Brain Injury Law

Brain Injury Overview

Traumatic brain injury is a complex injury encompassing a broad spectrum of symptoms and disabilities. The effects of a brain injury may be severe and apparent immediately. Examples include slurred speech, difficulty walking and seizures. In many cases, however, the effects of a brain injury are subtle at first. But, over time, symptoms such as short-term memory loss, vision impairment or behavioral changes become apparent. Often the family of the brain injury patient is the first to notice symptoms. Brain injuries are one of the most common causes of disability and death in adults.

Portland Brain Injury Lawyer

Types of Brain Injuries

Brain injuries include the following:

Concussion, an injury that is caused by a sudden blow to the head or to the body. The blow shakes the brain inside the skull, which temporarily prevents the brain from functioning normally. Most people fully recover from concussions within a few hours to a few weeks. However, concussions can cause more serious problems. Repeated concussions, or a severe concussion, can cause long-term problems including: physical, such as headaches; cognitive, such as difficulty concentrating or remembering; and emotional or behavioral problems, such as irritability.

Post-concussion syndrome, also known as post-concussive syndrome or PCS, is a set of symptoms that may persist for weeks, months or occasionally up to a year or more after a concussion. Historically called shell shock, post-concussion syndrome is a complex disorder accompanied by a variety of symptoms that can include: headaches; dizziness; fatigue; irritability; anxiety; insomnia; loss of concentration and memory; and sensitivity to noise and light. The nature of PCS and the diagnosis itself have been the subject of considerable debate among health professionals.

Skull fracture a break in the skull bone. There are four major types.

  • A linear skull fracture is the most common. In a linear skull fracture, there is a break in the bone, but the bone does not move.
  • A depressed skull fracture occurs when part of the skull is displaced inward. This type of fracture usually is caused by blunt force trauma, such as getting hit with a hammer or rock, or getting kicked in the head. Depressed skull fractures carry a high risk of increased pressure on the brain.
  • A diastic skull fracture occurs along the suture lines in the skull. In this type of fracture, the normal suture lines are widened. Diastic skull fractures usually are seen in infants and young children because the sutures are not yet fused.
  • A basilar skull fracture involves a break in the bone at the base of the skull. This type of fracture requires more force than the others and is the most serious. Patients with this type of fracture frequently have blood in the sinuses, a clear fluid called cerebrospinal fluid (CSF) draining from the nose or ears, bruises around the eyes, and a bruise behind the ears.

Intracranial hematoma (ICH) occurs when a blood vessel ruptures in or around the brain. A blood clot compresses brain tissue. The different types are classified by the location in the brain:

  • An epidural hematoma is a blood clot that forms underneath the skull, but on top of the dura matter, the tough, outermost membrane that surrounds the brain. Natasha Richardson, the actress that fell while taking a ski lesson at the Mont Tremblant Resort in Quebec, died from an epidural hematoma caused by a seemingly minor blunt impact to the head.
  • A subdural hematoma occurs when a blood clot forms beneath the skull and the dura, but outside of the brain.
  • A contusion or intracerebral hematoma is a bruise to the brain itself rather than the outside of it.

Closed head injury occurs when the brain is damaged due to external mechanical force and the brain is not exposed. A penetrating, or open head injury, occurs when an object pierces the skull and breaches the dura matter, the outermost membrane that covers the brain.

Coup-Contrecoup Injury occurs when the head is moving and strikes a fixed object. A coup injury occurs at the site of impact, and a contrecoup injury occurs at the opposite site. Due to inertia, the brain is thought to bounce off the inside of the skull and hit the opposite side. Coup-contrecoup injuries also can be caused by acceleration or deceleration alone with no impact. These injuries are associated with cerebral contusion.

Diffuse Axonal Injury is one of the most common and devastating types of traumatic brain injury. Diffuse axonal injury is the result of shearing forces that occur when the head is rapidly accelerated or decelerated. Extensive lesions occur over a widespread area. The lesions disrupt axons, the neural processes that allow one neuron to communicate with another. Diffuse axonal injury can occur in every degree of severity from mild to moderate to severe. It is one of the major causes of unconsciousness and persistent vegetative state after head trauma.

Secondary Brain Injury is brain damage that evolves over time after the trauma, and may include:

  • Bleeding inside the skull (intracranial hemorrhage).
  • Brain swelling (edema).
  • Increased pressure inside the skull (intracranial pressure).
  • Brain damage associated with lack of oxygen.
  • Infection inside the skull, common with penetrating trauma.
  • Chemical changes leading to cell death.
  • Increased fluid inside the skull (hydrocephalus).

Classification

Traumatic brain injuries are classified as mild, moderate or severe. The Glasgow Coma Scale (GCS) is used to objectively evaluate the conscious state of all acute trauma patients. The GCS assigns a point value on a scale of 3 to 15 based on responses to verbal, motor and eye-opening stimuli. A head injury with a GCS of 13 or above generally is considered mild, 9 to 12 is considered moderate, and 8 or below is severe.

Most traumatic brain injuries are classified as mild. A mild traumatic brain injury (MTBI) is a traumatically induced physiological disruption of brain function as manifested by at least one of the following:

1. any period of loss of consciousness;

2. any loss of memory for events immediately before or after the accident;

3. any alteration in mental state at the time of the accident (e.g., feeling dazed, disoriented, or confused); or

4. focal neurological deficit(s) that may or may not be transient but where the severity of the injury does not exceed the following:

a. loss of consciousness of approximately 30 minutes or less;

b. after 30 minutes, an initial Glasgow Coma Scale (GCS) of 13-15; and

c. post-traumatic amnesia (PTA) not greater than 24 hours.

This definition was developed by the Mild Traumatic Brain Injury Committee of the Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine (1993). Definition of mild traumatic brain injury. Journal of Head Trauma Rehabilitation, 8(3), 86-87. Similar definitions of MTBI have been developed by the Defense and Veterans Brain Injury Center.

A moderate traumatic brain injury generally is defined as:

  • Loss of consciousness of 30 minutes to less than 24 hours;
  • After 30 minutes, an initial GCS of 9-12; or
  • Post-traumatic amnesia of more than one but less than 7 days.

A severe traumatic brain injury generally is defined as:

  • Loss of consciousness of more than 24 hours;
  • After 30 minutes, an initial GCS of 3-8; or
  • Post-traumatic amnesia of more than 7 days.

Different organizations use different classification systems. For example, under the Mayo Head Injury Classification System (2007), a traumatic brain injury is classified as Moderate-Severe (Definite) TBI if one or more of the following criteria apply:

1. Death due to this TBI.

2. Loss of consciousness of 30 minutes or more.

3. Post-traumatic anterograde amnesia of 24 hours or more.

4. Worst Glasgow Coma Scale full score in first 24 hours (unless invalidated upon review, e.g., attributable to intoxication, sedation, systemic shock).

5. One or more of the following present:

a. Intracerebral hematoma,

b. Subdural hematoma,

c. Epidural hematoma,

d. Cerebral contusion,

e. Hemorrhagic contusion,

f. Penetrating TBI (dura penetrated),

g. Subarachnoid hemorrhage, or

h. Brain stem injury.

Causes of Traumatic Brain Injury

Common causes of traumatic brain injury include:

  • Car Accidents
  • Motor vehicle accidents
  • Truck Accidents
  • Bicycle accidents
  • Pedestrian accidents
  • Falls
  • Assaults, gunshot wounds, and other violence
  • Sports accidents
  • Playground injuries
  • Construction and other work place injuries
  • Child abuse, including shaken baby syndrome

Symptoms

Traumatic brain injury symptoms can be divided into several broad categories: physical, cognitive, behavioral, and emotional.

Physical symptoms of traumatic brain injury include:

  • Loss of consciousness
  • Vomiting
  • Severe headache
  • Changes in sleep patterns
  • Sensitivity to light
  • Blurred vision
  • Dizziness
  • Difficulty walking
  • Loss of coordination
  • Weakness in one side or area of the body
  • Slurred speech

Cognitive symptoms of traumatic brain injury include:

  • Memory loss
  • Confusion
  • Trouble with concentration, attention or thinking
  • Reduction in rate of information processing (processing speed)
  • Deficits in ability to organize, prioritize and execute plans (executive functioning)

Behavioral and emotional symptoms of traumatic brain injury include:

  • Irritability or short fuse
  • Depression
  • Social withdrawal
  • Decreased attention to hygiene
  • Changes in appropriate social behavior
  • Deficits in social judgment
  • Deficiency in identifying, understanding, processing and describing emotions
  • Personality changes

Diagnosis and Treatment of Traumatic Brain Injury

The diagnosis of a traumatic brain injury is made following a physical examination and diagnostic testing. During the examination, the physician obtains a detailed medical history of the patient and information about how the injury occurred. Diagnostic tests may include:

  • Blood tests
  • X-rays
  • Computed tomography (CT or CAT scan)
  • Magnetic resonance imaging (MRI)
  • Electroencephalogram (EEG)
  • Positron emission tomography (PET scan)
  • Transcranial doppler

A neuropsychological assessment may be performed to evaluate cognitive function and impairment. The assessment may be used to aid in planning physical and occupational rehabilitation.

Treatment of a traumatic brain injury is individualized, depending on the nature and extent of the injury. The outlook for a patient depends in part on acting fast to obtain immediate emergency treatment. In the acute stage, the primary goal is to stabilize the patient and prevent further injury since little can be done the reverse the damage caused by the initial trauma. Rehabilitation is the main treatment for the chronic stage of recovery.

The goal of rehabilitation is to improve independent function at home and in the community, and to help the patient adapt to disabilities. Most rehabilitation centers utilize a multi-disciplinary approach with a team of health professionals that specialize in traumatic brain injury. Psychiatrists, who specialize in physical and rehabilitation medicine, typically are the primary treating physicians. The multi-disciplinary team may include specialists from neurology, psychiatry, neuropsychology, psychology, occupational therapy, physical therapy, speech and language therapy, and cognitive therapy.

Brain Injury Claims

Brain injury claims present special considerations. As an initial matter, the victim may have suffered memory loss and, therefore, cannot remember the trauma-inducing event. If there is a dispute over who is at fault, the victim can be at a disadvantage.

Equally important, diagnostic studies, such as MRI, CT or EEG may not detect traumatic brain injuries, particularly those classified as mild. Diffuse axonal injuries frequently escape detection. Indeed, a diffuse axonal injury can be severe enough to result in death, yet an MRI may be interpreted as within normal limits.

People suffering from mild TBI tend to look normal on the outside to the casual observer. It can be a challenge to convince a jury that a person is seriously injured when there is no visible injury and no objective test data to support the diagnosis.

Defendants frequently claim that the plaintiff does not have a brain injury at all and, instead, is suffering from a psychological or emotional condition. The plaintiff also may be accused of exaggerating their symptoms or outright lying for financial gain.

Testimony from an experienced neuropsychologist is essential when a traumatic brain injury cannot be detected by diagnostic studies like MRI. The neuropsychologist can explain the injury based on the results from a battery of tests that assess perceptual, motor, verbal, memory and cognitive functioning.

Defendants usually employ their own neuropsychologist to discredit the one that testifies for the plaintiff. A typical defense is that there is no pre-injury, baseline testing of the plaintiff. Therefore, the argument goes, it cannot be said whether any deficit identified by neuropsychological testing was caused by trauma or, instead, relates to a pre-existing condition. Defendants also may claim that the plaintiff manipulated test results, or that deficits reflect unrelated medical conditions or the effects of medication.

To combat these defenses, it is essential for the plaintiff’s neuropsychologist to be well prepared for a vigorous cross examination by the defendant’s lawyer. Among other things, the neuropsychologist must be able to confirm plaintiff’s baseline function by reviewing pre-injury medical, psychological, vocational and academic records. The neuropsychologist also must account for all non-brain injury factors that may negatively affect the plaintiff’s test performance.

Finally, to prevent the trial from becoming a battle solely between medical experts, it is critical for the plaintiff to present testimony from family members, friends, employers and others in the community that can substantiate the effects of the plaintiff’s brain injury.

Brain injury claims are complex from both a legal and medical standpoint. The challenges associated with successfully pursuing such claims certainly do not preclude recovery. However, it is essential to retain the services of an experienced brain injury lawyer to maximize your chances of success.

Rob Kline is available to discuss your injury and legal rights. Call today or request a confidential, free case evaluation.