Proving Damages From Brain Injury
by David A. Kulwicki
Brain injuries arise in a variety of contexts such as stroke, traumatic brain injury and intrapartum birth asphyxia. Proving damages from brain injury can be challenging when the injury victim has only subtle brain damage, has preexisting brain dysfunction or suffered no apparent economic losses from their brain injury. Often brain injury carries a hidden but substantial toll on the injured party that can be captured as economic losses by a knowledgeable and experienced injury lawyer. The trial attorneys at Mishkind Law Firm Co. L.P.A. have represented brain injured patients from birth injuries, motor vehicle collisions and surgical complications. Trust the experience and resources of our team of attorneys and medical experts to help you.
Proving Brain Injury
Proving brain injury starts with a thorough history of the events leading up to the brain injury. The onset of significant brain injury is typically marked by severe changes in brain function, such as loss of consciousness, loss of motor or sensory function or seizures. In the context of so-called "mild" traumatic brain injury, more subtle findings may take place, such as retrograde amnesia or dizziness, blurred vision or confusion. In the chaos of a traumatic event, like a car crash, the injured person may not even be aware of these changes. In this situation, careful attention must be paid to witnesses and incident reports to look for evidence of acute changes in brain function. When an accident victim calls to report concerns about changes in brain function, they should be advised to report these problems to a qualified medical provider immediately in order to document evidence of brain dysfunction as soon as possible after the accident.
While acute changes in brain function may seemingly resolve with time, and the brain-injury victim's overall neurological status improves, evidence of permanent brain injury may remain. The best evidence of persistent brain injury is found in modern imaging techniques. MRI and CT scans can show evidence of brain swelling ("edema"), bleeding ("hemorrhage") or even areas of dead brain tissue ("infarct"). Brain injuries from ischemic causes, i.e., hemorrhagic or embolic stroke, may evolve over time such that evidence on imaging becomes more noticeable with serial imaging over time. When brain injury is suspected, early imaging is important not only to document the injury bit also to assist with the treatment plan.
Some brain injuries, such as "shearing" that occurs with traumatic brain injury, is not visible on imaging, particularly imaging that is performed days or weeks after an accident. In this instance, neuropsychological testing may be necessary to establish changes in the patient's brain function. Neuropsychologists are trained to test for subtle changes in cognitive, emotional, executive, intellectual and emotional aspects of brain function that can occur with mild frontal lobe damage that does not appear on imaging.
Because most people have not undergone neuropsychological testing before an accident, it can be challenging to establish a reliable picture of the injured person before the injury. Neuropsychologists can compare the injured party's test results to composite averages in an effort to establish deficiencies, but it is critical to supplement the "before" picture with documentation of the brain injured person's cognitive performance prior to the injury. This documentation can be gleaned from school transcripts, prior medical records and work records. Testimony from neighbors, co-workers, friends and family is also critical in describing the before and after picture.
Besides neuropsychologists, other specialists that can assist in proving brain injury include primary care providers (who may have keen insight into the person's before and after picture), neurologists (who can ferret out subtle cognitive and motor changes), neuropsychiatrists (medical doctors who have an interest in neurocognitive deficits) and physiatrists (who are charged with caring for the "whole person" in the course of rehabilitating an injury victim). These medical experts may be important in establishing the medical cause of an injury and whether the injury is permanent in States that do not permit nonphysicians, such as neuropsychologists, to testify about such matters.
Permanency of the injury is an important aspect of damages. Typically, individuals who sustain a mild or moderate brain injury will experience significant improvement over the first year following the injury. During that period, improvement can be dramatic. Improvement tends to level out after that though smaller gains and adjustments are possible. Likewise, a patient can regress as they come to grips with permanent deficits and develop depression that compounds the brain injury. Experienced legal counsel will not seek an opinion on permanency until the patient has stabilized, so that the medical expert can accurately document the extent of the permanent disability.
A word of caution about medical and psychological experts: it is important to know whether the treating healthcare provider is sensitive to the subtleties of brain injury and prepared to advocate for the patient in a medical-legal context. Certain healthcare providers, even those who sell themselves as providing "World Class Care," become their patient's worst enemy in the litigation context when they are inexperienced or maintain institutional biases against injury victims. It is important for brain-injury victims to get experienced legal counsel involved early to avoid this pitfall
Damages From Brain Injury
With profound brain injury, where a patient becomes dependent on others for activities of daily living (ADLs), damages can be easily established by tallying up lost earnings and costs of future care. However, when a patient has mild or moderate deficits, proof of damages is more difficult. Likewise, with tort reform legislation that often caps noneconomic damages for pain, suffering and loss of usual activities, it is important to capture as much of the brain-injured individual's damages as economic losses that are not subject to caps under most States' laws.
One means of establishing damages is through a careful assessment by a vocational rehabilitation specialist. Vocational rehab specialists evaluate a person's employability based on medical records and independent testing. With any permanent physical or mental injury, workers are impacted in two ways: (1) injured persons are able to perform fewer jobs and are relatively less likely to advance in their jobs such that they have lower average earnings than healthy individuals; and (2) injured persons tend to have shorter work life expectancies. Given these realties of the working world, even someone with a subtle brain injury or one whose deficits are accommodated by an existing employer may show a significant loss of earning potential over their worklife.
Another area where future economic damages can be shown arises from remote long-term consequences of brain injury. Many individuals, who experience mild or moderate brain injury, once the intensive rehabilitation for the acute injury is over, incur few expenses for care associated with the brain injury .... for now. However, studies prove that individuals with brain injury are much more susceptible to early-onset dementia as they age. This phenomenon was first publicized by the famous boxer Mohammed Ali's premature deterioration. More recently, the phenomenon was brought to the public eye by a lawsuit filed by professional football players who developed early onset dementia. But these early changes in mentation are not limited to professional athletes nor do they require multiple concussions to surface.
The costs associated with early onset dementia are monumental. Brain injury victims with early onset dementia can expect to require expensive institutionalization in a specialized Alzheimer's unit or expensive at-home care. These future costs can be calculated by specialists called life care planners. Life care planners are doctors, nurses or rehabilitation counselors who are trained to determine the future costs of care associated with the long-term implications of various disabilities, including brain injury. Life care planners are typically certified by the International Academy of Life Care Planners or a similar organization which adopts methods for determining future costs of care.
Once a vocational assessment is performed to establish future loss of earning capacity and a life care assessment is performed to establish future costs of care, two additional steps should be considered. First, the vocational and life care assessments should be reviewed and adopted by the injured person's treating physician. The physician will validate the findings and also determine the injured person's life expectancy. Second, an economist should prepare a report based on the assessments that determines the present value of these economic losses. "Present value" is simply a calculation, using accepted economic practices, to establish what amount of money would be needed today to compensate for future lost earnings and costs of care that will be incurred for the duration of the injured person's life expectancy.
The economist can also calculate a third aspect of damages - loss of services. Most States' laws provide that family members affected by the injury victims' disability may bring a claim for their damages. This claim is often generically called a "loss of consortium" claim but includes losses occasioned by the injured person's inability to perform usual household chores and services. Thus, for example, a homeowner may need to replace an injured spouse with a housekeeper or lawn service. Economists are uniquely qualified to estimate the economic value of these lost services and provide a present value that captures this element of damage.
Malingering and Depression
While this article is focused on ways to determine damages for injury victims who sustain mild or moderate brain injuries, no discussion of the legal implications of brain injuries can be complete without discussing the twin defenses that rear their ugly heads in virtually every such case: malingering and depression. "Malingering" refers to the notion that an injury victim is exaggerating the nature and extent of their injuries. In the context of mild or moderate brain injury, where there is no black-and-white imaging or external signs of severe trauma to prove the brain injury, insurance companies and their lawyers ("the defense") are skilled at raising doubts about the severity of the brain damage.
Likewise, with rates of depression being diagnosed and treated in this country in ever-increasing numbers, many brain-injury victims will present with a past medical history of depression or similar psychological disorder. In addition, because of the psychosocial burdens placed on the brain injured from loss of employment, mounting medical expenses and loss of identity or independence, many such victims developed depression after a brain injury. The symptoms of depression often closely resemble the symptoms of brain injury.
The defense has numerous techniques for exploiting these concepts in an effort to avoid responsibility for the life-altering effects of brain injury. One tool is the defense medical examiner (misnamed the "independent medical examiner" by many courts). Make no mistake; there is nothing independent about this examiner. Defense medical examiners make large sums of money each year trying to minimize damages for insurance companies and their lawyers. One trial lawyer once joked that a particularly loathsome defense medical examiner stood ready to certify his deceased client as "fit and able to work." Defense medical examiners will frequently argue that a brain-injury victim is exaggerating their injury or that the symptoms he/she is experiencing are actually caused by depression that is unrelated to the incident that is the subject of the lawsuit.
Another tool for exploiting these arguments is surreptitious video surveillance. Insurers and their attorneys frequently hire private detectives to videotape injury victims engaging in seemingly normal activities. The video is then shown at trial to try to prove that the patient is malingering. The problem with surreptitious video is that when it shows the injury victim succumbing to their disability, it is either conveniently edited or discarded altogether. Every disabled person has their good days and their bad days, and most good people try to soldier on despite significant limitations. Surveillance video that shows a mere snapshot of "normal" activities or captures a rare smile is inherently misleading.
To combat these defenses, a lawyer experienced in representing brain-injury victims will do the following to give their client the best chance to prove the devastating consequences of mild or moderate brain injury:
- Take steps to document that brain injury in medical records as soon as possible if not done.
- Assist the client in finding a qualified rehabilitation program to assist them with their medical problems and advocate for them if needed.
- Interview family and friends to corroborate the injury.
- Obtain past medical, school and employment records to document prior function.
- Encourage clients to carefully follow all medical advice in order to document their efforts to get better.
- Locate resources for the clients to help with the psychosocial demands placed on them and their family by brain injury.
- Timely and aggressively pursue a meritorious claim, recognizing that compensation for the brain injury is critical to the process of adjusting to brain injury and being able to afford medical care and services that minimize the impact of the injury.
- Warn clients about the dangers of video surveillance.
- Prepare clients for defense medical exams and, where permitted, attend the exam.
Conclusion
Brain-injury cases present some of the most challenging evidentiary issues for injury lawyers, particularly when caused by a seemingly mild traumatic event. These clients require close contact and detailed counseling to assist them and their loved ones in adjusting to living with brain injury. The pitfalls and challenges of brain injury litigation are many and require the early involvement of skilled and experienced legal counsel. The lawyer handling such cases must be more than a litigator, as the injury victim encounters everyday difficulties that not even their doctor or family members can help with. Introducing brain-injury victims to resources that will allow them and their families to cope and, ultimately, obtaining compensation for them is one of the highest callings a lawyer can be privileged to perform.
