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Legal and Medical Considerations in Traumatic Brain Injury Litigation

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
  • 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” impairment.

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 axonal 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 neuropsychologist 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 axonal 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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