Representing a Client with a Traumatic Brain Injury

In clients with suspected or complained of head injuries, as with all personal injury cases, the following steps should be taken to properly document the case, evaluate it, represent the client, and support the client’s need for full and complete medical assessment and care:

• Obtain and retain evidence:

1. Records: Obtaining records and documents regarding the client is important to understand the client both before and after the incident so that a “compare and contrast” analysis can occur. These records include photographs and videotape, school records, entry-level tests for the military (ASVAB – a multi-aptitude test), testing records (IQ, etc.), medical records, and job performance evaluations. It is important to note that while there may be some objective disparity between pre and post test results (for example – IQ), it is also possible that the client suffers from a MTBI with serious consequences but that test results do not disclose an MTBI. The fact that prior to the incident the client had good test results and a high IQ, and these results persisted post-concussion, does not negate a legitimate provable claim. Furthermore, while historically the system most commonly used for determining severity of a brain injury was the Glasgow Coma Scale (GCS), a GCS score of “normal” does not negate an MTBI. The GCS was established in 1974 and was developed to evaluate neurologic assessments of comatose patients with head injury. The scale wasn’t designed to diagnose patients with mild or even moderate brain injuries, nor was it aimed to supersede a complete and detailed neurologic examination. In 1974 CT scanning was not yet available. Nevertheless, if scans are taken of your client they should be obtained. While scans may not disclose MTBI, the patient may still have a traumatic brain injury with serious repercussions in his everyday life and his future. In fact, according to the journal Radiology, structural injuries are suspected and exist even though they are not yet fully detected on routine clinical imaging.
2. Neuropsychological test results: Neuropsychological testing can be important in supporting your client’s claim, as well as changes in his conduct before and after the accident, speech patterns, word usage, and ease of access to vocabulary. Pay attention to the Test of Malingering (TOM) which is often performed in the neuropsychological assessment – it can be very elucidating and helpful in the client’s claim. Retention of experts in brain injuries, including neurologists, psychologists, and neuroradiologists, can be very helpful in supporting the client’s claim.
3. We are also aware that helmets (football, motorcycle, bicycle, etc.) do not provide guaranteed protection from head injuries. Consideration of product liability claims should be engaged in to properly represent the client. This includes obtaining and securing the helmet and clothing worn at the time of the accident. In product liability cases, retaining all helmets owned by the client can be very useful (as well as the bike, motorcycle, ATV, automobile, etc.).

• Damages (the diary, calendar, witnesses, and “bucket-list”):

1. Pre-accident diary and calendar: If your client kept a diary or calendar before the accident then it should be obtained and reviewed with an eye toward evaluating activity level before the accident.
2. Post-accident diary and calendar: Regardless of whether there is a diary or calendar of pre-accident activities, it is important for the client and the client’s advocates to accumulate information about what they view as changes in the activity level, life style, energy, productivity, and damages sustained due to the brain injury. Gathering and documenting this information on a timely basis is the only method that will capture all of the pertinent information. The client who says, “I’ll remember it later” may mean well but needs to be pushed to document feelings and events, otherwise the details will be lost.
3. Interview witnesses: From a damage perspective, interviewing witnesses to your client’s performance in school, at work, and in social settings is important to fully and completely understand the impact of the accident and the MTBI on your client. These witnesses may in fact be better than your client in describing the changes in the client’s life as well as the client’s performance and attitude in various settings. Clients are often dismissive of a mild head injury. Often a client knows they have sustained a brain injury but they are not able to articulate what they are feeling or explain deficiencies in their performance. Brain trauma is a highly individualized injury but can be seen in deficits in executive functioning tasks, planning, cognitive flexibility, decision-making, impulse control, adaptation to new situations, anxiety control, and coping strategies.
4. Bucket-list: If your client kept a “bucket-list” then it could be a key piece of damage evidence, particularly if the client is unable to complete some or all of the items on the list because of the client’s injury. At a minimum, it may demonstrate the dreams and aspirations of the client, an important element of the client’s damage profile.
5. Understanding the Client’s everyday living activities: An attorney representing an injured client must know the facts of the client’s everyday living experience, which requires a full and complete interview of the client, and the people who see and deal with him on an everyday or even periodic basis. As mentioned earlier, a very helpful tool to understanding the client before and after the accident and evaluating the client’s injuries is the client’s work and personal calendar, which can demonstrate activities as well as activity levels. If the client was an athlete and maintained a workout calendar or chart – that should be reviewed. If the client was a member of a gym, oftentimes the gym’s login system will identify the frequency and potentially the duration of the client’s workout. There are multitudes of opportunities to gather information about the client, which can support the client’s case – good questioning about the client’s life as well as creativity must be employed by the attorney to assist the client. In two recent cases, the client’s “calendar” assisted in representing the client. In the first, a baby sustained an injury and the family’s traditional “baby calendar” was utilized to illustrate the milestones that would never be reached therefore meeting one item of damage. In the second, a client’s training program for a marathon was cut short due to an accident and the client’s training calendar was used to demonstrate the consistency and level of training pre-accident versus the drop in training post-accident.

• Medical research: It is critical when representing a client to stay abreast of existing and burgeoning medical research regarding head injuries. Examples of subjects which are the basis for medical studies that can assist clients are those in the areas of executive function and coping at one year post TBI, prognosis for MTBI, the neuroscience of persistent post-concussive syndrome, recommendations for diagnosing MTBI, changes of cognitive functioning following mild traumatic brain injury over a 3 month period, long term neuropsychological outcomes following MTBI, neuropsychological performance following a history of multiple self-reported concussions, and complicated versus uncomplicated mild traumatic brain injury. As recently as Spring 2013 the Los Angeles Times published an article titled “Just a single concussion may have lasting effects”, citing recent medical studies on the subject. Successive head injuries, with or without a loss of consciousness, and even with a “full recovery” between head injuries, can lead to long term closed head injuries.
• Consideration of other potential claims including loss of consortium by the client’s spouse and product liability claims should be considered.
• Consideration of the client developing Post-Concussive Syndrome and/or Post Traumatic Stress Disorder must be evaluated. Clients with MTBI are more likely to develop PTSD. (Journal of American Medical Association Psychiatry – JAMA Psychiatry)
• The Pre-Post Medical Chart and the Injury Grid: Clients rarely arrive at an attorney’soffice with no history of any medical condition. All of us have had our bumps and bruises during our lifetime and obtaining medical records and understanding the client’s past medical history is critical to a clear understanding of the strengths and weaknesses of the claim. Use body diagrams to identify the key medical issues a client has experienced before and after an accident to visually demonstrate to mediators, judges and juries any preexisting conditions versus injuries caused by the accident, which is at issue. Sometimes clients have had multiple accidents and using multiple body diagrams can be useful to demonstrate that medical issues of years earlier are clearly distinguishable from the present accident. Serial diagrams or plastic overlays demonstrate these points quite well. The pre versus post-accident condition of the client can also be demonstrated in an injury grid chronology format. Clearly, significant time must be spent dissecting the medical records to accomplish these tasks.

These steps are designed to create clarity for the mediator, judge, and jury in the presentation of the client’s damage case. These efforts by an attorney in a head injury case can maximize the client’s damage recovery.

Lyle G. from Woodland Hills, CA is a member of the Attorney Referral Service (ARS) of the San Fernando Valley Bar Association (SFVBA).

To learn more about the information provided above or for questions about the above content, contact us at 818-340-4529.