| TRAUMATIC
BRAIN INJURIES
Most
head injuries are minor. The
skull provides the brain with
considerable protection from
injury. Most head injuries are
mild, but a head injury may be a
serious problem when it occurs.
Accidents are the leading cause
of death or disability of men
under age 35, and over 70% of
accidents involve head injuries
and/or spinal cord injuries.
Common causes of head injury
include traffic accidents,
industrial/occupational
accidents, falls, physical
assault, and accidents in the
home.
Traumatic brain injury is a
serious and debilitating injury.
Persons with a severe brain
injury often have problems with
mental and physical functioning,
and may require on-going
supervision and assistance, as a
result of post concussion
syndrome. Even a person who has
suffered a head or brain injury,
with little or no documented
loss of consciousness, may have
permanent deficits which make it
impossible for them to return to
their previous lifestyle and
sphere of activities.
I.
INTRODUCTION
While
traumatic brain injury is
certainly nothing new, it has
only been in the past few years
that the professional
rehabilitation community has
been able to make significant
strides in the rehabilitation of
these victims. Based on studies,
it is likely that the annual
incidents of new head injuries
treated in hospitals is 400 per
100,000 patients treated. It is
now estimated (Center for
Disease Control) that there are
5.3 million children and adults
living with the consequences of
sustaining a traumatic brain
injury in the United States.
This represents about 2% of the
population.
An
estimated 2 million people
receive a traumatic brain injury
each year. An estimated 1
million are treated and released
from hospital emergency
departments and each year
230,000 Americans are
hospitalized as a result of
traumatic brain injury. Every
year 80,000 Americans experience
the onset of long-term
disability as a result of
sustaining traumatic brain
injury. More than 50,000 people
die each year as a result of
traumatic brain injury. Vehicle
accidents are the leading cause
of brain injury. Falls are the
second leading cause, and is the
leading cause of brain injury in
the elderly.
A.
General Types of Head Injuries
There are two major types of
head injuries -- (1) an open
head injury which is the result
of a penetrating wound; and (2)
the closed head injury. A
penetrating injury is best
exemplified by a gun shot wound,
in which the scalp is penetrated
and brain damage created where
the bullet actually moved
through brain tissue. A closed
head injury is one which usually
results from blunt trauma to the
head, typically in a motor
vehicle accident. Acceleration
and deceleration forces cause
the brain to rotate in the
skull. As a result of this,
maximum pressure is exerted on
the frontal and temporal regions
resulting in sheering and
extensive white matter damage.
In a closed head injury, brain
damage over a large area often
results in a great variety of
deficits including loss of
consciousness, problems in
attention and memory, and
alterations in social behavior.
Extensive research has confirmed
that it can be very difficult
for head injury victims to
return to normal family or
community life.
B.
Head Injury Effects
To appreciate the effects of
traumatic brain injury, one must
understand the individual and
the symptomatic disorders.
Problems can include attention
and arousal disorders,
communication and language
difficulties, loss of memory,
diminished ability to learn,
visual and auditory perception,
hampered information processing,
reasoning, judgment and problem
solving. It is not unusual for a
person who suffers a traumatic
brain injury to recover the
ability to communicate and
interact with other individuals,
thus disguising these deficits
to the casual observer. Only
when detailed studies are
completed and careful
observation has been made in the
home or rehabilitation center
are these disabling consequences
apparent.
C.
Treatment
Immediately post-accident,
the plaintiff is normally
treated in a hospital setting.
The head injury usually involves
treatment by a neurologist; when
organic damage is present it
will require treatment by a
neurosurgeon. At the outset, the
victim in addition to normal
medical treatment will normally
receive an evaluation, both
physical and psychological, by a
physiatrist (a physician
specializing in physical
medicine). Post-discharge
treatment is usually resumed in
a rehabilitation center where
the physiatrist supervises
treatment. Usually a number of
therapies will be involved in
the rehabilitation including a
physical therapist, an
occupational therapist, a visual
therapist, a specialist in
cognitive remediation. These
stays are lengthy, painful and
expensive.
D.
Choosing a Traumatic Brain
Injury Lawyer
It is at this stage that the
injured victim usually seeks the
help of counsel. The sad truth
is, however, that all lawyers
are not created equal. It is a
very sad fact of traumatic brain
injury life that many survivors
will not receive adequate
recompense for their injury
because their lawyer did not
have enough experience to know
how to analyze, prepare and
present a legitimate claim for
damages. Many times, the blame
is directly traceable to the
attorney who is not forthright
in the first place regarding
his/her lack of experience
handling cases involving
traumatic brain injury. Time
after time the inadequate result
rests with the attorney who did
not understand the seriousness
of the injury simply because of
its "invisible"
nature.
Unfortunately,
even where an injured victim has
overcome denial, and has further
overcome the social stigmas
associated with bringing a
lawsuit, s/he may nonetheless
experience further
"hurt" due to an
association with a lawyer having
no idea how to properly present
claims involving traumatic brain
injury. BEWARE: EDUCATION,
TRAINING AND EXPERIENCE VARIES
BETWEEN LAWYERS.
We
at Kirk Law Firm
are
committed to handling claims
of individuals sustaining
traumatic brain injury (TBI).
We are committed to spending
the time with you and your
family members to gain a deep
understanding for each and
every way the injury has
affected your life. We are
committed to spend the
necessary time in order you
understand your rights in the
progress of your case. Our
staff is committed to trying
to make your life easier, and
we will endeavor to put you in
contact with support groups
and treating doctors as your
case may require.
Given
the importance of your choice
of counsel, you should be
prepared to meaningfully
question prospective lawyers
in order to ascertain his or
her qualifications to handle
your case. For example, you
should determine how many TBI
cases that lawyer has been
involved in as principal
attorney during the last three
to five years. You should
determine what percentage of
the lawyer's practice is
devoted to cases involving TBI.
You should not hesitate to
inquire of the
settlements/verdicts obtained
by the lawyer on TBI cases.
(This should be done with a
recognition that every case is
different.)
You
want to make sure that the
lawyer is current. In this
regard, ask the lawyer how
many seminars or conferences
s/he has attended over the
past several years involving
TBI issues. Review that
lawyer's website, or ask the
lawyer to provide you with any
articles written over the past
three years involving any
aspect of TBI.
You
are about to embark on one of
the most important decisions
of your life, to wit: The
choice of the right lawyer to
represent you. You are armed
with a powerful tool, the
Contingency Fee Agreement.
This Agreement allows you to
retain experienced counsel
without having to pay hundreds
of dollars per hour up front.
Please, do not make your
decision cavalierly. Ensure
that you are comfortable with
the counsel of your choice.
Ensure that counsel has the
confidence and experience to
properly handle your case. The
path is a difficult one, and
the choice of counsel can make
all the difference in the
world.
In
almost every case, relatives
are overwhelmed when they
envision the costs of caring
for the injured victim,
particularly when it appears
to be a life-long disability.
This excites an awareness of
the immensity of financial
problems facing the victim
and/or his family over the
rest of his life expectancy.
As
lawyers, we must first address
the fact that a major head
injury case is going to call
for a set of special experts
in a narrow field of diagnosis
and treatment for this
devastating injury. The lawyer
at this point will be aware of
the involvement of a
neurologist and/or a
neurosurgeon, as well as a
physiatrist and other
specialists in therapeutic
medicines. At this juncture,
counsel is confronted with
medical terms and professional
disciplines which are
completely unfamiliar. By now
counsel has become acutely
aware that the injured
victim's one chance of useful
return to the community and
family depends upon the type
of treatment he gets. Most
often treatment is totally
dependent upon the amount of
money which is made available.
Obviously, the lawyer's
responsibility in these cases
is most serious and demands
preparation and organization
of the case in a thoughtful
and orderly manner, if the
victim is to obtain sufficient
compensation to allow him to
maximum rehabilitation.
II.
REHABILITATION TEAM
A.
The Case Manager
A case manager is required
in any serious brain injury
case. The case manager helps
to assure quality care and
cost effectiveness. He is an
absolute necessity for the
proper organization and
evaluation of the case. The
case manager is simply a
person who is a health
professional and who can
coordinate the activities of
the victim's rehabilitation.
He or she will also advise the
lawyer as to the treatments
and the various options opened
to the injured victim, act as
a communicator between the
lawyer, the client and the
health professional, and act
as an advocate for the injured
victim with respect to the
various health care providers.
A
case manager should be a
health care professional,
primarily either a
Rehabilitation Specialist, a
Physiatrist, or a nurse
trained in head trauma.
Experience has taught us that
a nurse who is well trained in
the area probably is easiest
to work with, as well as the
least expensive burden.
The
case manager carries out the
day-by-day details seeing that
the rehabilitation program
goes smoothly, seeing that the
funds from insurance companies
and state catastrophe funds
are properly allocated and on
time. It is easier for someone
in the medical profession than
for lawyers to make contact
with physicians or of the
other health care providers in
getting appointments,
opinions, in advising as to
progress, treatment and in
what improvements could be
made all along the way. The
case manager is constantly at
the lawyer's side. Perhaps
most importantly, the case
manager is instrumental in
helping the lawyer assemble
the damages component of the
victim's case and the team of
professionals that goes with
it.
B.
The Physiatrist
Obviously, the damage
assessment team will consist
in part of the medical doctors
who first examined and treated
the patient at the hospital
immediately following the
injury. Through these medical
experts, the physical injury
to the brain itself will be
described and diagnosed. Since
serious brain injury involves
lengthy periods of treatment
in order to bring about some
form of rehabilitation, a
physiatrist will already have
become a part of the team,
have been instrumental in
treating the victim through
the hospital and post-hospital
recovery period.
Specializing
in physical medicine, the
physiatrist will continue to
direct treatment to the
patient as he undergoes
various therapies. It is the
testimony of this expert, the
physiatrist, which will
demonstrate the basis from
which the other experts will
testify. Necessarily, he or
she will demonstrate, to a
reasonable degree of medical
certainty, what the
plaintiff's damages are and
what the extent of his
recovery is. It is noteworthy
that that communication
between counsel and the
physiatrist as well as the
therapists who carry out his
or her orders should be and
will be maintained by the case
manager, who is constantly
meeting with all parties,
constantly reporting to the
lawyer.
C.
The Neuropsychologist
The treatment of the brain
injured victim immediately
brings into play the opinions
and expertise of the
neurosurgeon or the
neurologist. In the case of a
serious brain injury it is
absolutely necessary that a
neuropsychologist be retained,
particularly where the victim
exhibits gross mannerisms or
other abnormalities which are
not apparent at first blush.
1.
Neuropsychology defined
There is a distinction
between a neuropsychologist
and a neurologist or
neurosurgeon. Neurologists and
neurosurgeons treat victims
based on signs of brain
dysfunction including changes
in motor and reflex function,
sensory deficits, alternation
and basic arousal and frank
aphasic disorders of speech
and language. A
neuropsychologist provides a
comprehensive evaluation of
the integrity of the higher
brain functions including
intellect, problem solving
capacity, capacity for memory
and new learning and other
relevant capabilities.
Neuropsychologists
are psychologists who have
received their training,
developed skills and
accumulated experience in the
study of these brain behavior
relationships.
Neuropsychology
uses a series of tests and
techniques which have been
developed over a period of
time to validly and reliably
differentiate persons without
brain damage from persons who
do have brain damage in one of
its many forms. Tests are so
refined that they determine
where in the brain such injury
has occurred, and monitor the
severity of the brain damage
while demonstrating what type
of lesion process caused the
brain injury. Information
which is gleaned from this
testing is utilized to
determine the structure of the
relative brain behavior
strength and the deficits
characterizing such brain
injured individual.
2.
Choosing a neuropsychologist
Often it falls to the
lawyer to make a determination
as to what neuropsychologist
should be retained. The lawyer
has to consider the estimation
of relative skill level of
various neuropsychologists,
and then is best practically
achieved by talking to other
lawyers with experience in the
area. Among the qualifications
of a neuropsychologist is the
quality of his or her prior
reports and testimony.
Certification or diplomate
status with awarding
organizations including the
American Board of Professional
Psychology, the American Board
of Clinical Neuropsychology
and the American Board of
Professional Psychology are
important. Experience is the
most important barometer of
the qualifications for the
neuropsychologist you choose.
In
selecting a neuropsychologist,
a lawyer must evaluate the
neuropsychologist as a
witness, making a continuing
assessment as to what effect
that will have on the outcome
of the case.
3.
The neuropsychological report
Most important to the
purpose of the trial attorney
is the neuropsychological
report. This is a
communication of findings of
examination and should be
written in a clear manner and
not with technical language.
This information is vital in
determining the damages of
future care needs and costs.
It is also the most important
key to settlement.
A
neuropsychologist who makes an
assessment in cases such as
this will utilize standard
testing methods to identify
specific and general cognitive
and perceptual motor abilities
and deficits with an eye
toward defining problems. This
extensive testing procedure
can identify cognitive and
behavioral deficits and
localize the hemisphere or
lobe that is involved. A
neuropsychological assessment
is to identify the function of
the brain that requires
rehabilitation as well as
those that are not impaired.
A
neuropsychological assessment
is a critical part of the
total evaluation of the
injured victim. It is a
lengthy and difficult process.
The assessment usually covers
a period lasting from 4-7
hours, often longer. Lawyers
should be aware that this is a
costly affair, not always
depending on the number of
hours involved.
D.
The Rehabilitation Specialist
In
recent years, significant
breakthroughs have been made
in rehabilitative techniques
for persons with brain injury.
Research in the area of brain
injury is being conducted in
many centers throughout the
United States. Although the
state of rehabilitative care
for such persons is still in
its infancy, effective
treatment is available.
Persons who specialize in
individual rehabilitation and
habilitation to maximize human
potential are called
rehabilitation specialists.
1.
The life care plan
Based on reports, which are
provided by experts including
the physiatrist and the
neuropsychologist, a
rehabilitation specialist is
able to furnish a background
report utilizing the education
and training of the injured
victim which can plan a
rehabilitation program
covering the remainder of the
disability of the individual.
The plan, formulated by the
rehabilitation specialist,
recommends the correct
diagnostic tools and the
appropriate treatment
modalities. This plan also
enters a long term perspective
for the individual and
develops appropriate goals as
to the patient's functions and
his or her quality of life and
the economics involved.
Essentially for the lawyer,
the rehabilitation specialist
provides a report which
includes a number of features
which can be used at trial in
order to determine the
economic needs of the injured
victim as he proceeds through
life.
2.
Elements of the life care plan
In the report, the
rehabilitation specialist will
emphasize the following:
(a)
vocational handicaps and
potentials
(b)
wage loss
(c)
medical and therapeutic
evaluations
(d)
medical and therapeutic
treatments
(e)
home care v. facility care
(f)
home modification
(g)
equipment needed for
rehabilitation
(h)
future surgery
(i)
future complications
(j)
personal items
(k)
recreation and leisure times
needs
(l)
medications
This
will usually include a cost of
item analysis, showing
dramatically what the needs of
the injured victim are during
the recovery stages. To the
lawyer this is an exciting
development in that there
exists a witness who will lay
out the day by day needs of
the injured victim throughout
his or her future. In
addition, the rehabilitation
specialist provides guidance
and expertise in fitting the
injured victim into a program
which will accelerate his
recovery and return to home
family and the community.
E.
The Economist
The
last expert who should be
retained on behalf of the
plaintiff in a major brain
injury case is an economist
who specializes in cases
involving brain damage. Using
a rehabilitation expert's
report as a basis, this expert
can reduce the whole cost
process to a set of figures
easily translatable to a
jury's verdict. This is a must
if the jury is to move through
the maze of treatment and
costs involved in arriving at
a verdict. Only the economist
can finally arrive at a lump
sum value of what the case is
worth.
We
at Kirk Law Firm
are
committed to handling claims of
individuals sustaining traumatic
brain injury (TBI). We are
committed to spending the time
with you and your family members
to gain a deep understanding for
each and every way the injury
has affected your life. We are
committed to spend the necessary
time in order you understand
your rights in the progress of
your case. Our staff is
committed to trying to make your
life easier, and we will
endeavor to put you in contact
with support groups and treating
doctors as your case may
require. Contact us
today: 1-606-297-5888.
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