Traumatic Brain Injuries-A Brief Practitioner’s Guide

Article Provided by Michael Dalton

Attorney at

O’LEARY, SHELTON, CORRIGAN, PETERSON, DALTON & QUILLIN

Traumatic Brain Injuries-A Brief Practitioner’s Guide

The topic of traumatic brain injuries is so vast and expansive, one could go on for days detailing the specific ins and outs of causes, current statistics, symptoms, responses, recovery, and prevention.  This article provides a few practice pointers for the lawyer who desires to handle or is currently handling traumatic brain injury cases.

Look beyond Just Car Crashes and Slip and Falls

A traumatic brain injury (TBI) is typically caused by a blow, bump or some type of “jolt” to the head that disrupts the “normal function” of the brain and while TBI’s are typically caused by car crashes and falls,  TBI’s can also be caused by assaults, sports/recreation, lead poisoning, near drowning, lack of oxygen to the brain and carbon monoxide poisoning.[i]  A TBI lawyer should always be on the lookout for an injured client who may be suffering from a TBI.

Look for TBI’s During New Client Intakes

TBI’s are classified into three different categories, based on the degree if impairment: mild, moderate, and severe.  As a lawyer representing clients with TBI’s in personal injury cases, you will find that “mild” TBI’s are the most common (and the most difficult to diagnose).  As such, extra special care must be taken to fully investigate and determine if your client is suffering from a  mild TBI.  Most practitioners know to look for signs of a TBI when their client has lost consciousness, but the medical literature demonstrates that a person does not have to lose consciousness in order to suffer from a TBI. In fact, an injured person can suffer a TBI without actually having anything contact their head.  Diffuse axonal injury [DAI] is the “shearing (tearing) of the brain’s long connecting nerve fibers (axons) that happens when the brain is injured when it shifts and rotates inside the bony skull.”[ii]  DAI, or shearing, can happen due to rotational acceleration of the head and does not require any actual contact with the skull.  That is why it is important to screen all new clients for TBI’s the moment they walk into your office.

Some important things to look for/inquire about when meeting with a client are:

1. Do they respond with “I don’t remember or the next thing I remember”?
2. Have they been told by others that they are a different person now?
3. Ask a family member or friend of the client is different after the incident.
4. Did they have any positive test results (MRI, CT, EEG, Neuropsychological testing)?
5. Do they have any sleep issues (that they did not have before or that are worse now)?
6. Do they have ongoing headaches or migraines (that they did not have before or that are worse now)?
7. Do they have any issues with light sensitivity, sound sensitivity, dizziness, balance, memory, planning/organizing/executive functioning, mood/depression, anxiety, anger?

The above is not an exhaustive list, but it is a good place to start.

Look Beyond EMS and ER Records

Cognitive problems may not become evident for days, and in some cases weeks, after the incident.[iii]  The medical literature also confirms that it is not uncommon to review ER records and not find any notes reporting altered mental status, even when the patient “is later observed to suffer from fairly debilitating mental dysfunction.”[iv] Just because a client has a “normal” Glasgow Coma Scale (GSC), an unremarkable CT scan and no mention of headaches or head injury at the ER does not mean that your client has not sustained a TBI.

Look for Before and After Witnesses

When litigating TBI cases, perhaps the most crucial aspect that is often missed is the importance of before and after witnesses.  It is very difficult for your client to explain to a jury how their TBI has impacted their life.  The easiest way to demonstrate the devastating and ongoing damage your client has suffered is to have his or her friends, family and members of the general public (that interacted with your client before and after the TBI) testify about how the incident has changed your client’s life.  How is your client different today than they were before the TBI?  What sort of things does your client do now in order to try and function like they used to?  These are all things before and after witnesses can explain to a jury. Never underestimate the importance of before and after witnesses for your damages case.

Look for The Right Words

As the famous trial lawyer Keith Mitnik has so famously stated, “words matter.”[v]  It would behoove a lawyer practicing in the area of TBI’s to use the proper wording and by proper wording, I do NOT mean medical terminology.  Rather than saying “traumatic brain injury (TBI),” “concussion,” or “mild TBI,” when speaking to a jury, you should refer to your client’s injury as a “brain injury” or simply, “brain damage.” Defense lawyers and experts love to emphasize the fact that your client was diagnosed with a “mild traumatic brain injury” implying that the damage is only “mild” and not that big of a deal. When deposing medical experts, have them agree to refer to your client’s injury as a “brain injury” and confirm your client has suffered “brain damage.”   As always, focus group these terms to make sure they are resonating with your audience, but these key words are a good starting point.

Look for Help

If you are a young lawyer or a lawyer who has never worked up a TBI case, don’t be afraid to look for a more experienced lawyer to help you out.  TBI cases are very different from most injury cases and a little help from someone who has been down this road before will go a long way to maximizing your client’s results.

[i] https://www.cdc.gov/traumaticbraininjury/get_the_facts.html

[ii] https://www.hopkinsmedicine.org/health/conditions-and-diseases/traumatic-brain-injury#:~:text=Diffuse%20axonal%20injury%20is%20the,different%20parts%20of%20the%20brain.

[iii] Lezak, M. D., Howieson, D. B., Bigler, E. D., & Tranel, D. (2012). Neuropsychological assessment (5th ed.). Oxford University Press. Pg. 204.

[iv] Id.

[v] Mitnik, Keith. Don’t Eat the Bruises. (1^st ed.). Trial Guides, LLC.  (2015).