As an Ohio brain injury lawyer, I routinely review medical journals for information about traumatic brain injury (TBI). Two recent medical journal articles address the damages caused by brain injury. To an attorney, the term “damages” refers to the harms and losses caused by personal injury or wrongful death. Damages include past harms and losses as well as future harms and losses. Damages can be economic, like medical expenses and lost wages and benefits, or non-economic, like pain, suffering, loss of usual activities and loss of enjoyment of life.
Capturing the full impact of a TBI is extremely challenging for a number of reasons. First, not all TBIs are alike. They can range from mild to severe, and they can affect different areas of the brain with dramatically different effects on the injured person. For example, a mild brain injury can have a dramatic impact on a pilot if the damage is to the part of the brain that controls visual-spatial functions. Likewise, an injury to the taste and smell centers of the brain may not affect a pilot’s ability to earn a living, but it will have a devastating impact on a brewmaster or sommelier. As you can see, the impact of TBI is highly individualized.
Another challenge arises from the lack of objective testing to prove many facets of brain injury. Often, brain damage is microscopic and can only be shown on autopsy. We see this with athletes who develop chronic traumatic encephalopathy (CTE) from sports-related concussions. These individuals can have profound, progressively-degenerative brain damage despite having a normal MRI. When injuries are subjective, the defense will try to paint the plaintiff as a malingerer who exaggerates his/her deficits. Likewise, skeptical healthcare providers may misdiagnose or disregard symptoms of brain injury. I frequently see clients who have a history of head trauma and symptoms of brain injury being diagnoses with depression or PTSD when objective testing is normal. This is problematic because depression and PTSD can be treatable while organic brain damage is not.
Adding to the difficulty in proving TBI claims is the fact that we know that the disease is progressive, and tends to get worse over time. This progression further complicates natural degeneration of a healthy human brain that takes place over time as part of the aging process. A recent article will help to capture the effects of TBI on an aging brain. The article reports on a comprehensive Swedish study which shows that individuals with brain injury have an increased risk of developing dementia later in life. The association holds up even when the brain injury occurred greater than 30 years before the onset of dementia. The risk of dementia is greatest in individuals with more severe brain injuries.
This study is significant in that it shows the need to include costs associated with dementia in calculating future medical expenses. In a lawsuit, the costs of future care are calculated as part of a “life care plan,” which includes not only future medical costs but also accommodations required for the disabled such as access-friendly home modifications and transportation. Dementia care is expensive, since it requires specialized facilities and caregivers. This must be reflected in the life care plan.
A second study, published this month in the Journal of the American Medical Association (JAMA), found a link between TBI and suicide. This is not surprising, as reports of athletes who are suffering the effects of TBI/CTE and commit suicide have become commonplace. So too, the suicide rate among war veterans is epidemic. As it turns out, many of these vets actually have TBI caused by war zone explosions, not PTSD with which they are frequently misdiagnosed.
Again, this article is important because it opens a new area of potential damages. If an individual suffering from brain injury actually commits suicide, a claim for wrongful death can be brought on behalf of surviving family members. Under Ohio law, wrongful death claims are treated differently from personal injury claims. These claims are governed by the Ohio Wrongful Death Statute which sets forth the damages that beneficiaries can sue for. The statute also sets forth a two-year statute of limitations which begins to run from the date of the decedent’s death.
TBI cases can be challenging, given the difficulty in proving the injury. Further, in light of the huge damages that can result, these cases are aggressively defended. As one neurosurgeon informed me, the brain is an unforgiving organ. Once it is damaged, by brain injury or stroke, the harm is permanent. Therefore, when handling these cases, it is paramount to capture all of the future harms and losses so that full and proper compensation can be obtained for deserving clients.
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