Brain Damage in Personal Injury Cases
When someone suffers brain damage, the personal injury lawsuit that results can be a complicated case. There are a number of reasons for this. First and foremost, it can be difficult to diagnose brain damage as it is frequently related to the person’s cognitive ability. The question, then, is how much ability did the individual have prior to the accident/injury? If the injured person claims cognitive deficits, can they be proven to be a result of the accident?
From a medical perspective, the diagnosis may not be definitive. CT scans, EEGs, and MRIs do not always show the full extent of brain damage. If that’s the case, it is then the burden of the injured party (plaintiff) to prove the deficits, which can consist of behaviors as difficult to pinpoint as personality changes/mood swings, depression, memory loss, fatigue, and sudden problems with language, math, and/or concentration. The more subtle these changes, of course, the harder they are to prove. Even more physical symptoms such as headache, vomiting, seizures, blurred vision, dizziness, and tinnitus can be challenging to attribute to brain damage. Yet, even small changes can have a profound effect on someone’s life.
If this individual has had any learning disabilities, mental illness, or addictions, it will be even more difficult to prove responsibility on the part of the defendant. The attorneys for the alleged responsible parties will do their best to prove that the deficits are a result of these prior issues rather than the accident itself. Even if the plaintiff has been under a significant amount of recent stress, the defendant’s attorneys may allege that it is the stress and not the head trauma that accounts for the symptoms.
If the brain damage is established as fact, vocational experts must be called upon to assess the plaintiff’s capacity for work. In the cases of severe injuries, a life care planning expert may be needed to determine the amount of money required to care for a person who can no longer care for him or herself. A legal guardian might have to be appointed, for instance, to make sure that the plaintiff is safe throughout his or her life.
For example, according to an article in Business Week from April 2013, 4,000 retired football players demanded in a class action lawsuit that the National Football League (NFL) provide them with compensation for brain damage suffered on the job. The NFL, however, claims that medical science has not yet proven that this damage is the result of playing football.
Unfortunately, brain damage is not uncommon in many sports, and medicine is only now recognizing symptoms that went unnoticed or improperly diagnosed in the past. In fact, many have called traumatic brain injury or TBI a “silent epidemic” because the long-term effects of head trauma are only beginning to become known. Now, as lawsuits claiming these injuries become more prevalent, their “popularity” has led to a great deal of skepticism and worries about fraudulent claims.
Symptoms of Brain Damage
In the past, it was believed that brain damage could not occur unless the injured person lost consciousness after the head trauma. Now, we know that people can indeed suffer brain damage without losing consciousness, although some doctors have still been slow to recognize this fact. According to the Centers for Disease Control and Prevention (CDC) based on recommendations from the American Congress of Rehabilitation Medicine, mild traumatic brain injury (MTBI) has occurred if at least one of these symptoms is present:
- Transient confusion, disorientation, or impaired consciousness.
- Dysfunction of memory.
- Loss of consciousness for less than a half hour.
Neurological dysfunction that alone does not spell traumatic brain injury, but coupled with other symptoms can support the diagnosis, especially when the injured person did not suffer a loss of consciousness after the head injury:
- Acute seizures
- Irritability, lethargy, or vomiting in young children and babies
- Headaches, dizziness, irritability, fatigue, and/or concentration problems
Traumatic brain injuries are categorized as open head injuries or closed head injuries. Closed is the most common, of course, which is due to trauma that has not penetrated the skull or caused a gash of any kind. While head injuries may also be classified as mild, moderate, or severe, the guidelines for these assessments are based on the initial symptoms and diagnoses. The problem is that symptoms may not show up right away.
The Glasgow Coma Scale (GCS), however, is now sometimes used to assess eye, verbal, and motor responsiveness. The results have been shown to be a fairly accurate indication of the long-term effects of a particular individual’s brain damage.
If a brain damage lawsuit proceeds to a jury trial, the plaintiff will also be at the mercy of the average person’s concept of what a brain damaged person looks like and how such a person behaves. These concepts are rarely accurate, as brain damage is not always readily apparent.
Causes of Brain Damage Other Than Head Trauma
Brain damage is also not always the result of head trauma. In one such difficult to prove case, a toddler experienced developmental delays. When the child was tested by doctors, the levels of lead in her system were found to be very high. The lawsuit claimed that the lead was introduced into the toddler’s body via paint in toys and damages were sought against a toy manufacturer.
Brain damage can also occur as a result of medical malpractice, usually during childbirth or surgery, although it can happen from misdiagnoses, treatment delays, improper anesthesia given before surgery, an infection that occurs after surgery, improper or too much medication, or failure to diagnose a brain hemorrhage or brain tumor. Babies born with brain damage due to physician error may be diagnosed with cerebral palsy, which usually affects movement but not cognitive ability. For example, an individual with cerebral palsy may be somewhat physically disabled but able to proceed to advanced education.
As you can see, brain damage personal injury lawsuits can be multifaceted and, therefore, often require a number of medical, legal, and vocational experts in order to reach an agreeable settlement between the parties.
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