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Brain Injury: Proving a Lifetime Disability

Author / Coordinator: Richard Alexander
March 2007

Head injuries bring more than 400,000 people to hospitals every year. Approximately three-quarters are diagnosed as having suffered a mild to moderate injury – injuries that can be subtle, persistent, and potentially long term.

Demographically, three quarters of the survivors are males, one half of whom are ages 15 to 34. They are the "go for the gusto," high speed, consumers of alcohol who are going to live forever and who dominate ERs Friday night through Sunday morning and the Monday morning arraignment calendars. From a public health perspective, alcohol abuse training, roll bars, air bags, and helmet protection for motorcyclists, bicyclists, skateboarders, and skiers are top priorities because the number of TBI survivors is not expected to significantly diminish over the next ten years.

The most challenging aspect of representing TBI survivors is that many times they suffer minimal outward physical manifestations of injury. These patients are told they will recover. As a result many do not receive appropriate care and treatment for the disabilities that follow, including physical, cognitive, psychological, and social impairments. Maximizing damages for these plaintiffs requires a thorough understanding of traumatic brain injury. Since the medical community generally speaking is not well trained in neurobehavior, physicians often fail to diagnose the short-term and potentially chronic aspects of closed head injuries in the regular office visit. Outside of the regional head injury treatment centers, neurologists on a day-to-day basis do not treat trauma victims. Neuro-surgeons see only the most severe cases of acute disorders and coma.

There is widespread misunderstanding concerning traumatic brain injury even in otherwise knowledgeable medical circles. Anecdotes do not replace scientific evidence, bur recently a well regarded neurologist, an assistant clinical professor of medicine at Stanford University and a respected scientist and author, concluded that a moderate head injury in a bicycle/truck collision, in which the plaintiff’s bicycle helmet was fractured, was not responsible for chronic fatigue six months post-injury. Even after he reviewed well documented medical references describing fatigue as the most common complaint in two-thirds of all minimal to moderate head injury patients, this physician still opined that his patient s fatigue was secondary to depression and unrelated to injury. Such a misinformed view by a treating physician severely impacted the plaintiff s ability to achieve fair compensation in a strongly contested case of liability.

People with concussions heal over time and that many of the emotional conditions reported can be equally associated with psychological conditions which occur in the absence of physical trauma. In this setting, reassurance goes a long way to promote healing and well-being. Unfortunately, reassurance should always follow a realistic assessment and often there is not enough time, or insufficient skill, to conduct a proper medical evaluation.

To maximize damages for this plaintiff requires a grounding in the medicine of head injury and an understanding the full range of traumatic brain injury is a sine qua non for plaintiffs who have suffered physical injury and in evaluating plaintiffs insulted by contaminated drugs, toxic exposures, and silicone gel breast implant reactions.

Keep in mind that, unlike common orthopedic injuries, there is no bright line to identify brain injuries and even if there were a line it would not be a straight line. The range and severity of disabilities in one patient will vary dramatically. Some functions may be severely disabled and other skills intact. That is why learning the medicine and being able to identify when you need to seek a neuro-psychological consultation is important. As a trial lawyer you must be alert to the full range of TBI symptoms.

Attorneys are often the first professionals who take the time to listen carefully to the patient, who critically evaluate any lingering condition, or carefully observe symptoms. Families members accompanying the plaintiff are excellent resources who can describe changes in personality, skills and the subtle symptoms and complaints many times dismissed as the complaints of a hypochondriac. During the several hours you devote to meeting with a new client, conduct a review of the common symptoms of TBI that are discussed below and do not hesitate to have the client referred for a neuro-psychological evaluation if you suspect there may be brain injury. The earlier you make the referral the better because that initial evaluation may be the first objective evaluation for the purpose of establishing a baseline for later comparison.

The human brain consists of billions of microscopic fibers, suspended in cerebrospinal fluid. While the exterior skull is smooth, the inner surface contains ribbing and pronounced bony structures. Impact with these inner surfaces of the skull causes tearing and bruising that results in brain damage.

Injuries occur when the momentum of the brain impacts against a skull that has been decelerated. This often results in swelling and resulting compression that can have long term effects. Nerve fibers are sheared in rotational injuries that can leave the brain stem permanently altered. Respiratory obstructions and compromised lung function that cause a total cessation of oxygenation result in anoxic injuries. Medically these injuries are distinct from hypoxic injuries caused by reduced oxygen.

The severely handicapped TBI survivor presents the easier case for maximizing damages because the extent of the injury is not doubted. It is the patient with mild injuries with a complete medical recovery from physical symptoms that presents a major challenge to the skill of treating physicians, rehabilitation professionals, and to the legal team called upon to prove and explain the long term effect of these injuries to judges and juries.

Post-concussion syndrome presents with headaches, spasticity, dizziness, reduced coordination, sensory dysfunction, memory losses, problems in concentrating, difficulty in perceiving, sequencing, judgment and communication, fatigue, loss of empathy, depression, anxiety, sexual dysfunction, depressed motivation, emotional volatility, slowed thinking and impaired writing and reading skill. Patients complain of trouble organizing thoughts, inability to express themselves, difficulty selecting and recalling words, short-temper, learning new information and retaining it, getting lost, confusion and agitation. These are the same symptoms and complaints observed and experienced by survivors of severe injury. Studying and understanding the treatment of the severely injured will assist in identifying the needs of the person who has suffered mild head injury.

To appreciate the extent of a precipitating injury, it is helpful to understand two commonly used medical scales found in every medical chart involving TBI.

The first is the Glasgow Coma Scale which rates a patient s ability to open his/her eyes, response to verbal commands and verbal responses. Each level of response indicates the degree of brain injury.

Glasgow Coma Scale
Eyes                                   Score
Open spontaneously            4
Open to verbal command     3
Open to pain                         2
No response                         1

Best motor response to a verbal command

Obeys verbal command       6

Best motor response to painful stimulus

Localizes pain                     5
Flexion – withdrawal           4
Flexion – abnormal               3
Extension                             2
No response                        1

Best verbal response

Oriented and converses      5
Disoriented and converses 4
Inappropriate words            3
Incomprehensible sounds    2
No response                        1


The lowest score is a 3 and indicates no response from the patient. A person who is alert and oriented would be rated at 15.

The Rancho Los Amigas Cognitive Scale describes levels of function and are used to assess the efficacy of treatment programs. The scale scores cover deep coma to appropriate functioning. Most survivors will demonstrate characteristics from several levels at once.

Level I: no response to pain, touch, sound or sight.

Level II: generalize reflex response to pain.

Level III: localized response to pain. Blinks to strong light, turns toward or away from sound, responds to physical discomfort, inconsistent response to commands.

Level IV: confused/agitated. Alert, very active, aggressive or bizarre behaviors, performs motor activities but behavior is non-purposeful, extremely short attention span.

Level V confused/non-agitated. Gross attention to environment, highly distractible, requires continual redirection, difficulty learning new tasks, agitated by too much stimulation. May engage in social conversation but with inappropriate verbalization.

Level VI: confused/appropriate. Inconsistent orientation to time and place, retention span/recent memory impaired, begins to recall past, consistently follows simple directions, goal-directed behavior with assistance.

Level VII: automatic/appropriate. Performs daily routine in highly familiar environment in a non- confused but automatic robot-like manner. Skills noticeably deteriorate in unfamiliar environment. Lacks realistic planning for own future.

Level VIII: purposeful/appropriate.

Those who suffer skull fractures, loss of consciousness and coma and typically are diagnosed as moderate to severe injuries, with obvious physical impairments. Because they have suffered objective physical injuries, their resulting impairments are readily accepted as having been caused by the initial insult. Some of the physical consequences that may occur after a brain injury include decreased muscle control, paralysis, weakness, seizures, sensory losses, and difficulty speaking or swallowing.

Lost motor control or weakness of one arm or leg or on one side of the body is known as hemiparesis. Poor balance, decreased endurance, loss of the ability to plan movements of arms, legs and poor coordination are evident. Survivors experience spasticity or abnormal tone and muscle stiffness.

Seizures can occur immediately or may be delayed until months or even years after the initial trauma. A seizure is a burst of abnormal electrical energy in the brain. In generalized seizures, or major motor seizures, the entire body stiffens. Loss of consciousness, irregular breathing, and loss of bowel and bladder accompany severe shaking. After regaining consciousness, the patient reports soreness and confusion. A second category of seizures are known as focal motor or partial seizures which present as jerking movements or twitching. Consciousness remains intact and often is viewed as a loss of concentration. Often the patient does not know that a seizure has taken place.

Following TBI sight, sound, taste, touch and smell can suffer decreased or increased sensitivity, or a complete loss. Loss of sensation to parts of the body and hypersensitivity are also common. Double vision, loss of depth perception, and an inability to see on one side of the body can occur. Loss of proprioception, the inability to know where arms and legs are in relationship to the body, also takes place.

Fatigue is extremely common in the early stages following injury. In many cases the fatigue is profound and staying alert and awake for these patients is difficult. This can easily be confused with being unmotivated because these patients have difficulty paying attention and are sleepy.

Speech disorders follow damage to the cranial nerve which enervates the face. Dysarthria, difficulty in pronouncing words, characterized by slurred or slow speech or loss of the ability to vocalize, results from weak muscles or reduced coordination of the muscles required to produce speech. A closely related condition, dysphagia, the inability to swallow and chew properly, can be readily observed when a patient extends his/her neck or engages in some accommodating movement when swallowing. Reports of choking or the need to soften food with water before swallowing are significant.

Sleep disorders are another area of inquiry. Total reversals of sleep patterns, the need for multiple naps and rest periods and loss of bowel and bladder control are reported.

Neurologic damage readily disrupts how a person thinks and processes information. Memory, attention, organization, planning and perception are functions disrupted by TBI. Attention and concentration is something most of us do well. We pay attention and focus on a specific task and block out distractions both internal and external. Survivors of TBI quickly change subjects and have difficulty following through an idea or a sequence to completion. The slightest distraction causes a complete loss of concentration and results in confusion. Without attention and concentration, learning cannot occur.

Significant confusion following a head injury is so common that the primary medical inquiry is to establish if the patient is oriented. Not knowing the day, week, year, where they are or what happened results in the patient asking searching questions. Coping with confusion is extremely frustrating and leads to more confusion. As a defense mechanism to bring rationality to their existence, many patients will develop their own explanation or history, integrating some accurate information, into a fabric of reality and fantasy. Confabulation is not coping with reality, but it is more closely associated with denial and is a defense mechanism.

Survivors have difficulty planning which is known as impaired executive function. Planning requires good memory, learning, judgment, attention and organizational skills. Difficulty in following a logical progression or focusing or getting stuck on one step, stage or activity raises frustrations. Dealing withabstract concepts as literal facts is additionally confusing. Aphorisms, such as a complimentary "you are a tough cookie," are interpreted to mean that the listener is a piece of food that is extremely hard to chew.

The most significant hurdle to learning after injury is memory loss and impairment. The mind s capacity to receive, store and retrieve information is effected. Short-term memory and recalling what happened yesterday is more common than the loss of recall for older information. This should not be confused with retrograde amnesia, which is the inability to recall events before injury. Anterograde amnesia is the inability to recall events that have occurred since injury.

Impaired communication skills, such as aphasia, the inability to understand or recall the simplest words, is caused by brain cell damage, not by physical inability to speak. Survivors who have difficulty understanding are diagnosed with receptive aphasia. Expressive aphasia is the diagnosis for those having difficulty remembering words, naming objects or expressing ideas.

Impaired judgment occurs when abstract thinking is impaired. Being stimulus bound is when the brain only recognizes and reacts to objects and events in the immediate environment. Applying a task to a similar but different situation cannot be accomplished. Difficulty in interpreting the actions or inaction or others is common. Those who show concern and attention can be viewed as being angry toward the survivor.

People with impaired memory may remember and retain old skills, but learning new ones require repeated instructions and extended practice. Even then they can be readily forgotten, with accompanying frustration, depression, and anger.

Frontal lobe injuries can be interpreted as causing dullness because this area of the brain controls impulses, motivation and initiation. These survivors need to be reminded and prompted in simple tasks, such as daily care and living tasks. Regular encouragement and visual cues are helpful in prompting initiation.

In addition to physical consequences of TBI the ability to understand feelings and the ability to control emotions are impacted. A whole range of behavioral symptoms occur with TBI: agitation, depression, frustration, rapid changes in emotion and severe mood changes, insensitivity to others, self-centeredness, rage tantrums, poor impulse control, loss of inhibition, decreased libido, inappropriate sexual expression and loss of self-esteem. Pre-existing conditions may be amplified following TBI.

Survivors suffering moderate to severe injuries will have hospital and rehabilitation care from a wide range of professionals. Knowing the role of these providers is important to appreciating the significance and magnitude of TBI and in formulating a courtroom presentation that explains the breadth of disability a survivor must endure.

The neurologist specializes in the medical treatment of the nervous system: the brain, spinal cord, nerves and muscles. A neurologist is first called to make an initial evaluation, diagnose the injury and consult on immediate medical care the patient requires.

The physiatrist combines physical medicine and rehabilitation medicine dir ected at renewing function and these medical doctors are trained in both neurology and orthopedics.

The neuropsychologist specializes in evaluating brain function and performs sophisticated tests of brain function necessary to identify specific injuries and to select appropriate rehabilitation efforts.

Respiratory or pulmonary therapists help the patient breathe and maintain a ventilator employed to insure clear airways.

Physical therapists focus on restoring motor function, strengthening muscles, improving coordination, balance, endurance and the movement of joints.

Occupational therapists provide rehabilitation skills to help the patient perform physical tasks involving both gross and fine motor skills, as well as performing the six activities of daily living: bathing, dressing, toileting, transferring [getting in and out of a chair or bed], continence [voluntary bowel and bladder functions], and feeding.

Because speech deficits are the most common disability for survivors, speech pathologists are involved in evaluating and teaching speech, writing, reading and expression skills aimed at both comprehension and communication.

Cognitive therapists teach survivors how to learn. The goal is to help survivors identify techniques to improve their ability to remember ideas. Computers are used extensively as a training tool by cognitive therapists.

Vocational rehabilitation counsellors identify skills, aptitudes, and abilities that will help restore the patient to the world of work. To determine the level of vocational functioning the counsellor also evaluates the patients ability to follow instructions and social skills. Testing helps determine the survivors ability to learn, to make judgments and to evaluate productivity, punctuality, reaction time, distractibility and tolerance for frustration. Once the evaluation is completed a specialized training program is designed and implemented to promote a smooth transition to being able to once again be gainfully employed. Survivors of TBI face monumental challenges to job re-entry and having realistic expectations are important from the outset. Many times work adjustment training, driver s training, job seeking and interviewing skills may be insufficient and a job coach is needed to facilitate a smooth transition. Still, educating employers is the chief obstacle for the family and representatives of TBI survivors.

The educational therapist teaches the basic skills needed to return to school or work and arranges for a special educational environment from designing course work that will develop reading, writing or math skills to arranging for note takers or real time court reporters in class.

Social workers provide the important connection between the health care staff, rehabilitation professionals, family, school, work and often the insurance carrier funding the rehabilitation. The chief task for the social worker is to prepare a detailed background study and normally includes the patient s pre-injury personality, lifestyle, emotional and financial resources, educational history, work and leisure interests, special relationship and previous problems. Long-term and short-term goals are usually developed with the social worker. Because the family will be in regular contact with the social worker, they will seek advice and will share confidences with the social worker. It is important for the patient s legal representatives to have a strong and responsible working relationship with the social worker. The social worker s background study is one of the most significant documents in the rehabilitation chart.

Therapeutic recreational specialists evaluate interests and hobbies and integrate them into therapy goals that are readily enjoyed by the survivor. The focus is to develop physical, cognitive and social skills so leisure activities can once again be enjoyed.

The rehabilitation case manager or rehabilitation specialist coordinates the goals of the patient, family and rehabilitation staff as an advocate for the patient and oversees the overall treatment plan. The case manager is routinely in charge of reporting to the insurance carrier funding the recovery program.

Throughout this discussion the TBI survivor has been presumed to be an adult. By far the most challenging plaintiff is a child who is attractive and who will walk into the courtroom. As this child matures it is extremely common for more serious behavioral and learning disabilities to emerge, which further compound the development of personality, attitudes and life-coping skills. By the same token, developing maturity also masks the recovery process and leaves the question whether the youngster is recovering or developing. A pediatric neurologist is invaluable in explaining how injury interrupts growth and development and why children need specialized rehabilitation services now and in the future.

In tandem with the pediatric neurologist is the research psychologist who can educate the trier of fact concerning the long-term effects of head injury, the impact on the family, the need for lifecare planning, and the most common sequelae for TBI survivors. The attractive child with a severe impairment will generate compassion and understanding from his/her environment, but once the adolescent years begin the tasks of dealing with sexual drives, peers, alcohol and drugs in the TBI survivor are grossly complicated. Living unsupervised in the community will result in exposure to police and courts, which creates a whole additional range of problems that are important to understand.

At the criminal justice level, next to nobody, including public defenders and judges, appreciates that TBI has been closely associated with criminal histories and specifically with violent rages. Current research from the University of Chicago by Dr. Stuart Yudofsky shows that the most common cause of explosive anger is brain injury or neurological disease and that there are now medications available to control violent rage. Beta-blockers can be used to effectively treat not only high blood pressure, but also violent rages. This research is confirmed by the University of Pennsylvania study of 286 psychiatric patients who showed unprovoked rage; in that cohort 94% had some kind of brain damage.

This research correlates with studies by Dr. Dorothy Lewis of the NYU School of Medicine, and others, of 15 deat h row inmates in the American Journal of Psychiatry [143:7, July, 1986] and a separate study of 31 incarcerated delinquents reported in the Journal of the American Academy of Child and Adolescent Psychiatry [1987, 26, 5:744- 752]. There is no question that much violent crime can be traced to brain injury, especially in criminals who are repeatedly violent.

At the same time, not surprisingly, a nationwide survey has ranked California 31st among the states in the delivery of mental health services, a further decline form its 25th place two years ago. The survey by the National Alliance for the Mentally Ill, which was conducted by the Public Citizen Health Research Group, rates Los Angeles as having the worst public mental health services of any major city in the nation. Particularly striking was the report’s conclusion that 3,600 severely mentally ill inmates housed in Los Angeles County Jails comprise the "largest de facto mental institution in the nation."

There is no organized long-term system of community care for the traumatically brain injured. TBI patients without families or financial protection are relegated to the street or incorrectly diagnosed as mentally ill. For those with families, the families do not simply become care providers: they suffer an outrageous burdens that destroys families, causes siblings to leave home prematurely, and mandates that someone give up their life to care for the injured. All of this underscores the critical need for the testimony of the lifecare planner that will identify the services the survivor will require for life, but inaddition, the cost of providing on-going care and supervision for a lifetime that will prevent the survivor from suffering additional mistreatment by police, courts and corrections.

By mastering a thorough understanding of TBI the legal professional takes the first step towards providing both judge and jury with the knowledge necessary to understand, appreciate and provide for appropriate care for the traumatically brain injured.

It is hoped that by sharing the knowledge gained first hand from years of experience in representing survivors of TBI that the first step for others perhaps will be decidedly easier.

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