Handling a Brain Injury Case by Charles Gluckstein
The most complex case a plaintiff's lawyer can face is one where his client suffers a brain injury as a result of an accident. It is difficult because 9 out of 10 traumatic brain injury cases involve injuries that are not visible to ordinary people. So how will a jury believe that your client suffered a brain injury?
Obviously there are the straightforward brain injury cases where the plaintiff suffered a fracture to his or her skull and all agree that there was organic damage which is causing the plaintiff's symptoms.
The problems lie in the case where the physical damage does not show up on CT scans or MRI's. The plaintiff often looks normal, and this appearance can be terribly deceptive. He or she may speak well, and this is an even greater problem to overcome. But the brain, like an atom if broken or split, causes an explosion of misery and pain that is horrendous. When the brain is damaged, there is no tool available for the surgeon to fix it. We depend on nature and the ability to compensate.
Family and friends of the person who suffered a brain injury will feel the devastation sometimes as much or more than the injured party.
The overall objective for a lawyer in a brain injury case is to convince a jury that an organic injury has occurred, that it is permanent, and that it is the main reason for your client's impairment.
When the client visits the lawyer for the first time, the lawyer usually has little or no information about the case. These first meetings are extremely important. Both the client and the lawyer have to like each other right away. Clients, for the most part, are not familiar with the intricacies of the legal system and don't know the lawyer, so they are usually a little apprehensive and uneasy. The lawyer, being familiar with the system and cases like this one, should help put the client at ease.
During the interview, the lawyer thinks of two main issues in an accident case: liability and damages; whereas a client may be thinking of any number of things and is anxious just to tell the entire story. Therefore, the lawyer in an initial interview must be a good listener as well as a persuasive speaker.
Once mutual trust is established, the client and lawyer can work well together.
Finally, the lawyer should satisfy himself or herself that the client has a genuine injury by examining the most reliable evidence. It is essential to speak to the family members and friends closest to your client in order to find out how your client was before the accident. In brain injury cases, you will often hear that your client was high functioning before the collision and now is unable to concentrate in a busy environment. They may also tell you that your client is no longer the same person, lacks motivation and fatigues easily. Finally, you are told that your client's personality has changed, gets frustrated easily and lacks confidence, traits rarely displayed before this accident.
Acquiring Documentation
In building your case for trial, you must obtain all relevant records relating to your client's accident. In brain injury cases, a lawyer will have to assemble massive amounts of documentation. Medical, employment, school and accident benefits documentation will comprise the bulk of such evidence. From the outset, the lawyer must thoroughly investigate the facts surrounding the case.
Evidence of Vehicular Damage
Whenever your client's or the defendant's vehicle is obviously damaged, photographs of the vehicle's damage are powerful. Photos may have been taken by witnesses, newspapers, the client, family members, police or the insurance company for property loss insurance. Any obvious damage to the interior of the car caused by your client's head should be demonstrated visually and discussed by every witness who can do so.
If there is no vehicular damage, a biomechanical engineer, supported by a reconstruction engineer's estimate of speeds, can explain how the force of the collision can cause a brain injury notwithstanding minimal damage.
Photos of Injuries
Not surprisingly, jurors find it easier to believe the brain is injured if the head or face is injured. Not infrequently, there are very early photos available which record black eyes and cuts to the head. These photographs are important corroborative evidence which are especially effective when enlarged or when projected.
Ambulance Call Report
The first record to review is the Ambulance Call Report. If the Ambulance Call Report contains any evidence which demonstrates a brain injury, it presents demonstrative evidence which is objective. This evidence, once shared with a Court, will be important for describing your client's condition shortly after the accident.
Every expert who comments on your client's injuries will refer to the Ambulance Call Report and this is why this document may be one of the most important pieces of evidence in the case.
Hospital Records
Next, the emergency records of the hospital where the client was taken must be carefully reviewed. The records will contain the initial history taken and nurses' notes and assessments while at the hospital. Records that indicate a low Glasgow Coma Scale score or disorientation will help demonstrate the continuation of the injury at the hospital. Oftentimes a patient with an acquired brain injury may become violent or aggressive to the hospital staff, which can demonstrate a frontal lobe injury.
Hospital records can also be used to demonstrate the consistency of symptoms of your client. For example, if your client complains of headaches and the nurses' notes reveal the same complaint; this can be compared to your client's later complaints to other specialists.
From the time of a patient's arrival at the ER through follow-up treatment, a wide variety of complicated testing can be done to help demonstrate the brain injury.
There are two types of neurological tests: those that examine the structure of the brain and those that examine the function of the brain. The CT scan and MRI look at the structure of the brain. The electroencephalogram (EEG), SPECT scan (Single Photon Emission Computed Tomography), PET scan (Positron Emission Tomography) and evoked studies examine the function of the brain.
Referral to an Expert
While the plaintiff has probably seen a number of experts since his or her accident, there are often occasions where the plaintiff has not seen the appropriate medical care provider. For this reason it may become necessary for solicitors to refer their clients to additional experts for further clinical evaluation.
Oftentimes while proving that your client's injuries are caused from an acquired brain injury, a lawyer will retain a neuropsychologist. Test results are open to interpretation and debate. If the client moves about normally, speaks articulately and looks perfectly healthy in the structured environment of the courtroom you can expect the defence experts to disagree with your experts.
Other experts will be retained who are not part of the medical treatment team, some of which may include vocational experts, life care planners and even economists.
Discovery
Before a case goes to trial, the lawyers for both parties know not only the case but also the other side's position on all the issues. The system is designed to prevent surprises. In the discovery phase, a lawyer will ask questions under oath of the adverse party. This form of oral testimony provides both the plaintiff and defendant with the clearest view of anticipated trial evidence. The views of the deponents become "locked down" and difficult to alter later during trial.
With a brain injured client it is important to remind them that all questions put to them are assumed answered as if they have a complete and accurate recollection of the evidence. Often the opposite is true. The lawyer representing a brain injured client must take time in advance to prepare their client for this examination so that the evidence is not misconstrued.
Keep in mind that the defence will attempt to use the Examination to undermine your client's credibility by obtaining admissions, which are contrary to your case or commit your client's evidence so that it can later be contradicted through expert opinions or surveillance.
Lay Witnesses
Lay witnesses are people who have known the plaintiff both before and after the date of injury. These include family members, friends, neighbours and co-workers of the plaintiff who help to validate the testimony of the plaintiff and the experts during a trial. These witnesses can be very persuasive because their testimony is easily understood and can often describe the plaintiff's subtle injuries vividly.
Developing a Theme
The theme is the word or phrase that constantly reappears in the litigation to focus the jury's attention upon what the case is really about. Selecting one or more themes is of crucial importance. Themes are like magnets, which constantly attract notice. In formulating trial themes, lawyers should focus upon facts, which may be expressed using high impact language, and illustrated by high quality demonstrative evidence. Themes that emphasize "quality of life" issues tend to dominate the brain injury cases because of the severe impact a brain injury may have upon the lives of individual plaintiffs.
Settlement before Trial
Most times cases settle prior to trial. After a suit is filed and the case proceeds, but before the trial begins, the parties can agree to settle. If that occurs, then one side agrees to pay a sum of money to the other, and the other side agrees to accept it as payment in full for the injuries suffered. Usually a settlement is a good thing. In a settlement, no one loses. The insurance company pays something, maybe a little less than expected by the plaintiff, but the risk of a trial is avoided.
The Overall Challenge in a Mild Brain Injury Case
Most insurance adjusters and defence lawyers take a jaundiced view of mild traumatic brain injuries. Some have commented that it represents the "whiplash of the new millennium". Despite this cynical approach, the lawyer taking on a brain injury case must look for proof of an organic injury in order to defeat the following standard defences:
No loss of consciousness: Plaintiffs who sustain mild brain injuries often do not experience true loss of consciousness. Expert witnesses will help present evidence that loss of awareness, confusion or dizziness as a result of trauma can cause significant neurological problems.
The impairment was pre-existing from long standing pre-accident emotional problems.
The injury, if there is one, is only an emotional one that can be cured through treatment.
Negative neuro-imaging results: The absence of positive findings by examinations such as a CT scan or MRI should not be treated as evidence of a lack of injury.
The client is malingering: Defence counsel will insist that the plaintiff is intentionally producing false or exaggerated symptoms motivated by the desire to obtain financial compensation through litigation.
Trial
If the sum of money offered by the insurance company in not accepted by the plaintiff, then the matter will proceed to trial. A trial is a risky venture: one side may win a lot of money or get nothing. In any event, the costs of a trial can be extremely expensive for the loser.
If you are to persuade the jury that an injury has occurred, you must find a way to overcome the appearance of normalcy as the plaintiff gives evidence. One way to do so is to graphically explain the mechanism of injury so that the jury can appreciate that the brain can be permanently injured without any permanent change to the appearance of the head or face. There is no more effective way to explain the mechanism of injury than to show it, either through the use of medical-legal illustrations, animations or other artwork.
The lawyer undertaking such cases should be familiar with the long-term consequences of brain injury. If the lawyer does not cover all facets of the case with appropriate witnesses and other evidence, he will do himself and his client a great disservice.
About the Author
Charles Gluckstein of Gluckstein & Associates LLP restricts his practice to insurance litigation including personal injury, disability matters, occupier's liability issues, product liability and medical malpractice. He is involved in assisting many organizations such as the Canadian Paraplegic Association Ontario, the Ontario Brain Injury Association and the Toronto Rehabilitation Institute.
