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 Munley, Munley
& Cartwright 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:
