Head injuries bring more than 400,000 people to hospitals every year. Approximately three-quarters are diagnosed as having suffered a mild to moderate injury - injuries that can be subtle, persistent, and potentially long term.
Demographically, three quarters of the survivors are males, one half of whom are ages 15 to 34. They are the "go for the gusto," high speed, consumers of alcohol who are going to live forever and who dominate ERs Friday night through Sunday morning and the Monday morning arraignment calendars. From a public health perspective, alcohol abuse training, roll bars, air bags, and helmet protection for motorcyclists, bicyclists, skateboarders, and skiers are top priorities because the number of TBI survivors is not expected to significantly diminish over the next ten years.
The most challenging aspect of representing TBI survivors is that many times they suffer minimal outward physical manifestations of injury. These patients are told they will recover. As a result many do not receive appropriate care and treatment for the disabilities that follow, including physical, cognitive, psychological, and social impairments. Maximizing damages for these plaintiffs requires a thorough understanding of traumatic brain injury. Since the medical community generally speaking is not well trained in neurobehavior, physicians often fail to diagnose the short-term and potentially chronic aspects of closed head injuries in the regular office visit. Outside of the regional head injury treatment centers, neurologists on a day-to-day basis do not treat trauma victims. Neuro-surgeons see only the most severe cases of acute disorders and coma.
There is widespread misunderstanding concerning traumatic brain injury even in otherwise knowledgeable medical circles. Anecdotes do not replace scientific evidence, bur recently a well regarded neurologist, an assistant clinical professor of medicine at Stanford University and a respected scientist and author, concluded that a moderate head injury in a bicycle/truck collision, in which the plaintiff's bicycle helmet was fractured, was not responsible for chronic fatigue six months post-injury. Even after he reviewed well documented medical references describing fatigue as the most common complaint in two-thirds of all minimal to moderate head injury patients, this physician still opined that his patient s fatigue was secondary to depression and unrelated to injury. Such a misinformed view by a treating physician severely impacted the plaintiff s ability to achieve fair compensation in a strongly contested case of liability.
People with concussions heal over time and that many of the emotional conditions reported can be equally associated with psychological conditions which occur in the absence of physical trauma. In this setting, reassurance goes a long way to promote healing and well-being. Unfortunately, reassurance should always follow a realistic assessment and often there is not enough time, or insufficient skill, to conduct a proper medical evaluation.
To maximize damages for this plaintiff requires a grounding in the medicine of head injury and an understanding the full range of traumatic brain injury is a sine qua non for plaintiffs who have suffered physical injury and in evaluating plaintiffs insulted by contaminated drugs, toxic exposures, and silicone gel breast implant reactions.
Keep in mind that, unlike common orthopedic injuries, there is no bright line to identify brain injuries and even if there were a line it would not be a straight line. The range and severity of disabilities in one patient will vary dramatically. Some functions may be severely disabled and other skills intact. That is why learning the medicine and being able to identify when you need to seek a neuro-psychological consultation is important. As a trial lawyer you must be alert to the full range of TBI symptoms.
Attorneys are often the first professionals who take the time to listen carefully to the patient, who critically evaluate any lingering condition, or carefully observe symptoms. Families members accompanying the plaintiff are excellent resources who can describe changes in personality, skills and the subtle symptoms and complaints many times dismissed as the complaints of a hypochondriac. During the several hours you devote to meeting with a new client, conduct a review of the common symptoms of TBI that are discussed below and do not hesitate to have the client referred for a neuro-psychological evaluation if you suspect there may be brain injury. The earlier you make the referral the better because that initial evaluation may be the first objective evaluation for the purpose of establishing a baseline for later comparison.
The human brain consists of billions of microscopic fibers, suspended in cerebrospinal fluid. While the exterior skull is smooth, the inner surface contains ribbing and pronounced bony structures. Impact with these inner surfaces of the skull causes tearing and bruising that results in brain damage.
Injuries occur when the momentum of the brain impacts against a skull that has been decelerated. This often results in swelling and resulting compression that can have long term effects. Nerve fibers are sheared in rotational injuries that can leave the brain stem permanently altered. Respiratory obstructions and compromised lung function that cause a total cessation of oxygenation result in anoxic injuries. Medically these injuries are distinct from hypoxic injuries caused by reduced oxygen.
The severely handicapped TBI survivor presents the easier case for maximizing damages because the extent of the injury is not doubted. It is the patient with mild injuries with a complete medical recovery from physical symptoms that presents a major challenge to the skill of treating physicians, rehabilitation professionals, and to the legal team called upon to prove and explain the long term effect of these injuries to judges and juries.
Post-concussion syndrome presents with headaches, spasticity, dizziness, reduced coordination, sensory dysfunction, memory losses, problems in concentrating, difficulty in perceiving, sequencing, judgment and communication, fatigue, loss of empathy, depression, anxiety, sexual dysfunction, depressed motivation, emotional volatility, slowed thinking and impaired writing and reading skill. Patients complain of trouble organizing thoughts, inability to express themselves, difficulty selecting and recalling words, short-temper, learning new information and retaining it, getting lost, confusion and agitation. These are the same symptoms and complaints observed and experienced by survivors of severe injury. Studying and understanding the treatment of the severely injured will assist in identifying the needs of the person who has suffered mild head injury.
To appreciate the extent of a precipitating injury, it is helpful to understand two commonly used medical scales found in every medical chart involving TBI.
The first is the Glasgow Coma Scale which rates a patient s ability to open his/her eyes, response to verbal commands and verbal responses. Each level of response indicates the degree of brain injury.
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