brain Injury Association of America more than 1,400,000 brain injuries occur annually in the United States. Approximately 50,000 people die each year from brain injuries and more than 235,000 have injuries severe enough to require hospitalization. 1,100,000 people are treated and released from emergency departments each year as a result of traumatic brain injuries. Trauma is the most common cause of acquired 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 traumatically induced acquired brain injury is the closed head injury. A closed head injury is defined as an injury to the brain without penetration or breech of the skull. Early studies conducted on animals and human cadavers confirmed that trauma may cause physical changes to the brain without damage to the skull. Recent developments in neuroimaging have dramatically changed our understanding of brain function and how it is affected by trauma. 3 Tesla MRI's, PET (positron emission tomography) scanners, DTI (Diffusion Tensor Imaging), fMRI (Functional MRI), are now enabling neurocognitive scientists to study brain function in ways that were unimaginable even 20 years ago.
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) impact with the skull; b) cavitation; and c) rotational acceleration. Each of these forces causes a different type of injury.
Two types of injury occur: primary damage and secondary damage. Primary damage is an injury to the brain cells directly attributable to the force of the trauma. Secondary damage is injury caused by factors such as the release of large quantities of neurotransmitters by injured and dying brain cells, increased pressure within the skull, and reduced flow of blood to the brain or following the injury. In sufficient quantities, neurotransmitters may become toxic to neurons and may lead to programmed cell death called "apoptosis."
Brain injuries are typically classified as mild, moderate or severe. These classifications can be misleading because they are based on an initial assessment of the life threatening nature of the injury and not the long term consequences of the injury on the individual. The Glasgow Coma Scale (GCS) was developed to quantify brain injury in acute trauma patients. The scale is based on a separate assessment of eye, verbal and motor responsiveness. The GCS may provide some indication of long term prognosis, particularly in cases of severe brain injury, but in general it is poor at predicting long term outcome.
A "mild" head injury is defined as an injury resulting in unconsciousness of less than 30 minutes or an initial Glasgow Coma Scale of 13-15. It includes an injury that causes the injured person to become dazed or disoriented but not a complete loss of consciousness. It is now widely recognized that an individual may suffer brain injury resulting in long term cognitive deficits without loss of consciousness. A "moderate" head 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."
The American Congress of Rehabilitation Medicine attempted to formulate a more uniform definition for mild 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:
1. Any period of loss of consciousness;
2. Any loss of memory for events immediately before or after the accident;
3. Any alteration in mental state the time of the accident (e.g., feeling dazed, disoriented, or confused); and
4. 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 mu\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 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" 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 injuries may recover sufficient mental functioning to return to employment and relatively normal, productive lives. Many factors, such as educational level, coping skills, employment skills, family support, and the presence of other disabling injuries will contribute to the final outcome.
C. Mechanism of Injury
1. Impact with Skull
The consistency of the brain is often compared to that of custard. The brain 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, particularly in the lower half of the skull. These bony ridges cause injury when the brain rapidly moves over them.
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, stretching and tearing of brain tissue. It may also result in microscopic bleeding that cannot be detected on CT or MRI.
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.
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 the most extreme cases of diffuse axonal injury the grey matter is virtually disconnected from the white matter in parts of the brain. This disruption of the neural pathways may cause the injured person to remain completely unresponsive in what is known as a persistent vegetative state. With proper medical care, an individual may remain in such a state for many years without ever regaining consciousness.
D. Brain Function
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 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. Obviously, 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.
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. They also experience a loss of inhibition and difficulty maintaining concentration and attention. Injury to the frontal lobe may result in profound personality changes.
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.
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 typically results in a flattened affect. The perception and understanding of emotion in others may be compromised in some individuals with injuries in this area.
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 Brain Injury
The diagnosis of brain injury is not difficult in cases of moderate or severe injury. By definition, a person has sustained a brain injury once either a loss of consciousness or change in mental status has been established. Diagnosis can prove more difficult in cases of mild brain injury. Often the patient is not certain whether they lost consciousness at the time of the injury. Because symptoms 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. The diagnosis of traumatic brain injury is completely missed by treating physicians in many cases of mild brain injury. Sometimes, cognitive deficits may not become readily apparent until the person returns to work or school and attempts to resume their normal routine. 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, as well as assessments of gross memory and judgment. It is not unusual for the standard neurologic examination to be within normal limits in persons with mild or even moderate brain injury.
2. Imaging Techniques
Mass lesions such as epidural or subdural hematomas are typically visible on MRI or CT scans. 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 MRI or CT does not rule out the diagnosis of brain injury. Other imaging techniques, such as Diffusion Tensor Imaging, (DTI), fMRI (functional MRI) and Positron Emission Tomography (PET) scans, are now proving useful in the diagnosis of mild brain injury. A PET scan measures the uptake of glucose and oxygen in the brain as well as cerebral blood flow. Areas of the brain with abnormal blood flow or which show reduced glucose uptake may indicate brain damage. DTI measures the direction of movement or flow (known as diffusion) of water molecules through tissue. Unlike other imaging technologies, DTI permits examination of the microscopic structure of the white matter of the brain, allowing for the detection of microscopic pathology or abnormality of the white matter. In the white matter of a normal/healthy brain, the direction of water diffusion is very uniform. Injury disrupts the normal structure of white matter leading to less uniform direction of diffusion.
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 typically normal in cases of mild or moderate TBI.
There has been significant debate over the reliability and accuracy of quantified electroencephalography (QEEG) for the diagnosis of brain injury. 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, then the information is analyzed by a computer to detect variations in brain activity that cannot be seen with visual analysis of polygraph EEG's. QEEG's has not gained general acceptance in the medical community.
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 where neuroimaging is interpreted as normal. It consists of a review of the patient's history and symptoms, a series or battery of tests and a clinical evaluation. The individual tests within the battery are designed to assess the functioning of a different part of the brain and thereby lateralize or focalize the area of injury. Neuropsychological testing is the only method currently available to accurately assess and quantify the cognitive deficits and personality changes that occur after a 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 initial testing of a person suspected of having a mild brain injury is within three months after the trauma. In cases of moderate to severe injury, initial testing should be delayed until the patient is medically stable and has emerged from post-traumatic amnesia. 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 commonly administered test battery is the Halstead-Reitan Neuropsychological Test Battery. Neuropsychological testing is also the most accurate method to determine if symptom magnification or malingering is an issue in the patient's recovery. Thus, the test battery should include a test designed to assess motivated deficits or symptom magnification. The entire test battery and evaluation requires 8-10 hours to complete.
F. Effects of Brain Injury
There is no such thing as a "typical" brain injury. The effect that a brain injury has on the individual depends on what areas of the brain are injured and how much brain tissue is damaged. The sequella from a mild brain injury are often referred to as "post-concussive syndrome" or "post-concussion syndrome." Post-concussion syndrome includes a wide variety of physical, cognitive and emotional symptoms which are associated with brain injury.
The physical manifestations of brain injury include nausea, vomiting, lethargy, headache, blurred vision, tinnitis (ringing in ears), dizziness and quickness to fatigue. Some persons with brain injuries develop persistent seizures. Other physical sequelae include loss of muscle control and coordination, spasticity, paralysis, loss of sensation and difficulty with balance. Many persons with traumatic brain injuries experience disruption of their sleep cycles, causing them to awaken frequently in the night or develop severe insomnia.
Cognitive symptoms may include impaired concentration and attention. Visual, verbal and spatial perception may be affected. Impairments in short term memory and the ability to process new information are common. Both verbal and non-verbal communication skills also may be greatly affected. The injured person may become rigid and inflexible in their thinking resulting in impaired problem solving skills.
Emotional/psycholgical symptoms include extreme mood swings (emotional lability), personality change, depression, irritability, lowered self-esteem, sexual dysfunction, inability to cope with stress, agitation, anxiety, denial, poor insight and judgment, reduced motivation, quickness to anger and inappropriate affect.
G. Prognosis following brain injury
The Brain Injury Association of America and the National Institutes of Health estimate that between 50,000 to 90,000 brain injury survivors are unable to return to a normal life each year because of physical, psychological, communication and vocational limitations. Research has shown that approximately 85% of those persons who suffer from a mild traumatic brain injury will eventually recover to the point they can resume a normal lifestyle. However, due to the large number of brain injuries that occur each year, the remaining 15% who do not recover constitute a large number of survivors. For these TBI survivors, even those who have suffered "mild" brain injury, the symptoms of post-concussion syndrome will be permanent and debilitating.
These individuals face a life that few people would voluntarily chose to live. The headaches and short term memory loss make every day activities difficult. Depression drains their energy and further diminishes the little pleasure in life that remains. Vocational limitations create terrible financial strain. Reduced coping and problem solving skills cause little problems to seem overwhelming. Interpersonal relationships suffer as a result of frequent mood swings and irritability. Friends, family and co-workers avoid contact with the survivor. Slowly the TBI survivor withdraws from social settings and becomes more and more isolated. Statistics show that the divorce rate for TBI survivors exceeds 90%.
While the initial period of unconsciousness or post-traumatic amnesia may give some indication of a patient's prognosis for full recovery, it remains extremely difficult to determine which patients will fully recover and which will not. One indicator of long term prognosis is how well the patient has recovered at 1.5 to 2 years post injury. Most brain injury patients will reach maximum medical improvement within that 1-2 year period. The odds are very high that at least some impairments will be permanent for patients who continue to experience symptoms past this time frame.
Research has also shown that survivors of traumatic brain injury may develop seizures 10, 15 even 20 years post injury. Other research suggests a strong link between acquired brain injury and the early onset of Alzheimer's Disease and other forms of dementia. In addition, it has been shown that the effects of brain injury are cumulative. This means that once a person has sustained a brain injury they are more susceptible to such injuries in the future and the effect of future trauma will be greatly magnified.
III. EFFECTIVE REPRESENTATION OF INDIVIDUALS WITH TBI
Effective representation of clients who have 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 and may create strain between the client and attorney. The client may not be very likeable or easy to get along with due to personality changes caused by their brain injury. Clients with frontal lobe injuries may frequently become angry and abusive to you and your staff. The TBI client 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 liability carrier may deny that the client is truly injured or attempt to minimize the impact of the injury on the survivor. In short, there are a myriad of problems that face an attorney representing the brain injured individual. Because mild 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 injuries.
A. INITIAL CLIENT INTERVIEW
It is not unusual for the diagnosis of mild traumatic brain injury to be missed following an motor vehicle 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 the symptoms of mild brain injury. 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 maintain a long term relationship with a physician. Thus, the physician does not have an opportunity to make her own comparison of the patient's speech, personality and memory before and after the event. Third, the physician does not spend enough time with the patient to observe symptoms of post-concussive syndrome. In many patient encounters, 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 brief interaction. It is only after spending some time with them that their deficits become readily apparent.
Therefore, the attorney should carefully screen every case involving significant impact for evidence of post concussion syndrome. At the initial interview the attorney should determine 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. The first step is to speak with a family member, significant other or even a close friend, as to whether the client has exhibited any symptoms of brain injury.
Once you suspect that a client has suffered a brain injury, immediately 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 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. 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, nausea, vomiting, signs of trauma to the head, abnormal reflexes, pupil dilation, or eye movements. Remember: significant brain injury may occur even where there is no loss of consciousness!
Inspect vehicle for signs of damage to interior which may indicate 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 friends, co-workers, family members for changes in behavior, motivation, personality job performance or memory loss.
C. ASSEMBLING YOUR TEAM OF EXPERTS
If it appears that the client may have sustained a brain injury after reviewing all of the information gathered thus far, have the client evaluated by a neuropsychologist to determine if there is evidence that a TBI has affected brain function. If possible, have another treating physician make the referral to a neuropsychologist you have chosen. Because of the cost involved (approximately $3,000-4,500) for a complete neuropsychological test battery, you may chose to initially have a neuropsychological screening performed. The screening is typically a clinical interview and a few selected tests or inventories. If the screening suggests the presence of brain injury, the entire battery can then be administered. After the examination a complete report should be obtained 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; k) a summary of how the deficits reported are likely to affect the patients activities of daily living and ability to work; and a recommended course of treatment.
Sequential neuropsychological testing is strongly recommended. Do not wait for a treating doctor to initiate testing. The first evaluation should be performed shortly after the traumatic event. The results will be used to show current deficit areas and to help formulate a treatment plan. The results of the initial evaluation should be provided to all treating doctors. The second evaluation will be performed after the client has reached maximum medical improvement. It will be used to establish any permanent deficits. Comparison of test results over time can also be used to establish the diagnosis of TBI as in many cases there will be a typical pattern of improvement.
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.
The expert team should include a life care planner and economist in most cases. Chose a life care planner who has experience preparing plans for individuals with brain injuries. The plan should include assessments of one time, non-recurring costs such as certain medical evaluations or architectural modifications to the home, durable equipment needs, recurring costs for physician visits and prescriptions, therapies and attendant care where appropriate. The economist will be needed to reduce all future medical costs and lost earning capacity to present value.
A neuroradiologist or biomechanical engineer may be necessary in cases where the defendants dispute either that a brain injury has occurred or that the brain injury has caused any long term deficits. The biomechanical engineer can show that the forces transmitted to the client in the collision were sufficient to case a brain injury.
Advances in neuroimaging are finally providing the opportunity to make the "invisible injury" real. One of the most promising technologies is diffusion tensor imaging or DTI. With DTI nerve fiber tracts in the brain can be visualized. Loss of nerve fiber volume can be used to show areas of injury that have resulted in cell death and volume depletion.
Because claims of mild traumatic brain injury have become more common in recent years, they have come under much closer scrutiny by liability insurance carriers. In many instances, insurers treat claims of mild brain injury with the same level of skepticism that they treat claims for 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:
a. Accident report;
b. Ambulance call report; All information contained in the ambulance call report which tends to document any period of unconsciousness should be clearly highlighted;
c. Initial ER records;
d. Complete copy of all hospital records as well as follow up notes from any physicians who have treated client for injuries sustained in accident;
e. Reports of any abnormal diagnostic tests such as MRIs, CT scans, EEGs, etc.;
f. A summary of the client's medical treatment;
g. 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;
h. 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 the assessment should also be included.
i. Photographs of any obvious signs of trauma to the head, such as lacerations, bruising or swelling;
j. Documentation of any lost earnings or lost earning capacity; and
k. A credible settlement demand.
In some cases you may wish to include:
l. 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.
m. 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;
n. Military service records;
o. Employee records or personnel files;
p. Photographs of vehicles involved or accident scene;
q. "Day in the Life" film;
r. Life Care Plan;
s. 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.
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 traumatic 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. Your 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 purely "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 all be normal in the presence of a real physical injury to the brain. Have the doctor teach the jury 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 lay 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 brain 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. Individuals 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.
Charles G. Monnett III practices law in Charlotte and concentrates his practice in the representation of persons with acquired brain injuries. He serves on the North Carolina TBI Advisory Board and the Executive Committee of the AAJ Traumatic Brain Injury Litigation Group.