Information
Legal and Medical Considerations in Traumatic Brain Injury Litigation
A. What Is a Traumatic Brain Injury.
i. Many terms are used interchangeably describing
brain injuries.
Over the years, the term “traumatic brain injury” has been
used interchangeably with the terms “brain injury,” “head
injury,” “closed head injury,” “concussions” and “post concussive
syndrome.”
ii. Confusion in the field because of linguistic
terminology.
Unfortunately, one expert’s diagnosis when using one of the
above terms may be different than another’s. For instance, some
believe that one can have a “closed head injury” or “head injury”
without having an injury to the brain. Others use those terms
synonymously with “brain injury.”
The diagnosis of “post concussive syndrome” or “concussion”
also does not necessarily clarify the fact as to whether or not
there is an injury to the brain.
iii.Distinction can be important.
The distinction as to whether a person has actually had
their “brain damaged” can be significant both for medical
treatment and for litigation purposes.
iv. The definition of traumatic brain injury (TBI)
used in this article.
For purposes of this article, a traumatic brain injury (TBI)
will be defined as an impact to the head which results in any or
all of the following:
► loss of consciousness.
► loss of memory as to events surrounding the
accident.
► neurological deficits that may or may not be
transient.
v. A move toward a simple diagnosis.
This definition of traumatic brain injury and some of the
alternative definitions and diagnosis will be discussed later in
this article.
There has been a move in the field in recent years to use
the term “traumatic brain injury” to describe the set of symptoms
that follow a concussion and actually involve damage to the
tissues of the brain. However, there will probably always be
some debate on the signs and symptoms that must be present to
make that diagnosis.
B. Who Can Sue for a Traumatic Brain Injury.
Any person, whether an adult or a minor, can sue if they
suffer a traumatic brain injury as a result of the misconduct of
another person or entity. This includes cases in which the
plaintiff himself or herself is partially responsible for the
accident which caused the traumatic brain injury and multiple
defendants have caused the traumatic brain injury through their
wrongdoing.
The spouse of the injured plaintiff can also bring suit for
loss of consortium damages; that is, damages for the loss of
society, comfort and care of the injured plaintiff. See the
section on Damages in this article.
C. Who Can Be Sued for Traumatic Brain Injury.
i. Any person or entity whose wrongful conduct caused
the traumatic brain injury (TBI).
Traumatic brain injuries can be caused by hundreds if not
thousands of events. If one of these events was set in motion by
another’s wrongful conduct, then that person or entity can be
sued.
ii. Possible defendants in a traumatic brain injury
case.
a. Owners and operators of motor vehicles
including:
► automobile drivers and owners.
► truck drivers and trucking companies.
► bus drivers and the bus companies.
► taxi drivers and taxi companies.
► motorcycle operators.
► boat operators and owners.
► bicycle operators.
b. Repair shops:
► shops that repair motorcycles, automobiles,
trucks, taxicabs, buses, bicycles, scooters and
any type of vehicles used for transport.
c. Product manufacturers and sellers of all
kinds of goods including:
► motor vehicle manufacturers.
► motorcycle manufacturers.
► bicycle manufacturers.
► helmet manufacturers.
► all types of protective headwear manufacturers
including helmets.
► drug manufacturers.
► boats.
► manufacturers of any product or device that is
improperly designed, that fails, explodes or
malfunctions and causes a head injury.
d. Public and private owners of land, roadways,
businesses and homes for dangerous conditions
or negligent acts.
► public entity for dangerous condition of public
property and failure to warn of dangers.
► private possessor or owner of land for dangerous
condition of public property and failure to warn
of dangers.
► landlords for injuries to tenants and other people
on their property.
► business owners.
► homeowners.
e. Employers.
► employers of any employee who negligently causes a
traumatic brain injury.
f. Airplane operators and owners.
► airplane and airline owners and operators as well
as other aviation-related owners and operators.
g. Anyone who intentionally or with careless
disregard causes a traumatic brain injury.
► anyone who intentionally or through careless
disregard of the safety of others causes somebody
a traumatic brain injury.
h. Anyone whose negligent act causes a traumatic
brain injury.
► anybody whose negligent act causes a brain injury.
i. People with special duties of care who fail
to act appropriately.
► anybody who owes a special duty to another person
and fails to act which causes a traumatic brain
injury. Samples of this type of liability would
include:
∙ responsibility of teachers and other school
officials for children.
∙ responsibility of all caregivers and care
providers for children.
∙ responsibility of caregivers and caretakers
of the elderly.
∙ responsibility of caregivers and caretakers
of dependent adults.
∙ if there is no immunity involved, a person
who takes charge of another person whom he or
she knows is likely to cause harm to others
if not controlled and then fails to exercise
reasonable control.
∙ in limited situations, a Highway Patrol
officer or police officer who promises to
protect a person and is not immune from
responsibility under the law.
∙ security guards in certain situations.
► doctors and other healthcare providers who have a
duty to act within the standard of care and cause
traumatic brain injury to their patients.
► obstetricians and other physicians and nurses
involved in the monitoring of pregnancies and
delivering babies.
► all owners and contractors involved in building
and construction.
► all entities that are involved in maintenance.
► hospitals and other businesses.
► toxic manufacturers, suppliers and others involved
in the possession or handling of toxics.
j. There are many potential defendants because
of the many ways a person can develop a
traumatic brain injury.
The list could go on and on because of the many different
ways in which a person can develop a traumatic brain injury. If
someone has developed a traumatic brain injury as a result of
what may have been somebody else’s fault, the person or their
family should consult with an attorney to learn about their
rights and possible defendants to sue.
D. The Importance of Understanding the Neuroanatomy of the
Brain and Brain Function to Be Able to Assess Traumatic
Brain Injury Cases.
i. Understanding neuroanatomy allows an attorney to
understand brain dysfunction and brain function.
The previous section dealt with the findings that most
clinicians believe are necessary to diagnose a traumatic brain
injury immediately post accident. Before discussing some of the
controversies surrounding the diagnosis and the residual effects
of traumatic brain injury, it is important to understand the
neuroanatomy of the brain.
What follows is a simplified but, hopefully, useful
discussion of brain anatomy.
ii. Weight of the brain.
An adult brain weighs approximately three pounds.
iii.What surrounds the brain.
The brain is surrounded by a bony chamber or vault known as
the skull.
iv. What lies between the skull and the brain.
a. The meninges.
Between the skull and the cerebral hemispheres of the brain
lie three coverings or membranes which are termed the meninges.
1. Dura matter.
The outermost membrane is known as the dura matter. It is
comprised of thick elastic material which adheres to the inner
surface of the skull.
2. Arachnoid membrane.
Below the dura matter is the arachnoid membrane.
3. Pfeia matter.
The third membrane is known as the pfeia matter.
4. Falx cerebri.
The outermost covering of the brain, the dura matter, forms
what is known as the falx cerebri, which divides the two cerebral
hemispheres.
5. Tentorium cerebelli.
The dura matter also forms a protective covering known as
the tentorium cerebelli, which divides the most posterior (rear)
part of the cerebral hemispheres from the cerebellum. In
addition, the dura matter separates the two cerebellars from the
spheres and forms the falx cerebelli.
6. Cerebrospinal fluid.
Located between the dura matter and the underlying
subarachnoid membrane is cerebrospinal fluid which surrounds the
brain and serves as a kind of shock absorber whenever the skull
makes contact with an immovable object or is rapidly accelerated
or decelerated (i.e., rapidly speeded up or slowed down).
v. The importance of the cerebral hemispheres.
a. Left hemisphere and right hemisphere
generally.
The cerebral hemispheres are roughly symmetrical with one
being known as the left hemisphere and the other being known as
the right hemisphere.
b. Traumatic brain injury cases mostly focus on
damage to the hemispheres.
In analyzing traumatic brain injury cases, much of the focus
lies on the cerebral hemispheres.
c. Functions of the cerebral hemispheres.
The cerebral hemispheres are the part of the brain which is
concerned with such functions as:
► intelligence.
► language.
► perception.
► judgment.
► memory.
► problem solving.
► knowing.
► thinking.
► social behavior.
► personality.
► emotions.
d. Cerebral hemispheres divided into four lobes.
The cerebral hemispheres themselves are divided into four
lobes:
► the frontal lobe.
► parietal lobe.
► occipital lobe.
► temporal lobe.
e. The functions of the various lobes of the
cerebral hemispheres.
The frontal lobe -- makes up 44% of our brain and is
responsible for our executive functions such as:
► initiation.
► organization.
► planning.
► execution.
► regulation of motor movements.
► almost all voluntary movements.
The temporal lobe -- contain the limbic system which allows
for:
► learning.
► retaining new information.
► regulating emotional behavior.
The parietal lobe -- this lobe is sensory in nature and
creates our individual body awareness.
The occipital lobe -- this lobe deals with:
► vision.
► spatial recognition.
► image recognition.
vi. Knowledge of brain anatomy and function helps
plaintiff attorney establish relationship between
trauma and injury.
It is important for a plaintiff’s attorney litigating a
traumatic brain injury case to understand the factors involved in
brain anatomy and function to help prove that a particular trauma
to the head is consistent with the type of dysfunction from which
the plaintiff now suffers.
E. Understanding the Type of Injuries That Can Occur to a
Brain.
i. It is probably more important for an attorney to
understand the type of injury to the brain rather
than the diagnosis given to a plaintiff.
Setting aside the issue of diagnosis, it is important for a
plaintiff and plaintiff attorney to recognize the type of
injuries that can be caused to a brain. A discussion of some of
these injuries will follow.
ii. Concussions.
a. Concussions most frequent brain injury.
Concussions are the most frequent type of traumatic head
injury effecting the brain. They usually follow a rapid
deceleration.
b. Impact with an object not necessary.
It is recognized that physical impact with an object is not
necessary to cause a concussion -- rapid movement of the brain
inside the skull is enough. (However, from a proof point of view
in a traumatic brain injury case, it is very helpful if there was
a physical impact.)
c. Microhemorrhaging within the brain.
Most experts believe that concussions usually involve
microhemorrhaging from stretching or shearing of the brain.
d. Actual damage to the brain in concussion
rarely is found on radiographic examination.
Unfortunately for plaintiffs in traumatic brain injury
cases, this type of microhemorrhaging and stretching or shearing
does not traditionally show up on diagnostic testing or imaging.
e. Typical symptoms that follow concussion.
Symptoms of a concussion vary with individuals, but include
usually some combination of the following:
► patient describes self as dazed.
► confusion.
► disorientation.
► subtle changes in personality.
► irritability.
► chronic fatigue.
► frustration.
► intolerance of others.
► bright lights are disturbing.
► loud noises are disturbing.
► need for increased rest and sleep.
iii.Contusions.
A contusion is a bruise on the surface of the brain. The
victims of contusions have symptoms fairly similar to people with
concussions; however, contusions will usually show up on CAT
scan, MRI or x-ray because blood will fill in a space normally
filled with brain matter, spinal fluid or other normal tissues in
the brain and surrounding the brain.
Contusions can frequently result in permanent changes in
personality, cognitive abilities and behavior.
iv. Severe brain damage.
Although there are diagnostic controversies as to what does
or does not constitute “severe brain damage” and what it should
be called, it is generally agreed that severe brain damage is
caused by movements of the brain which rotate and shear the inner
white brain matter and produce diffuse (spread out) and large
areas of dysfunction in the mid-brain, brainstem and subcortical
areas.
This type of brain damage is sometimes referred to as inner
cerebral trauma or severe diffuse axonal brain injury.
Traumatic brain injury victims with this degree of brain
damage are generally in comas from a few hours to many years and
they are highly likely to have some residual and permanent brain
damage and sometimes severe permanent brain damage.
v. Secondary brain injury.
Secondary brain injury occurs when a person receives a blow
to the head, usually a relatively minor impact. There are no
immediate traumatic brain symptoms; however, the blow to the head
is sufficient to cause swelling or edema and over a period of
hours, days and, in rare occasions, weeks, as the swelling
finally grows to the point that it affects brain function.
Unfortunately this type of intracranial hemorrhaging can
have considerable impact on a person’s prognosis and
rehabilitation efforts. It could result in infections,
intracranial pressure causing excruciating headaches and changes
in vascular blood flow which can disrupt a person’s entire
ability to function.
Further, this type of injury is extraordinarily difficult to
treat, especially if the hemorrhaging occurs in locations where
brain function and actually survival of the patient would be at
risk if there was an exploratory surgery attempting to solve the
problem.
If a client reports a head trauma with no symptoms for days
or weeks after the trauma, the possibility of a “secondary brain
injury” must be explored.
vi. Injury to the lobes.
a. Usually frontal lobe trauma.
As mentioned earlier, understanding brain anatomy is
important to understand which part of the brain was injured in a
subject accident.
In most motor vehicle accidents and accidents involving
falls in which there is a blunt trauma, the frontal lobe will be
the predominantly injured section of the brain.
b. “Executive functioning” impairement.
Most frontal lobe injuries result in permanent changes in
“executive function” including behavioral and cognitive
abilities.
c. People with frontal lobe injuries may appear
“normal” at first but slowly decompensate.
Many people with a frontal lobe injury will appear quite
normal to the untrained observer. Frequently, they will resist
treatment immediately post accident.
However, over days or weeks, a pattern of personality change
develops which frequently is more noticeable by the people around
the plaintiff than the plaintiff himself or herself. Family,
workmates and friends become concerned as the plaintiff becomes
irritable, easily fatigued, apathetic, impulsive, makes
antisocial comments, has rapid mood swings and frequently
develops a loss of sex drive.
d. Typical cognitive symptoms that result from
frontal lobe trauma.
The plaintiff will generally begin to notice cognitive
symptoms such as:
► loss of planning skills.
► forgetfulness.
► loss of train of thought.
► inability to complete simple tasks.
► inability to follow simple instructions.
► inability to complete a sentence.
► impaired problem solving.
► diminished insight.
► lack of expressive language skills.
vii.Coup and counter-coup injuries.
Technical terms frequently used to describe two kinds of
injuries to a brain are “coup” and “counter-coup.”
a. Difference between coup and counter-coup
injuries.
A coup injury occurs from an injury immediately under the
site of impact.
A counter-coup occurs at a location 180̊ away from the sight
of impact.
For example, if at a job site someone was slammed in the
forehead with a large board, they would generally receive a coup
injury.
On the other hand, when a person falls, they usually receive
a counter-coup injury.
Whether the injury has a coup injury or counter-coup
component, the plaintiff will still be suffering from a traumatic
brain injury.
b. How to explain coup and counter-coup
injuries to jurors.
To help jurors understand this phenomenon and relate it to
the neuroanatomy which would have previously been taught by an
expert during direct examination, this analogy is used:
The brain is like a bowl of Jello and when the skull
decelerates against an object, the Jello crashes into the inner
skull bony protuberances which can bruise, shear or damage the
soft Jello-like brain matter. In a high speed, rearend accident,
the Jello-like brain matter will first violently impact the back
of the skull and then when the skull rapidly decelerates, it then
will whip back and impact the inner aspect of the front of the
skull. Thus, the brain will have to endure a coup and a counter-coup injury as the skull whips back and forth.
F. The Legal Standard of Causation and its Importance in
Traumatic Brain Injury Cases.
i. Causation may be more difficult to prove than
fault.
In most personal injury cases, establishing fault of
defendants can be the most challenging part of the case and the
focus of investigation and liability expert testimony.
In traumatic brain injury cases, fault may also be difficult
to prove, but just as challenging will often be trying to prove
causation, i.e., that the subject trauma caused the traumatic
brain injury. Just as much or more investigation and expert
testimony may be involved in proving this issue than proving
liability. Thus, before discussing investigation and expert
testimony, this article will address the critical issue of
causation.
ii.
“A substantial factor” causation test.
Frequently, the most significant issue in a traumatic brain
injury case will be whether or not the alleged negligent or
intentional misconduct “caused” the traumatic brain injury. The
legal standard is whether or not the alleged misconduct “was a
substantial factor” in causing the traumatic brain injury.
iii.Even if causation of some traumatic brain injury
is clear, the defendant will contest the extent of
the injury.
In some cases, particularly cases involving accidents with a
great deal of force and clear indication of a severe blow to the
head, causation of some form of traumatic brain injury may be
relatively easy to prove. However, even in those cases, the
defense will almost always contest the plaintiff’s claim that the
trauma caused the “extent” of the claimed traumatic brain injury.
iv. The causation defenses in traumatic brain injury
cases.
In traumatic brain injury cases, the defense will almost
always take one or all of the following positions:
► whatever brain dysfunction exists, preexisted the
subject trauma.
► the subject trauma was incapable of causing
plaintiff’s claimed brain dysfunction because
there was not significant enough force on the
brain.
► the claimed brain dysfunction is really a
psychological dysfunction which preexisted the
accident or was caused by something other than the
accident.
► that the subject accident did not cause the
traumatic brain injury at all; rather, plaintiff
is faking the injury.
► the plaintiff is suffering from some type of
congenital or genetic defect which is progressive
and explains the plaintiff’s traumatic brain
injury symptoms and plaintiff’s deterioration.
►
the plaintiff is suffering from some type of
acquired illness which is causing the brain
symptoms.
► plaintiff’s injury is due to problems that
developed as a fetus or during birth.
► that the plaintiff’s brain symptoms are due to
alcohol or drug abuse.
► plaintiff’s brain symptoms are due to some type of
toxic exposure other than the subject accident.
► the plaintiff’s brain symptoms are due to old age.
v. Countering the causation defenses.
To counter these causation defenses, the plaintiff’s
attorney must carefully prepare the case to prove:
► the traumatic brain injury diagnosis is accurate.
► the subject trauma was in fact capable of causing
a traumatic brain injury.
► plaintiff had a normal birth.
► that the pediatric records indicate that the
plaintiff had a normal childhood.
► that the plaintiff, during the course of life, did
not suffer any trauma which could explain the
brain symptoms.
► that the plaintiff was highly functional in all
phases of brain function before the trauma.
► that the plaintiff always excelled at school and
work or at least did much better than post
accident.
► that the plaintiff did not have any significant
problems in personal or social relationships
pre-accident or, if they did, they would not be
problems consistent with a preexisting brain
injury.
► that the plaintiff did very well on achievement
tests.
► if per chance the plaintiff had any psychological
testing or neuropsychological testing before the
accident, a change can be demonstrated in post
accident testing.
► post accident neuropsychological testing that
confirms the existence of brain dysfunction
consistent with recent trauma.
► the plaintiff did not suffer from any illness
capable of causing brain symptoms.
► neurological or radiographic testing and imagery
that confirms the existence of neurologic
dysfunction acute in nature.
► the plaintiff did not have any preexisting
symptoms of impulse control or trouble controlling
emotions which would be consistent with a frontal
lobe injury.
► plaintiff was not exposed to any toxic substances
which could have caused brain symptoms.
► plaintiff never lost consciousness (other than
from anesthesia) before the accident.
► witnesses who either knew plaintiff before and
after the accident who will testify there was no
evidence of behavior consistent with brain
dysfunction before, but there is after the trauma.
► any other factors which would indicate that the
plaintiff was not suffering from a traumatic brain
injury before the accident and did not suffer from
any other exposure, illness or accident which
could explain the traumatic brain injury symptoms.
vi. Plaintiff can still prove causation even if they
had problems before the incident which muddies the
causation waters.
Most cases are not perfect and most people who suffer
traumatic brain injuries as the result of the misconduct of
another are not perfect. It is not at all uncommon for a
plaintiff in a traumatic brain injury case to have had problems,
illnesses, traumas, concussions and other difficulties before the
subject accident.
Preexisting problems, in and of themselves, and other
potential causes for a brain injury do not in any way mean that a
plaintiff will not prevail in a traumatic brain injury case.
Rather, the litigation becomes a process of sorting out what
problems are caused by the traumatic brain injury and what
problems may have preexisted the trauma or have been caused by
other factors.
In fact, many of these preexisting factors may have made
plaintiff even more vulnerable to the subject trauma and may
explain why plaintiff’s outcome is worse than would have been
predicted by the degree of trauma.
Remember, the subject trauma need only be a substantial
factor in causing the traumatic brain injury, not the only cause,
and a skillful plaintiff’s attorney should be able to overcome
most problems as long as the plaintiff was fairly functional
before the trauma; that there was in fact a significant trauma;
and, clear evidence of new and different symptoms of a traumatic
brain injury immediately or soon after the accident.
G. Investigation in a Traumatic Brain Injury Case.
i. Investigation is critical to prove causation.
However, in light of the importance of establishing
causation in a traumatic brain injury case, an early and thorough
investigation of the trauma or accident itself, the plaintiff’s
academic, medical, psychological, employment, work and social
history and an investigation and analysis of forces to the brain
involved in the accident will be critical.
ii. Investigation should be conducted as early as
possible.
A thorough investigation, preferably close in time to the
trauma that causes the traumatic brain injury, is of the utmost
importance. Since most traumatic brain injuries stem from
accidents, this section will focus on traumatic brain injury
investigations stemming from accident cases.
iii.Obtaining the police report.
a. Reports prepared in most severe accident
cases.
In most motor vehicle accidents, severe enough to cause a
traumatic brain injury, there will be a report prepared and filed
by either the local police agency or the California Highway
Patrol.
b. Police report should be obtained and reviewed
as soon as it is available.
Plaintiff attorney should obtain this report as soon it is
available and review it in detail.
c. Police reports not admissible into evidence
at trial.
Contrary to the belief of most people, the police report
itself is not admissible into evidence (except at an
arbitration), and unless the investigating officer qualifies as
an accident reconstruction expert, the opinions regarding who
caused the accident are not admissible into evidence.
d. Police report useful for information
contained within it that can be used as
evidence and for further investigation.
However, the photographs, measurements, observations and
statements from witnesses can come into evidence at the time of
trial if plaintiff can lay a proper “foundation,” i.e., basis,
for the findings of the investigating officer to come into
evidence.
e. There may be police reports even in cases of
serious falls or other non-motor vehicle
traumas.
In cases in which traumatic brain injuries are caused by
falls or traumas other than motor vehicles, there still may be a
police report if the police are called in to investigate the
accident. These reports should be obtained by the plaintiff’s
attorney.
f. Aspects of police reports that may help
plaintiff prove causation in a traumatic
brain injury case.
The aspects of a police report which may be critical for
proving causation in a traumatic brain injury case include:
► any testimony or physical evidence that indicates
the speed of any motor vehicle involved in the
accident.
► any evidence that tends to indicate the speed of
any motor vehicle at the time of impact.
► any evidence that tends to indicate that the
plaintiff hit his or her head during the impact,
such as a bent A-frame, evidence of roof crush in
a rollover, head rest or cracked windshield.
► photographs of the vehicle or of the plaintiff
immediately after the accident which indicate head
trauma.
► in the case of motorcycle or bicycle accidents, a
scraped or fractured helmet.
► any evidence noted by the police officer or
witnesses of an “altered” state of consciousness
such as woosiness.
► any evidence that the plaintiff was unconscious
for any period of time.
► that the plaintiff was not able to engage in any
particular movement which would relate to an
injury of any particular portion of the brain.
► irrational behavior on the part of plaintiff.
► a plaintiff who was unable to speak after an
accident.
► any evidence that the plaintiff had difficulty
balancing after the accident (hopefully not caused
by intoxication).
► any pre- or post-accident amnesia (retrograde or
antegrade amnesia).
► any loss of sensation, such as vision, smell or
reduction in hearing.
► any paralysis.
► any evidence of direct trauma to the head such as
bleeding, swelling and discoloration of facial
skin, apparent skull fractures.
iv. Paramedic or ambulance reports.
a.
Paramedic reports focus on plaintiff’s
injury, not who caused the accident, so may
be more valuable than police reports.
In most significant traumatic brain injury cases, the
plaintiff is, at least, examined by paramedic or ambulance
personnel at the scene of the accident and usually is taken by
paramedics or ambulance to a hospital. Whenever this occurs, the
paramedics or ambulance workers prepare a report.
This report can be particularly significant in a traumatic
brain injury case because the observations on the report are made
by trained medical personnel who are very experienced in spotting
the signs and symptoms consistent with a traumatic brain injury.
A plaintiff attorney should quickly obtain a copy of the
report, which will contain much of the same information as is in
the police report (which can only help the plaintiff’s case if
its consistent), but while the police report will be mostly
focused on fault, the paramedic or ambulance report will be
focused on the plaintiff’s medical condition.
b. What to look for in a paramedic’s report.
The report will generally contain a description of
plaintiff’s injury, both from witnesses and observation. If the
paramedics observe anything visually consistent with a head
injury, they will usually report it. This can include:
► unconsciousness.
► altered state of consciousness.
► disorientation.
► lack of eye movement or irregular eye movement.
► no speech or slurred speech.
► balance difficulties.
► concussions.
► impulse control problems.
► irrational behavior.
► fatigue.
► failure to respond to stimuli.
► decreased response to stimuli.
v. Fire department report.
Sometimes a fire department is called to the scene of an
accident and to be thorough, the report of the fire department
should also be obtained. It may contain information similar to
that involved in the police report and paramedic report, but
occasionally there can be some additional useful information
particularly if the fire department personnel were the first
emergency personnel at the scene.
vi. Reports from other investigating bodies.
Depending upon the type of accident or trauma involved,
other state and private investigating agencies may investigate an
accident and prepare a report.
For instance in airplane accidents, the NTSB will prepare
reports. In train accident, Federal and local agencies, as well
as the railroad company itself, may investigate and prepare a
report. In construction accidents and other workplace accidents,
CAL-OSHA will perform an investigation and prepare a report.
All of these reports may contain useful information for a
traumatic brain injury case and should be obtained.
vii.The emergency room records.
The importance of emergency records in traumatic brain
injury cases cannot be overstated. This will usually be the
first time post accident that the plaintiff is seen by highly
trained healthcare providers, including doctors. The
observations, findings and conclusions of the emergency room
personnel will be critical.
An attorney should study these records page-by-page very
carefully, alert to any signs consistent with a traumatic brain
injury like impulsive behavior, acting out behavior,
disorientation, failure to be aware of surroundings, memory
losses (even if there is just a gap of memory surrounding the
accident), hyper fatigue or hyper sleepiness or dyslexia. Also,
look for evidence of a blow to the head such as bleeding,
bruising, discoloration or swelling.
Doctors and nurses will record the same type of findings and
observations as the paramedics. However, these observations will
carry more weight, particularly the observations of the medical
doctor, because of superior training, familiarity evaluating
accident victims and because by the time the plaintiff is in the
emergency room, a significant amount of time has passed since the
accident and continuing signs of traumatic brain injury generally
indicate a more significant trauma and injury from that trauma
(although, as will be explained later, the degree of trauma to
the brain may have very little to do with the long lasting
effects of a traumatic brain injury -- still, the case is helped
if consciousness and an alteration of consciousness or other
signs and symptoms of a brain injury continued into and through
an emergency room examination).
Finally, an emergency room doctor’s diagnosis of traumatic
brain injury, post concussive syndrome or some similar diagnosis
will be helpful for the plaintiff’s case.
viii. Collection of all records indicating a
plaintiff’s functioning and medical and
physical condition from the date of birth to
the date of trauma.
Because the determination of causation and the assessment of
damages in a traumatic brain injury case is so heavily dependent
upon the changes in a plaintiff before and after an accident,
plaintiff attorney should obtain whatever records are available
to indicate plaintiff’s functioning, psychological and medical
condition from birth to the date of the accident.
The defense will surely request all of this information once
litigation begins; therefore, it is to plaintiff’s advantage to
collect this data as early as possible to help prepare for the
case. This will include:
► obstetrical records of the plaintiff’s mother.
► birth records of the plaintiff.
► pediatric records of the plaintiff.
► all school records of the plaintiff from preschool
on.
► all employment records of the plaintiff.
► all medical and hospital records of the plaintiff
as an adult even if they involve treatment of
clearly unrelated conditions.
► all psychological and counseling records of the
plaintiff.
► results of any aptitude tests.
► x-rays and other radiographic evidence.
ix. Collection of post-accident records.
Plaintiff attorney should obtain at least the following
post-accident records to help prove a traumatic brain injury:
► all post-accident hospital records.
► all post-accident treatment records with any
physician, neuropsychologist, psychologist or
other healthcare providers, whether apparently
related to the trauma or not.
► results of any neuropsychological testing
performed after the accident.
► results of any radiographic tests such as CAT
scans, MRIs, PET scans or x-rays.
► any work records if the plaintiff has gone back to
work or a statement from the employer of wage loss
if the plaintiff has missed or not returned to
work. (It is important to get the records
themselves, not just a statement from an
employer.)
► if self-employed, any evidence which would
indicate plaintiff’s earnings before versus after
the accident.
► any school records if the plaintiff returned to
school or attempted further education.
► any vocational training or rehabilitation records.
x. Plaintiff’s attorney should conduct his or her own
accident investigation in addition to the police
investigation.
Plaintiff’s attorney should not wait for or depend upon a
police report in investigating their case. An investigator
should be retained immediately to go to the scene and document
whatever evidence is available and take pictures and videotapes
of the scene, the vehicles involved in the accident.
Further, the investigators should take photographs of any
observable evidence of the plaintiff’s head injury and any
videotapes which will document the plaintiff’s loss of function.
xi.
The importance of maintaining and preserving the
vehicles, machine, dangerous condition of property
or whatever else was involved in the accident.
Almost all traumatic brain injury cases will involve an
analysis by experts, and ultimately jurors, of the amount and
type of forces on the plaintiff’s brain during the impact. To do
this, the experts and jurors will have to rely upon whatever
evidence is still available to analyze the degree of impact. The
more evidence that is available, the better.
Thus, every and all steps possible should be taken to
preserve whatever evidence can be reasonably preserved.
Plaintiff should never have his or her own vehicle repaired
or destroyed until the litigation is ended. Plaintiff should
request and insist that the defendant or the defendant’s
insurance company not repair or destroy a vehicle and, if
necessary, in a serious injury case, the plaintiff should buy it.
If the traumatic brain injury is caused by a defective
helmet or some other product, the plaintiff must take all steps
to maintain the product in its precise post-accident condition.
In cases in which evidence can’t be preserved, such as cases
involving a dangerous condition of public or private property
which, for the public safety, must be repaired, plaintiff should
take extra care documenting the condition of the property at the
time of the accident by photos or videotapes.
xii.Early retention of experts as part of
investigation.
Expert witnesses will be discussed in more detail below;
however, in a significant traumatic brain injury case,
plaintiff’s attorney should generally retain an accident
reconstruction expert and sometimes a biomechanical engineer at
the very beginning of the case to observe the accident evidence
while it is still “fresh” such as skidmarks, signage which may
later change, dangerous conditions of property, etc.
Further, the expert can help guide the investigation and
help the plaintiff attorney prepare for the “formal” discovery
which will take place once the litigation begins.
xiii. Statements of witnesses.
Plaintiff’s investigator in a traumatic brain injury case
should locate witnesses to the plaintiff’s condition just before
and after the accident and have them sign declarations of their
observations if they are favorable to the plaintiff’s case.
Sometimes even a “neutral” statement can be helpful such as a
witness who comes to the plaintiff’s care after an accident
stating that they did not smell any alcohol on the plaintiff’s
breath.
Eventually, plaintiff’s attorney may want to obtain
statements or testimony from “before and after” witnesses
demonstrating the plaintiff’s long term functioning before the
accident and poor functioning after the accident. Ideally,
statements will be obtained from fairly non-biased observers such
as clergy members, employers or doctors of the plaintiff both
before and after the accident and can testify to the change.
However, the statements and testimony of people who knew the
plaintiff only before or only after the accident can still be
valuable. Before and after witnesses can be particularly
impressive to jurors who may distrust the testimony of experts
H. The Biomechanics of Brain Injury and Retaining a
Biomechanical or Biomedical Expert.
i. When a biomechanical or biomedical expert should
be retained.
In any case in which a plaintiff is suffering from
significant residuals from a traumatic brain injury and there is
an issue as to whether the trauma:
(1) was capable of causing a traumatic brain injury or
(2) was capable of causing a brain injury significant
enough to explain all of plaintiff’s post trauma dysfunction
and symptoms,
the plaintiff should consider retaining a biomechanical or
biomedical expert.
ii. Essence of a biomechanical analysis.
A biomechanical analysis of an impact, if there is enough
evidence available, allows the expert to calculate the forces
resulting from the collision and to prove whether or not they
were sufficient to cause the traumatic brain injury.
iii.Biomechanical analysis in motor vehicle accident
cases.
In the case of motor vehicle accidents, there are three
phases to standard biomechanical procedure:
► vehicle dynamic analysis -- this is performed in
order to determine the forces exerted on the
vehicle as a result of the collision.
► human body dynamics analysis -- this is performed
in order to determine the forces exerted on the
human body as a result of the collision.
► comparing the results of the vehicle dynamic
analysis and human body dynamics to human
tolerance values -- this allows the analyst to
compare the resulting forces on the human body in
the accident with the human body tolerance values
that reveal how much force the human body can
absorb without injury.
iv. Biomechanical and biomedical analysis of injury
mechanisms to the head in trauma.
a. Motion of the head during a motor vehicle
impact.
When the head is subjected to a direct external impact or
sudden acceleration and then is suddenly stopped (which happens
in almost all accidents), the resulting motion can be:
► rotation.
► sideways.
► chin down or chin up as it pivots on the cervical
spine.
b. Forces to brain can be direct contact with a
hard object or acceleration/deceleration
within the skull.
Large forces causing traumatic brain injury can result in
direct head contact with hard objects or from a sudden
acceleration/deceleration that occurs during the violent flexion
extension movements of the head after a rearend vehicle
collision.
c. Three major mechanisms that contribute to
traumatic brain injury.
There are three major mechanisms that contribute to
traumatic brain injury:
► impact of the brain against the skull.
► cavitation.
► shear between layers of the brain.
1. Impact of the brain against the skull.
In a rearend collision, the skull starts its acceleration in
a rearward direction, the brain resists movement due to inertia,
leaving a space at the back of the skull. Once the initial force
on the brain starts to overcome the inertia, the centrifugal
force lifts the brain, leaving spaces under the brain.
Both the inertia and the centrifugal forces cause the brain
to impact against the skull.
When the skull stops and rebounds, the brain impacts the
skull in two motions, downward and backward. These rebounds,
from both directions, cause impact at the base of the skull. The
fact that the underside of the skull contains a number of bony
ridges contributes to the severity of brain injuries.
2. Cavitation between the brain and the
skull.
The second mechanism that sometimes contributes to brain
injury is cavitation.
Cavitation is a complex mechanical engineering concept which
basically states that as a mass moves rapidly through a fluid,
the pressure in front of the mass is high and the pressure behind
the mass is low. In the low pressure zone, vapor-filled bubbles
are formed. When the mass moves in the opposite direction, the
pressure returns to a normal level and the bubbles collapse.
When this occurs, the creation and destruction of these bubbles
can create forces strong enough to damage very strong materials
such as steel.
In a collision, the brain is a rapidly moving mass. During
forward motion of the brain, the vapor-filled microbubbles are
formed behind the brain, where the pressure is low. During the
rebound, the brain moves backward, collapsing these bubbles and
creating forces which disrupt tissue. As the brain moves
rearward, causing the vapor-filled microbubbles to collapse in
the back of the brain, a new set of microbubbles may be formed in
the front of the brain that will also collapse when the pressure
level returns to normal.
When the point of injury in the brain is the opposite of the
point of impact to the brain (i.e., a countercoup injury),
cavitation is the most commonly accepted explanation.
3. Shear between layers of the brain.
A third possible mechanism of brain injury is a shear.
Shear is based on effective rotational acceleration or
deceleration and sliding effect of one layer of the brain with
respect to another layer.
Shear occurs within the brain because of a difference in
density between layers. Further, the layers of the brain are
placed at different distances from the point of head rotation.
As a result, the outside layers shift faster and further than the
inside layers.
The forces resulting from this kind of motion can result in
damage to the axons and may cause a loss of function typically
referred to as a “diffuse axonial injury,” injury found
throughout the brain’s tissues.
v. Human brain tolerance limits.
The human brain tolerance limits are defined as the minimum
force necessary to cause a brain injury. If the forces resulting
from a collision are greater than the brain tolerance limits, one
can conclude that the forces were sufficient to cause a brain
injury.
A biomechanical or biomedical expert can testify to the
human brain tolerance limits under clearly defined conditions
such as:
► linear motion (forward/backward direction).
►
lateral motion (side to side direction).
► angular motion (rotational).
The best indicator of the severity of the brain injury is if
the head acceleration/deceleration.
The actual formulas necessary to compute forces are too
complicated to state here; however, they are within the knowledge
of biomechanical engineers with expertise in brain injuries.
vi. Experiments reconstructing the forces.
It is sometimes very useful, if there is enough evidence, to
have a biomechanical or biomedical expert perform experiments
reconstructing the forces on the plaintiff’s brain in the subject
trauma. Obviously, the expert will utilize a dummy or a skull
model, rather than retraumatizing the plaintiff’s brain. A video
of these studies can be very persuasive evidence on the issue of
“causation,” i.e., whether the trauma caused the brain injury in
a traumatic brain injury case.
Also, automobile, helmet and other manufacturers may have
their own studies which may be available to the public which will
provide useful visual studies of trauma forces on the brain and
may be admissible into evidence in the appropriate case.
vii.The difference between biomechanical and
biomedical engineers.
Both experts can testify to the forces that exist in a given
trauma, but biomedical experts have more medical training and can
testify to the actual causal medical relationship between
traumatic forces and a brain injury.
I. Tailoring Selection of Damage and Causation Experts for
the Right Traumatic Brain Injury Case.
i. Experts to choose from.
There are four types of experts (excluding biomedical
experts) that can testify to brain injury issues in traumatic
brain injury cases. They are:
► neurologists.
► neuropsychologists.
► psychiatrists (who sometimes label themselves
“neuropsychiatrists).
► physiatrists.
ii. Brain injury effects function in the cognitive,
psychological and physical spheres.
Before discussing what type of expert to choose, it is
important to understand that every traumatic brain injury effects
a plaintiff’s functioning in the following three areas:
► cognitive.
► emotional/psychological.
► physical.
The cognitive aspects of brain damage include such things as
difficulty thinking, concentrating, memory problems, etc.
The emotional/psychological aspects of a brain injury
include symptoms of depression, lowered self-esteem, anxiety,
etc.
The physical aspects of a brain injury include headaches,
fatigue, loss of motor control, loss of sensation, etc.
iii.Different types of experts will focus on different
aspects of a traumatic brain injury.
Broadly speaking, neurologists and physiatrists focus on the
physical aspects of a traumatic brain injury, neuropsychologists
focus on the cognitive aspects while psychiatrists and
psychologists focus on the emotional/psychological component.
iv. The overlapping nature of the cognitive, emotional
and physical aspects of a traumatic brain injury.
In fact, the cognitive, emotional and physical aspects of a
traumatic brain injury all overlap and interreact with each
other.
For instance, a physical symptom such as a headache can
create a cognitive symptom such as the inability to concentrate.
A cognitive symptom such as an in ability to concentrate can
create a psychological symptom such as depression. Depression
can cause a cognitive symptom such as memory difficulties and
memory difficulties may cause a patient frustration which may
make the headaches worse.
This phenomenon is sometimes described as a “dysfunctional
loop” as the problems of the plaintiff in one area of functioning
cause problems in another area of functioning and it goes on and
on. It is one of the most difficult aspects of treating patients
with traumatic brain injuries and one of the reasons why the
“miserable minority” of patients who never seem to get better
exists.
v. Neurologists might be good experts for the right
moderate to severe brain injury case.
Generally speaking, in most cases with moderate to severe
traumatic brain injury there will be some significant physical
component which will require treatment by a neurologist; thus, a
plaintiff attorney should consider retaining a neurologist in
this type of case.
vi. However, neurologists are the wrong experts for
most other cases.
However, when serious physical symptoms and “focal,” i.e.,
localized, defects are not present, there is really nothing for
the neurologist to diagnose and treat, so they tend to either
find that there is no traumatic brain injury or will diagnose a
post concussion syndrome by history alone without any really
significant diagnostic workup.
Thus, in most cases involving mild traumatic brain injury,
neurologists are not particularly helpful and can be harmful to a
plaintiff’s case.
vii.Psychiatrists may do more harm than good,
especially if they don’t have neuropsychiatric
training.
Psychiatrists, who are actually board certified by a
combined psychiatry and neurology board, can be particularly
helpful in cases with a major emotional component. However, the
emotional component of a traumatic brain injury is usually not
the plaintiff’s “friend” in a traumatic brain injury case because
the defense will want to claim that all of the plaintiff’s
problems are psychological and not due to a traumatic brain
injury from the subject trauma.
Like neurologists, psychiatrists can not really add anything
in terms of a diagnostic workup in a traumatic brain injury case
even though they are far more sympathetic to the plight of mild
traumatic brain injury plaintiffs than neurologists, and thus
will give favorable testimony, the basis of that testimony will
be dependent upon something other than tests actually performed
by the psychiatrist. The exception to this principle may be a
psychiatrist who has special neuropsychiatric training that
allows the “neuropsychiatrist” to perform some specialized
testing and may make the expert more specialized than the average
psychiatrist.
viii. You need a neuropsychologist.
Neuropsychologists, through specific neuropsychological
testing, are able to diagnose traumatic brain injury and
establish that the plaintiff’s functional disabilities and
symptoms are correlated with test findings which indicate
traumatic brain injury.
The type of testing done by neurologists, psychiatrists and
radiologists test only for “gross” focal defects, i.e., the type
of defects which would stem from a large lesion in a specific
portion of the brain. This type of lesion will generally show up
on a MRI or CAT scan. Because the great majority of mild
traumatic brain injury cases involve “diffuse,” i.e., generalized
and subtle, defects, very often the only diagnostic tool
available to verify the plaintiff’s traumatic brain injury will
be neuropsychological tests which are highly sensitive to subtle
defects and higher brain functioning.
Thus, the retention of a neuropscyhologist is critical in
probably every traumatic brain injury case, but certainly in
every mild traumatic brain injury case.
ix. Physiatrists will help plaintiff’s case by
trumping the defense neurologist or psychiatrist.
Physiatrists are medical doctors who specialize in
rehabilitating severely injured people or people who have had
severe illnesses such as strokes. There are physiatrists who
specialize in the treatment and rehabilitation of people with
traumatic brain injuries and brain disease from other sources.
They tend to get stuck treating the people that neurologists
can’t find anything wrong with or can’t help; thus, they tend to
be sympathetic to the plight of plaintiffs with mild traumatic
brain injuries.
Physiatrists can focus on the physical aspects of a
traumatic brain injury, just like neurologists, plus some
specialized physiatrists can perform more subtle tests than
neurologists. Further, they can and will rely on the reports and
input of a neuropsychologist. They are used to a “team” approach
for the treatment of brain injuries so they fit in nicely with a
team of plaintiff’s experts, whereas neurologists tend to
practice alone.
Hiring both a physiatrist and a neuropsychologist is
generally a good idea in a significant enough traumatic brain
injury case. It takes away the defense’s ability of claiming
that their neurological expert is somehow superior to a
neuropsychologist because they are a medical doctor and a
neuropsychologist is only a psychologist.
Further, both physiatrists and neuropsychologists are
familiar with the fact that the rehabilitation from a traumatic
brain injury can take years and years and some people never
recover. Neurologists would have no idea about this phenomenon
because after the initial traumatic phase, they would have no
reason to treat someone with a mild traumatic brain injury
because there is nothing they could do to help them.
Neuropsychologists and physiatrists can provide supportive and
rehabilitative treatment and therapy to these individuals to help
them develop coping mechanisms and adjust to their disability.
J. Vocational/Life Care Planning Experts and Economists.
i. Vocational and life care experts.
In a traumatic brain injury case in which the plaintiff will
require any type of attendant care, whether at home, nursing home
or any other type of rehabilitation facility, as well as in a
case in which the plaintiff’s ability to work has been
diminished, altered or eliminated, plaintiff should consider
retaining a vocational/life care expert. These experts will help
determine the exact nature of the plaintiff’s losses and quantify
the amount of money that will be required to take care of the
plaintiff in the future and replace the loss of income.
ii. Economists.
Then, an economist can use the findings provided by the
vocational/life care specialist to explain to a jury the concept
of present value and aid them in determining how much money they
would have to award to the plaintiff to fully compensate for his
or her losses, which can frequently be in the millions of dollars
in traumatic brain injury cases.
K. Distinguishing Traumatic Brain Injuries from
Psychological Injuries and Disorders.
i. The defense will try to claim that plaintiff’s
symptoms are due to psychological disorders.
In most traumatic brain injury cases, the defense will
attempt to establish that the plaintiff’s symptoms are
psychological in nature and not the neurological effects of a
brain injury. The defense will attempt this strategy even in
cases of moderate or severe brain injury because so many of the
important symptoms that effect traumatically brain-injured people
“look psychological” and are sometimes are consistent with
psychological disorders such as depression, anxiety and many
longstanding personality disorders.
It is generally to the plaintiff’s advantage to prove that
symptomatology stems from a traumatic brain injury versus a
psychological injury because:
► traumatic brain injuries are not as treatable as
psychological injuries.
► proving causation (i.e., that the trauma caused
the injury) will generally be more straightforward
when there is a psychological injury case where
many non-accident related events can contribute to
symptomatology.
► traumatic brain injuries are almost always, by
definition, permanent.
► if radiographic or neuropsychological testing is
positive, traumatic brain injuries are more easily
provable.
► the idea that someone has lost “brain function” as
opposed to a psychological injury is generally
more impressive to jurors and seen as a more
significant loss.
However, keep in mind that psychological injuries are fully
compensable even if there is no provable traumatic brain injury.
ii. First line of offense for the plaintiff.
Obviously, from a plaintiff’s point of view, the first step
in overcoming this defense will be to establish:
1. that there was a significant enough blow to the
head to cause a traumatic brain injury; and
2. that there was in fact an injury to the brain
through diagnostic testing.
iii.The cart and the horse.
As one expert stated when being cross-examined by a defense
attorney on the issue of whether or not the plaintiff’s symptoms
were consistent with an emotional disorder,
“You have to take the horse before the
cart. You are asking me to discuss the
‘cart’ -- that is -- symptoms consistent with
‘clinical depression,’ while asking me to
ignore the ‘horse,’ -- the existence of a
concussion which makes a traumatic brain
injury diagnosable and which clearly and
immediately preceded the onset of the ‘cart-like’ symptom of clinical depression.’”
iv. Establishing other factors which indicate
plaintiff is suffering from a brain injury as
opposed to a psychological injury.
Thus, proving the existence of sufficient trauma to cause a
brain injury and diagnostic evidence of brain injury are the
first steps for a plaintiff attorney in distinguishing traumatic
brain injury symptoms from the symptoms of an emotional or mental
disorder. Further, useful techniques for establishing that
symptoms such as depression, anxiety, loss of impulse control,
cognitive problems, acting out behaviors, headaches, memory
problems, sleep difficulties, mood changes, apathy, etc., are due
to neurologic as opposed to psychologic causes are:
► establishing that the overall constellation of the
plaintiff’s symptoms do not fit into a known
psychiatric diagnostic category.
► establishing plaintiff had no significant history
of a pre-existing psychological condition or
emotional disorder.
► any psychological problems and symptoms from which
the plaintiff had before the subject accident were
different than the post-accident symptoms.
► that despite psychological problems before the
accident, the plaintiff was highly functional and
that there is a discrete difference in the
plaintiff’s pre- versus post-accident functioning.
► that even if the defense can establish that the
plaintiff had a long standing personality disorder
or mental disorder before the subject trauma, it
is entirely possible to have a personality
disorder or a mental disorder and simultaneously
suffer from a traumatic brain injury. In fact,
there is clinical evidence to indicate that people
who suffer from preexisting mental disorders are
more vulnerable to developing traumatic brain
injuries after head trauma and they are far more
likely to suffer significant residual effects from
the injury than people with no preexisting
psychological conditions.
► that there was an abrupt personality change in the
plaintiff after the subject trauma. This is
consistent with traumatic brain injury personality
changes and inconsistent with changes due to
psychiatric disorders which are lifelong or occur
more gradually.
► patients with traumatic brain injuries have rapid
fluctuation in symptoms where most psychiatric
patients, particularly those with bipolar
disorders, have illnesses that do not fluctuate
rapidly.
► many psychiatric illnesses can be treated
pharmacologically whereas traumatic brain injury
cannot.
L. Understanding How Traumatic Brain Injury Is Diagnosed
in a Hospital Emergency Room Setting.
i. Controversies in the semantics and criteria for
brain injury diagnosis.
As mentioned earlier, there is some controversy in the
literature and amongst professionals on what criteria is
necessary to diagnose a traumatic brain injury and even the name
of the diagnosis that should be attached in cases in which
patients suffer a transient or permanent injury to their brain as
a result of head trauma.
The controversy is increased in cases where the evidence
indicates that there are relatively minor forces on the brain in
the accident and/or the patient had few or no objective (i.e.,
observable) signs of a brain injury immediately after an
accident.
ii. Don’t get lost in the semantics.
It is critical that a plaintiff’s attorney not get lost in
the confusion over brain injury diagnosis. One must look below
the surface of the diagnostic label to determine whether or not
there is an actual injury to the tissues of the brain. Further,
a plaintiff’s attorney must understand that there can be a very
significant brain injury even if there is a negative MRI or CAT
scan.
iii.Look to important diagnostic criteria.
As mentioned in section A (4) above, many clinicians will
diagnose a traumatic brain injury when impact to the head results
in any of the following:
► loss of consciousness.
► loss of memory as to events surrounding the
accident.
► neurological deficits that may or may not be
transient.
What follows is a brief description of each of these
elements that may go into the diagnosis of a traumatic brain
injury.
iv. Assessment of consciousness levels.
The Glasgow Coma Scale is commonly used to evaluate the
level of consciousness of a person post trauma. The examiner,
utilizing the Glasgow Coma Scale, evaluates the patient’s
response in the areas of:
► eye opening.
► best motor response.
► verbal response (talking).
Each one of these areas of functioning is assessed on a
scale with high functioning receiving the highest score and low
functioning receiving the lowest score. Thus, the lower the
point scores on the Glascow Coma Scale, the more severe will be
the assessment of traumatic brain injury (however, note that
many, many studies have shown that the ultimate residual, i.e.,
permanent effect of a brain injury has very little to do with the
initial diagnosis of severe, moderate or mild traumatic brain
injury).
The Glascow Coma test assessment:
a. Eye opening.
If the patient opens his or her eyes, without request, the
patient receives a score of 4.
If the patient opens his or her eyes when asked in a loud
voice, the score is 3.
If the patient opens his or her eyes upon pressure, the
score is 2.
If the patient does not open his or her eyes, the score is
1.
b. Best motor response.
If a patient follows simple commands, her or she is assigned
a score of 6.
If a patient pulls the examiner’s hand upon pressure, the
assigned score is 5.
If a patient pulls a part of his or her own body away upon
pressure, the assigned score is 4.
If a patient flexes his or her body inappropriately to pain,
the score is 3.
If a patient’s body becomes rigid in an extended position
upon pressure, the score is 2.
If the patient has no motor response to pressure, the score
is 1.
c. Verbal response (talking).
If the patient can carry on a conversation correctly and
tells the examiner where the patient is, who he or she is and the
month and year, the assigned score is 5.
If the patient seems confused or disoriented, the score
is 4.
If the patient talks so the examiner can understand but
makes no sense, the assigned score is 3.
If the patient makes sounds that the examiner cannot
understand, the score is 2.
If the patient makes no noise, the score is 1.
v. Rating severity of traumatic brain injury based on
the Glasgow Coma Scale score.
Generally speaking, severe traumatic brain injury is
diagnosed with a Glasgow Coma Score of 8 or less.
Moderate traumatic brain injury patients score between 9 and
12, while patients with minor traumatic brain injury range from a
score 13 to 15.
It is important to note that the Glascow Coma Score was
intended to assess patients who almost, by definition, had
undergone severe trauma.
The examinations by which the Glascow Coma Scale was
developed involved examinations administered at
post-resuscitation in emergency rooms.
vi. Difficulty in assessing loss of consciousness.
The Glasgow Coma Scale evaluation is only useful when a
patient is still unconscious or is in an altered state of
consciousness at the time of the emergency room evaluation, which
may be an hour or more after the trauma.
A person with a brief loss of consciousness or brief period
of altered consciousness still qualifies for the diagnosis of
mild traumatic brain injury; however, the assessment of brief
periods of loss of consciousness (or even sometimes more
significant periods) can be difficult to make.
The biggest problem in determining unwitnessed periods of
unconsciousness is that how is the victim supposed to know that
they were unconscious or the length of time that they were
unconscious?
Be careful before relying on a patient’s report of no loss
of consciousness in an emergency room record or even a
paramedic’s record. Unless a person was with the plaintiff from
the moment of the trauma and actually makes the report of no
unconsciousness to the paramedics or emergency room staff, the
report of no unconsciousness may be unreliable.
Further, even a paramedic’s note of loss of consciousness
does not necessarily rule out that the patient had lost
consciousness before the paramedic arrived.
And, on top of all this, if the patient suffers from
amnesia, they might not be able to remember a period of
unconsciousness.
vii.Loss of memory as to events surrounding the
accident.
In assessing memory disturbances, it is important to attempt
to differentiate retrograde amnesia (i.e., loss of memory of
events post-accident) from length of coma, post-traumatic amnesia
and anterograde (i.e., loss of memory before the accident) memory
difficulties.
The duration of post traumatic amnesia is an important
indication of the severity of traumatic brain injury.
There are tests such as the Galveston Orientation and
Amnesia Test that help the clinician measure amnesia.
viii. Neurological deficits following traumatic
brain injury.
A neurological trauma to the brain can be:
► focal (i.e., local) or multi-focal (i.e., damaging
various specific regions within the brain).
► diffuse (i.e., resulting in a generalized
reduction in cerebral functioning).
► any combination of the two.
Neurological symptoms following an accident can include:
► sensory loss (e.g., double vision, loss of smell,
reduction in hearing, motor control dysfunction
such as paralysis or motor planning problems).
►
neurological damage which effects the cognitive,emotional and social functioning of the
individual.
Neurological damage can effect the brain’s:
► anatomy (e.g., lesions, bleeds).
► physiology (such as seizure disorders).
► chemistry (hormonal imbalance).
Note that almost all of the signs and symptoms discussed
above can only be picked upon an examinations immediately post
trauma. The diagnosis, as will be seen later in this article
becomes even more complex when the plaintiff is not evaluated
immediately after the trauma.
ix. Diagnosis of brain injury is complex.
As can be seen above, diagnosis of traumatic brain injury
can be multifactorial and quite complex.
M. The Controversy in Diagnosis: How to Wade Through it.
i. Does the diagnosis of closed head injury connotate
brain damage.
When “closed head injury” was the term used to describe and
diagnose injuries to the head, there was still controversy as to
whether the plaintiff was in fact “brain damaged” when that
diagnosis was made. Many experts stated and believed that to
make the diagnosis, there had to be evidence of damage to the
brain while other experts stated and believed that the diagnosis
of closed head injury only meant that there was some type of blow
to the head by force, i.e., everyone agreed that an “open had
injury” meant that the tissues of the brain were actually invaded
by an outside force, like a bullet, while a “closed head injury”
meant that the tissues surround the brain were intact, i.e.,
“closed.” But this didn’t answer the question of whether or not
the brain was damaged in a closed head injury case.
ii. Move toward the diagnosis of traumatic brain
injury.
Eventually, to help clarify this issue, many specialists in
the brain injury field began using a diagnosis of traumatic brain
injury and rating it as mild, moderate or severe.
Unfortunately, this preferable diagnosis has become more
popular with neuropsychologists (a psychologist with special
expertise in diagnosing and treating brain injury) and
physiatrists (medical doctors who specialize in the treatment and
rehabilitation of usually brain injured and spinal cord injured
people) than it has with emergency room physicians, most
neurologists and psychiatrists who are more comfortable with the
term “closed head injury,” “concussion” or “post concussive
syndrome.” Those diagnosis still leave unanswered the question
of whether the plaintiff has an injury to the brain.
iii.How the different diagnosis play out in legal
cases.
In legal cases, the plaintiff will generally retain experts
who will use the diagnosis of “traumatic brain injury,” if there
is evidence to support that diagnosis, while experts for the
defense, if they concede any head injury at all, will call it a
mild closed head injury, concussion or post concussive syndrome.
iv. Diagnostic manual utilized by mental health
professionals confuses matters even more.
a. Post concussional disorder -- a provisional
diagnosis.
Unfortunately, the Diagnostic and Statistical Manual of
Mental Disorders, which is now in it fourth text revision (DSM-IV-TR), a manual used by all psychologists, psychiatrists and, to
some extent, neuropsychologists and neuropsychiatrists, has added
to the confusion by adding yet another provisional (i.e., not
formally accepted) diagnosis -- “post concussional disorder.”
b. Diagnosis of post concussional disorder does
not answer the question of whether or not a
patient is suffering a traumatic brain
injury.
The essential features that must be present according to the
DSM-IV-TR to diagnose a “post concussional disorder” differ in
some significant ways from the features that physiatrists,
psychiatrists,, neuropsychologists and some neurologists have
been using to diagnose a “traumatic brain injury.” As will be
explained below, the post concussional disorder does nothing to
help one understand whether there is or is not brain damage.
c. Criteria for post concussional disorder are
harder for a patient to meet.
Further, the criteria for a patient to be diagnosed with a
post concussional disorder are harder for a plaintiff to meet
than the usual criteria used for a traumatic brain injury.
d. The criteria for a patient to be diagnosed
with a post concussional disorder.
The authors of the DSM-IV all concede that further
diagnostic criteria are necessary but for now, the criteria are
as follows:
► a history of head trauma that has caused
significant cerebral concussion.
In order to diagnose a concussion under this criteria, there
must be loss of consciousness, post traumatic amnesia and less
commonly, post traumatic onset of seizures.
► evidence of neuropsychological testing or
quantified cognitive assessment of difficulty in
attention (concentrating, shifting focus of
attention, performing simultaneous cognitive
tasks) or memory (learning or recalling
information).
► three or more of the following must occur shortly
after the trauma and last at least three months:
1. becoming easily fatigued.
2. disordered sleep.
3. headaches.
4. vertigo or dizziness.
5. irritability or aggression on little or no
provocation.
6. anxiety, depression or affective lability.
7. changes in personality (e.g., social or
sexual inappropriateness).
8. apathy or lack of spontaneity.
► the symptoms above had an onset following head
trauma or else represent a substantial worsening
of pre-existing symptoms.
► the disturbance causes significant impairment in
social or occupational functioning and represents
a significant decline from a previous level of
functioning.
► the symptoms are inconsistent with dementia.
e. New burdens on plaintiffs.
For plaintiff in personal injury cases, the most critical
new burden placed upon them in order to establish a “post
concussional disorder” is the existence of a “significant
cerebral concussion with a loss of consciousness and post
traumatic amnesia.”
As mentioned in the “Traumatic Brain Injury” section of this
web site, a traumatic brain injury can be diagnosed without a
loss of consciousness or post traumatic amnesia. Under the
traumatic brain injury diagnosis, its enough if there is an
alteration in consciousness, in which the patient loses time
after an accident or suffers from other neurological deficits
such as sensory loss, loss of motor control, cognitive, emotional
and social deficits.
f. The key for a plaintiff’s attorney is to
focus on the suffering and not the diagnosis.
A plaintiff attorney attempting to guide a case through this
diagnostic morass should remember that the key to the case is not
what particular diagnosis should be applied to the plaintiff but
rather how has the accident effected the plaintiff’s life in
terms of ability to function in all spheres of life and live an
existence relatively free of pain.
N.
Mild Traumatic Brain Injury (The Miserable Minority).
i. Most people with mild traumatic brain injuries are
not seen in hospitals immediately after an
accident which makes their case more difficult to
prove.
Studies indicate that 300,000 individuals are hospitalized
each year with traumatic brain injuries. However, out of these
300,000 individuals, only 18% are diagnosed with mild traumatic
brain injury. That means that 82% of mild traumatic brain injury
victims are never seen in a hospital and given the benefit of an
evaluation by an emergency room physician trained in diagnosing
traumatic brain injury.
Almost all of these people have legitimate traumatic brain
injuries and the great majority of them are not in any type of
litigation. However, when such people do enter into a
litigation, their traumatic brain injury cases will be more
difficult to prove because of the lack of immediate post-trauma
documentation. This will be true despite the fact that they
develop symptomatology consistent with traumatic brain injury
immediately after the accident and neurological testing later
confirms the diagnosis.
ii. Mild traumatic brain injury cases are always
challenging.
Whether or not a plaintiff was seen in a hospital
immediately after a trauma, mild traumatic brain injury cases
remain very challenging.
iii.The “mild” in mild traumatic brain injury refers
to the extent of the acute “trauma” to the brain,
not the extent of the consequences of the injury.
The most significant thing to remember about “mild”
traumatic brain injury is that the diagnosis of “mild” applies
only to patients’ ability to open their eyes, have motor response
and verbal response several hours after a trauma and has nothing
to do with the loss of function and increase of symptoms that a
plaintiff will endure months, years and perhaps a lifetime
following the trauma.
Thus, someone can have a “mild” traumatic brain injury with
a “severe” result.
iv. The “Miserable Minority.”
a. Who are the “Miserable Minority?”
The term “Miserable Minority” has been suggested to define
those mild traumatic brain injury patients whose recovery from a
traumatic brain injury differs from what is typically expected.
b. The Miserable Minority exists with or without
litigation and with or without positive
radiographic tests.
Most people with mild traumatic brain injuries enjoy a very
rapid recovery whether or not they are in litigation. Studies in
fact have shown that patients in litigation are no more likely to
have long standing residuals from a mild traumatic brain injury
than patients not in litigation.
Further, cadaver studies have indicated that people who have
been diagnosed with mild traumatic brain injuries and have
negative MRIs and CAT scans were found to have diffuse axanial
damage to the brain consistent with a traumatic brain injury.
c. Litigants in the Miserable Minority
consistently have their credibility
questioned.
Unfortunately, when people in this “miserable minority” are
plaintiffs in legal cases, their credibility is constantly
questioned.
d. Make sure plaintiffs with mild traumatic
brain injuries treat with the appropriate
specialist.
From a treatment point of view, it is important that
plaintiffs with mild traumatic brain injuries are seen by
physiatrists, neuropsychologists or the rare neurologist who
understands that there are some unfortunate people who do not
recover from brain injuries as fast as others.
From a litigation point of view, it is critical that the
plaintiff attorney retain the correct experts. These would be
professionals who get stuck treating patients in the miserable
minority whether or not they are in litigation, most frequently
physiatrists, neuropsychologists and neuropsychiatrists. These
experts will be far more sensitive to the plight of the mild
traumatic brain injured individual.
O. What If the Plaintiff Is Partially at Fault?
A plaintiff can recover even if he or she is also at fault.
California is a comparative negligence State in which a negligent
plaintiff can recover damages; however, their monetary recovery
is reduced by the amount of their fault. For instance, if a
court or jury finds that a plaintiff’s damages should be valued
at a $1,000,000, but finds the plaintiff 25% at fault, his or her
recovery would be reduced by $250,000 to $750,000.
P. What Damages Are Recoverable in a Traumatic Brain
Injury Case?
In a traumatic brain injury case, plaintiff can recover for
past medical expenses, future predicted medical expenses, past
wage loss, future predicted wage loss and for past and future
pain and suffering.
The medical expenses are determined by the testimony of
physicians or other health care providers. Frequently, an
economist or an expert in the industry determines the amount of
future wage loss; however, no expert can testify to the value of
pain and suffering.
Pain and suffering is typically the most significant element
of a plaintiff’s damage and it includes emotional distress.
Contrary to popular belief, there is no formula for pain and
suffering awards and it varies greatly from case to case
depending upon the location of the case, the seriousness of the
injury and how well the case is presented.
Q. Claim for Loss of Consortium.
A plaintiff’s spouse can also sue and recover damages for
‘loss of consortium.” A spouse is allowed to recover damages for
the loss of society, comfort and care that result from the
injured spouse’s unavailability due to their injury and having to
watch the plaintiff suffer. In order to recover these damages, a
spouse must be named as a party to the lawsuit and must have been
married to the plaintiff at the time of the injury.
There are advantages and disadvantages to filing a loss of
consortium claim that should be discussed with an attorney before
filing.
R. Punitive Damages.
Under California law, if a plaintiff can prove that the
conduct of the wrongdoer was fraudulent, malicious or despicable,
he or she is entitled to recover punitive damages which are
intended to punish the wrongdoer and provide an example for the
rest of society. The focus of this type of case is generally on
the wrongdoing of the defendant as opposed to the injury to the
plaintiff. The amount of punitive damage will vary depending
upon the heinousness of the defendant’s misconduct and its
economic status. The law recognizes that large companies have to
pay more money in punitive damages to be adequately punished than
small companies or individuals. In motor vehicle cases, punitive
damages are most frequently awarded against drunk drivers.
S. How Soon Must a Traumatic Brain Injury Case Be Brought
After an Accident?
Although there are a few exceptions, generally speaking in
California a case for serious personal injury must be brought
within one year of the date of the accident/incident. In rare
cases, that time period is extended to one year from the date of
the discovery of a wrongdoing and/or an injury. However, be
careful. If the case is against a public entity, the claim must
be brought within six months of the date of the accident. Except
in medical malpractice cases and cases against public entities,
minors have until their 19th birthday to bring a case.
T. Considerations in Evaluating Cases for Settlement.
i. Many different factors are taken into
consideration when evaluating settlements.
There are many, many factors which are utilized when
evaluating a case for settlement. The perception that many of
the public have that a case settles for three times the medical
bills and wage loss cannot be further from accurate. There are
cases that settle for millions of dollars in which there are no
medical bills or wage loss and there are cases that settle for a
few thousand dollars in which there are hundreds of thousands of
dollars of medical bills and wage loss. Following are some of
the factors that are relevant to evaluating the case for
settlement purposes:
ii. Liability.
The clarity of liability (i.e., fault) in the case is a
critical settlement factor.
In a case in which liability is unclear or the plaintiff has
a substantial chance of losing, the settlement value of the case
has to be reduced significantly to factor in the plaintiff’s
chances of losing.
Theoretically, if the value of an injury claim is $100,000,
but plaintiff only has a 50/50 chance of winning, a $50,000
settlement may be appropriate. However, plaintiffs must always
realize that cases against large defendants or in cases in which
the defendant is insured, that the plaintiff has a lot more to
lose than the defendant. In the example above, if the insurance
company turns down a $50,000 demand and the plaintiff wins
$100,000, payment of an additional $50,000 will mean very, very
little to a large insurance company or corporation. On the other
hand, if the plaintiff turns down the insurance company’s $50,000
offer and wins nothing at trial, it could create a devastating
financial blow in which the plaintiff is unable to pay for his or
her bills.
iii.Comparative fault of the plaintiff.
If a plaintiff is found to be partially at fault for causing
his or her own injury, then their potential jury award is reduced
on the basis of their percentage of fault. In other words, if a
case were to go to trial, and plaintiff were to receive a
$100,000 verdict, but was found to be 25% at fault, the
plaintiff’s verdict would be reduced to $75,000. Thus, when
settling a case, plaintiff should reduce his or her expectations
of a settlement by the likely finding of percentage of fault that
would occur if a case were to be tried.
iv. Likely jury verdict value of the case.
In cases in which insurance policy limits are not an issue,
most good attorneys attempt to settle the case based upon what a
jury would be likely to award if the case went to trial.
Determining what a jury will award in a given case is more
of an art than science; however, reasonable estimates can be made
based upon what jurors have awarded in similar cases in similar
venues (i.e., locations). Most verdicts are reported in “jury
sheets” that lawyers read and utilize when attempting to assess
the value of any particular case.
v. Aggravated liability.
In cases in which a jury is likely to get angry at a
defendant for misconduct that was something more than negligent,
it is known that jurors are likely to “spike” their verdict and
award more money for a plaintiff’s injury than they would if a
defendant’s misconduct was merely negligent.
Aggravated liability situations, such as a defendant who was
found to be driving drunk or a defendant who intentionally hurts
a plaintiff will increase the risk to the defendant of a large
jury award and this should be taken into consideration in
settlement.
vi. Punitive damage exposure.
If the defendant’s misconduct is so bad that there is a risk
for punitive damages, i.e., the jury awarding damages
specifically to punish the defendant, this should become a major
factor in settlement negotiations. A potential award of punitive
damages is complicated by the fact that under the law, the
insurance company is not allowed to pay an award for punitive
damages; however, normally, the defendant, through a personal
attorney, attempts to apply pressure on the insurance carrier to
pay more in settlement so that the defendant will not be exposed
to the punitive damage risk.
vii.The character and credibility of the parties.
A plaintiff’s case is worth more if he or she is likeable
and believable. It is known that jurors will award more money to
people that they like and believe than people whom they dislike
and don’t believe.
To a lesser extent, this is also true for defendants. A
likeable or believable defendant is likely to fare better in a
lawsuit than someone with the opposite traits.
viii. The extent of the injury.
Theoretically, the more serious an injury, the greater
should be the value of the plaintiff’s case.
ix. Objective evidence of injury.
Injuries that can be visualized or that are able to be
demonstrated by radiographic evidence such as x-rays, MRIs, CAT
scans or other scientific tests, will normally result in higher
settlements than injuries which depend upon the believability of
the plaintiff to prove.
There are many injuries which may have severe consequences
for the plaintiff which are not diagnosable by objective tests.
This can include severe back problems, headaches and pain
anywhere in the body. Experience has shown that jurors are
hesitant to award large damages in cases in which there is no
objective evidence of injury; thus, the settlement value of any
case is increased by objective evidence of injury and decreased
by the lack of it.
However, a credible plaintiff can sometimes overcome the
lack of objective evidence of an injury and this must also be
taken into consideration in the right case.
x. Past and future medical bills of the plaintiff.
As long as a plaintiff can establish that past medical
expenses and likely future medical expenses are reasonable and
related to their injuries, the bills will be an important
consideration in settlement.
However, the defense will generally claim some amount of
overtreatment and, thus, some portion of the medical bills should
be excluded from settlement consideration. Further, the defense
will argue that plaintiff will be unlikely to need or have the
claimed future treatment and/or the future treatment would not be
related to the subject incident.
xi. Past wage loss and future wage loss.
Wage loss is another important consideration in evaluating
a claim as long as plaintiff can establish that he or she was
reasonably off work or will be reasonably off work due to the
subject incident. The defense will likely take the position that
the amount of the wage loss should be discounted because
plaintiff should have been back to work sooner and, in the case
of future wage loss, the defense will claim that plaintiff could
be doing some type of work which would pay them as much or almost
as much as the work they were doing before the incident.
Also, for plaintiffs who are self-employed or do not have a
strong consistent earning history before the accident/incident,
it can become very difficult to establish a wage loss claim.
xii.Is the injury permanent.
In cases in which plaintiff has a permanent injury and some
objective evidence of that injury, there will likely be a higher
settlement value because the case will have more jury appeal.
xiii. Venue (where the claim will be tried).
It is beyond question that cases tried in certain locations,
particularly urban locations, result in much higher verdicts than
cases tried in more rural counties. This is a factor that must
be taken into consideration in settlement.
xiv.Policy limits and defendant’s assets.
No matter how severe the injury, the plaintiff’s ability to
recover damages against defendant will be limited by either the
defendant’s policy limits or the personal assets of the
defendant.
However, in cases involving motor vehicles, the plaintiff
may have his or her own uninsured or underinsured motorist
insurance which would provide additional coverage for the
plaintiff’s injury and allow the plaintiff to receive further
compensation in a settlement with their own insurance carrier.
xv. Target defendants.
Even though jurors are not supposed to consider the wealth
of a defendant or whether or not the defendant is a corporation
in their verdict, they are far more likely to make larger awards
against large companies than they are people who they perceive to
be middle class or poor. So this becomes another important
settlement consideration.
xvi.Reputation and ability of attorneys.
The claims representative or defense attorney will report to
the insurance carrier or defendant the ability of the plaintiff’s
attorney and the likelihood that the attorney will try a case and
try it well.
In situations in which the defense believes that the
plaintiff’s attorney will not be willing to take the case to
trial, there is little incentive to offer a significant amount of
money in settlement.
On the other hand, if the defense believes that a
plaintiff’s attorney will not only go to trial, but will receive
an optimum verdict, the defense’s risk is increased and thus the
settlement value of the case is increased.
By the same token, plaintiffs must also take into
consideration the reputation and ability of the defense attorney.
If the case is against a good defense attorney, plaintiff will
likely receive less money from the jury; thus, the settlement
value of the case, to some extent, is decreased.
xvii. Expense of litigation.
The expense of litigation should also be considered in
settlement. There are some cases which, if worked up properly,
could result in the expenses actually being higher or almost the
entire amount of an eventual settlement or verdict.
Some insurance companies and corporations are cost conscious
and will take into consideration the expense of proceeding in the
case versus early settlement.
However, just because a case may cost the defense $200,000
to litigate does not mean that in a case they otherwise evaluate
as being worth $25,000, they are going to offer the plaintiff
$200,000 in settlement.
Rather, in the above example, it may cause the corporation
or insurance company to raise their offer five or ten thousand
dollars or to try to settle the case early for $25,000 before
expenses are actually incurred. Corporations and insurance
companies are loathe to make offers of settlements based on the
cost of defense because of a concern that they will be seen as an
easy target for plaintiffs.
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