Although a closed head injury can add a lot of value to a case, plaintiffs’ lawyers and their clients sometimes overlook the existance of these injuries .
Since it can be difficult to prove brain injuries, many attorneys simply refuse to take closed head cases. However, once the injury is understood, and the attorney is able to explain the injury to a jury, the victim can be adequately compensated.
Lawyers and their clients often “miss” closed head injury claims, observed Minneapolis attorney Chris A. Messerly. Attorneys and clients tend to believe (mistakenly) that in order for there to be a head injury, the head must come into contact with something — be it a windshield, a concrete curb or a steel door, he explained. However, it is the force on the brain, not the impact on the skull, that is at issue in a closed head injury.
Minneapolis plaintiffs’ attorney William Sieben was able to procure a $1.5 million jury verdict in a closed head case in Scott County in 1996. In that case, Malz v. Becker, a 42-year-old woman landed on her head after being thrown 70 feet off of a farm tractor that collided with a semi-truck. She sustained a brain injury, also known as a closed head injury.
According to Sieben, the jury awarded the substantial verdict because jurors believed the medical testimony that the plaintiff would require attended care in her home to help with daily living activities for the rest of her life.
Closed head injuries, or hard-to-detect soft-tissue damage to the brain, sometimes show no outward manifestations. Someone may appear to function very well — they can speak, walk, drive — but because of the brain injury he or she is unable to concentrate or pay attention. The injuries may even be present when X-rays, CAT-scans, MRIs and EEGs appear normal.
Although unconsciousness does not accompany all brain injuries, closed head injuries are usually defined as “mild” (loss of consciousness for less than 30 minutes), “moderate” (loss of consciousness for 30 minutes to 24 hours) or “severe” (loss of consciousness for more than 24 hours). Some attorneys find this nomenclature problematic because even though it can help the victim and doctors appreciate the initial signs and symptoms, it doesn’t necessarily predict the cognitive deficits that will plague the victim later on. Moreover, if the closed head injury is labeled “mild,” it can be difficult to prove to a jury that the damage is severe.
Recognize the injury
Messerly observed that while some clients are knowledgeable about the extent of their injuries — and will specifically ask for representation in a closed head injury case — others are not.
Sieben said that he often begins thinking about the possibility of closed head injuries before he ever meets the client, especially when the initial complaint concerns a blow to the head. In that type of situation, Sieben routinely asks his clients to describe their symptoms, and listens closely for complaints that they have trouble remembering or thinking. It also isn’t rare for family members to come forward with their observations, he added.
If you suspect that your client has suffered a closed head injury, the first step is to contact the treating physician, who will likely have observed the plaintiff both before and after the injury, advised Sieben. The treating physician can refer the plaintiff to a neurologist for X rays, CT scans and MRIs, he explained, adding that the doctor may further refer the plaintiff to a neuropsychologist.
Neuropsychologists are trained to measure and quantify a person’s cognitive functioning. Neuropsychology provides objective test data to demonstrate how certain areas of the brain are deficient while other areas remain intact.
But even an attorney can make an educated layperson assessment of whether a client has suffered a closed head injury, said Messerly. Talk with the client’s healthcare providers and request medical records. If it appears that the client may have suffered a closed head injury, then spring for the extra cost of neuropsychometric testing, advised Messerly.
Messerly explained that there are two reasons why the cost of the testing is worthwhile. First and foremost, he said, is the person’s health. A person needs medical attention and advice on how to deal with the ways the injury manifests, he explained. Even little things, like palm pilots or post-it notes to remind a person who is experiencing memory trouble, can make a big difference, he continued. “There’s a great sense of relief in knowing that you suffer from an objective injury rather than believing you are simply losing your mind,” he observed. The second reason is that an attorney must zealously pursue avenues in the interest of the client, Messerly added.
“There is no way to determine the nature and extent of brain injury without neuropsychological testing,” observed Sieben, adding that the cost of the five-or six-hour testing session is usually under $1,000.
Value the injury
Once a closed head injury becomes apparent, practitioners must gauge the severity of the injury. If the client was unconscious for a period of time, the lawyer should learn about the different coma scales, neurological assessments, memory tests and speech-language evaluations.
In addition, accident victims with closed head injuries may suffer from cognitive deficits, heterotopic ossification, seizures, executive function limitations, disinhibitions, speech problems, physical limitations, vision complications, smelling disorders and balance disturbances.
Lawyers should recognize that oftentimes the symptoms of a closed head injury will not manifest immediately. Seizures may not appear for years. Nevertheless, lawyers should determine as fast as possible if a closed head injury claim is a possibility. Such injuries — even though difficult to recognize and prove — are not inherently unknowable and therefore will generally not toll the statute of limitations.
Convincing the jury
Messerly observed that the medical community accepts that one can suffer injury without the injury appearing on objective tests. The problem is convincing the jury, he said, noting that closed head injury cases are expert intensive.
Although Sieben doesn’t employ any special tactics when selecting a jury for a closed head injury case, Messerly asks the potential jurors whether they have ever known anyone with a brain injury. He also will ask jurors whether they require objective test results in order to believe someone is injured — and whether they think that if someone can walk and talk they are not really injured.
Sieben acknowledged that there are “fakers and phonies” out there who attempt to capitalize on the ambiguities inherent in closed head injury cases — but in 23 years he hasn’t seen one. There just aren’t many people trying to fake brain damage, he said.
When the medical evidence is ambiguous, before and after testimony can be the most persuasive evidence.
Messerly observed that before and after testimony is essential because it provides a picture of a real human being whose life has been affected by an injury. Employers, supervisors, and coworkers are wonderful witnesses because they have the daily ability to observe the injured party, oftentimes without the injured party’s knowledge, said Sieben.
Messerly acknowledged that putting the plaintiff on the stand can be risky because the jury will be presented with a seemingly normal individual. Still, the plaintiff should be called to explain how life is different. The focus should be on simple, concrete examples. If the plaintiff forgot to pick her child up at school, have her testify to that specific occasion and how it affected her life and others rather than simply saying that she has difficulty remembering.
“You have to put the plaintiff on the stand,” said Sieben. Even though there is no statute that requires the plaintiff to testify, and most of the testimony will come from experts and before and after witnesses, the jury wants to see and hear from the plaintiff, he said.
Do the research
If you plan to take closed head injury cases, you absolutely should read the seventh chapter of the third edition of Professor Muriel Lezak’s book called Neuropsychological Assessment, said Sieben. That chapter, entitled Trauma, will help lawyers learn the subtleties of closed head injuries and provide insight as to how to prove the extent of the damage, he added.
Messerly mentioned that attorneys should keep in mind Minnesota Rules of Professional Conduct rule 1.14, which states that an attorney “shall” maintain a normal client-lawyer relationship with a client under a disability. If the injury to the brain is so severe that the client’s decision-making ability may be impaired, talk to a medical professional and determine whether a guardian should be appointed, he advised.
The Brain Injury Association, the only organization in Minnesota devoted solely to the education and support needs of those who suffer from brain injuries, provides free information about rehabilitation and assists with seeking treatment. Kathleen O’Brien, a program specialist with the organization, explained that those with brain injuries need to understand their injuries, and their family members need to have their questions answered as well. It’s important to be informed, she said, and to understand the risk factors.
Moreover, needs differ depending on the age of the injured victim, and the association can help victims and their families deal with the injury. The 16-year-old organization is located in Minneapolis and may be contacted by calling 1-800-669-6442 or via the Web at www.braininjurymn.org.