TBI Info for Lawyers - De Caro & Kaplen, LLP

Video Transcript

Traumatic Brain Injury: Important Information for Lawyers

Michael V. Kaplen: What does every attorney contemplating representing a person who has sustained a concussion need to know?

Any attorney, who is contemplating representing an individual who has sustained a concussion and now suffers from the post concussion syndrome, needs to know that there are many misconceptions about concussions and traumatic brain injury.

First and foremost, the lawyer representing a brain injury survivor needs to know that there is nothing mild about a mild traumatic brain injury. Any brain injury can have serious and life -long consequences and concussions are no different.

A brain injury attorney needs to thoroughly understand his client’s own particular situation and the way that the brain injury has affected that individual’s day to day activities. It is important to a gain an understanding of the client’s life both before and after their injury.

The brain injury lawyer cannot be influenced by public misconceptions concerning head and brain injury and needs to understand the following important information:

  • A person does not need to be knocked unconscious in order to have sustained a concussion or for that matter any type of brain injury.

One of the best examples and one used in medical schools of this concept is the famous case from the 1800’s of the railroad worker, Phineas Gage who had a railroad spike go through his scalp and become lodged in his brain. Following the incident, Phineas was walking and talking and never lost consciousness.

Unfortunately, Phineas developed a host of cognitive and behavioral problems that affected him for the rest of his life

  • A brain injury attorney needs to know that a person may be walking, talking and even exchanging information at the scene of the accident and may be suffering from brain injury, even though they appear to be functioning normally.

This is because many brain injuries take hours, days and even weeks to fully manifest themselves. The changes that take place in the brain do not happen all at once. There is a slow death of brain cells that occur over time as a result of both chemical and mechanical changes in the brain. Often times, the extent of injury is not realized until the individual attempts to perform complex tasks and tries to return to their normal routine.

  • There is a false assumption that because the client did not sustain any broken bones, they couldn’t have sustained a traumatic brain injury.

The amount of force necessary to cause injury to the brain is far less than is required to break a bone. It is the movement of the head within the skull and the stretching and tearing of microscopic nerve cells that causes the traumatic brain injury. A great deal of force is not required to injure the brain.

  • Many lawyers, insurance carriers and unfortunately even some misinformed members of the medical profession mistakenly believe that without positive CT or MRI finding, no brain injury took place.

This is a common misconception that has long been refuted by well established medical studies.

It is crystal clear that the absence of positive findings on either an MRI or CT scan does not mean that no brain injury took place. These tests simply are not detailed enough to pick up the damage that takes place in the brain. These tests only look at the brain’s structure and cannot get down to the microscopic level where the damage has taken place.

In fact, since these are tests of structure and not function, they cannot even tell you if the person being tested is awake or asleep or even alive or dead.

  • A negative neurological examination cannot rule out a concussion or persistent brain injury.

The gross neurological examination performed in a doctor’s office or in the emergency room is simply not a test of cognitive function and traumatic brain injury.

It was never designed for that purpose and to use it for this purpose is misleading and doesn’t make sense. The gross neurological examination tests in a very simple fashion the functioning of the twelve cranial nerves. These nerves are not the nerves typically injured when a concussion takes place and to say that no damage was done and therefore no brain injury took place is an attempt to mislead a jury or the court.

This testing does not test the way we think and how we process information. To obtain this information we need to have our clients undergo neuropsychological testing.

  • Not every victim of a concussion has all the symptoms associated with the post concussive disorder.

Finally, many attorneys are turned off from representing persons who suffer the effects of a concussion because their symptoms and complaints do not follow any particular pattern. This is really what you would expect following a concussion. It is the hallmark of brain injury, that every brain injury is different, and that each individual may develop different symptoms at different times. Sometimes, some symptoms disappear, other symptoms may take days or weeks or even months to develop.

A lawyer contemplating representing a victim of survivor of a traumatic brain injury needs to be familiar with the medical literature and fully comprehend this invisible injury to successfully represent the victims of this silent epidemic.