Identifying and proving mild traumatic brain injury – when should you make a TBI claim?
“Well, I don’t remember all of what happened. I woke up in the ambulance. Things were kind of fuzzy after that.” The lawyer was talking to a potential client. The emergency room had given the injured person a concussion recovery handout. The individual doubted there were any long-term consequences. But during a break in the meeting, the individual’s significant other approached the lawyer. “Pat’s focus hasn’t been the same since the crash…”
Mild traumatic brain injuries are underdiagnosed. They hide in the margins. The patient “denies loss of consciousness,” in the same ambulance report that notes his repetitive questioning. After brain imaging comes back negative for major bleeds, everyone focuses on the orthopedics. The client treated for a concussion says everything is fine. But the person’s acquaintances note changes…
We’re at an interesting point for concussions. What used to require tremendous jury education is now more commonly known. You can thank the NFL and the issues it is facing. People don’t belittle concussions – mild traumatic brain injuries – in quite the same way anymore. This makes the job of proving the injury just a little bit easier.
Treaters be treatin’
Confirming that a mild TBI is being addressed can be a problem. Moderate to severe TBIs get attention. But primary injuries like fracture repair and treatment can eclipse mild TBIs. Similarly, neurologists see some pretty awful injuries. A mild TBI can seem just that to a neurologist – mild. It is anything but mild to the individual experiencing it, though. Cloudy thinking, headaches, difficulty reading, some executive functioning deficits – these can make life quite difficult.
The majority of those who suffer mild TBIs tend to make good recoveries. They might have a few days to months of symptoms. But they can return to baseline with little damage. That’s the good news. The bad news is the future harm potential. Those who suffer one brain injury are at greater risk for increased consequences from a further event. What does that mean for valuation? Increased non-economic damages. Take a bicycle racer for example. That individual is faced with quitting the sport or facing the risk of exponentially greater injury should the rider crash in the future. Even those who make a “good recovery” are never the same.
Those who suffer longer-term consequences can find themselves in a difficult situation. This is true for personal life, work, and proof in the case. The personal life and work tend to suffer because people around the individual notice the difference. This is even more true with those working in fields that require high performance and there is greater potential for future harm/damages.
Most mild TBIs do not show up in imaging. If it does show up, great. It makes a huge difference. But don’t give up hope with a negative scan. You will likely need to retain a neuropsychologist, however. This will not be cheap. But if it makes the difference between a $20,000 settlement versus a $100,000 policy (or more), it is worth it. A neuropsychologist can explain how altered consciousness (being “stunned” instead of full loss of consciousness) can cause mild TBI. Or how people can deny loss of consciousness at the scene because they don’t remember being unconscious.
There are ways to help make the neuropsychologist’s (and the jury’s) job easier. Obtain the medical records and organize them into one chronologic series. An aside – that’s useful for all medical experts. They appreciate it and it saves expert time and cost. Identify and interview collateral witnesses that the neuropsychologist may want to speak with. These include family, friends, and colleagues. The interviews help you with the non-economic damage narrative. But they also help one evaluate whether a provable mild TBI exists. If no one notices any difference, to paraphrase Gertrude Stein, there’s probably no there there. But even when something is there, problems can exist.
The reluctant plaintiff
A very common issue is the reserved injured plaintiff. All injuries are personal, but brain injuries particularly so. And particularly when talking to employers (or in the case of a self-employed client, his or her employees). Have a risk/benefit discussion with the client about these issues early in the case. Some would rather skip significant exposure than open this door. Some defense counsel may attempt to turn this into scorched earth discovery with co-workers. A fully apprised client can then decide their own best path. That path may not include a brain injury claim.
Back to our lawyer. The lawyer spoke to several different people who knew the injured person. The comments were universal. Super sharp before. Still sharp now but, well, different. A little slower. The lawyer worked with a neuropsychologist and a vocational rehabilitation expert to illustrate the impact at work. While the individual had not lost any income, the individual’s future growth opportunities were now limited, and the loss of earning capacity was significant. Far more significant than the policy limits in the case…
Miles B. Cooper is a partner at Emison Cooper & Cooper LLP. He represents people with personal injury and wrongful death cases. In addition to litigating his own cases, he associates in as trial counsel and consults on trial matters. He has served as lead counsel, co-counsel, second seat, and schlepper over his career, and is a member of the American Board of Trial Advocates. Cooper’s interests beyond litigation include trial presentation technologies and bicycling (although not at the same time). This column celebrates ten years of his delivering Back Story content every month (but one) and is his 120th column.
2018 by the author.
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