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Amnesia and the Law

Kenneth I. Kolpan, JD (Editor)

The majority of head injuries occur as a result of motor vehicle accidents, sports injuries or defective products for which someone else may be responsible. Since lifelong rehabilitation care for a person with head injury is costly and not always covered by health insurance, many head-injured persons look to agencies and the courts for compensation. They pursue an administrative governmental hearing to obtain government benefits such as social security, disability insurance, or workers' compensation. They may also file a lawsuit in court to get personal injury compensation. Both courses involve litigation, which is fraught with obstacles. For the head-injured person, the litigation routes are even more difficult because of memory problems. The memory problems, which are discussed elsewhere in this journal, make the head-injured person his or her own worst witness: the person usually cannot remember the accident, acts in a bizarre or confusing fashion after the accident, and eventually appears at the trial in good health. A few examples follow.

A 14-year -old girl was riding her bicycle on a county road in Massachusetts when she was struck from behind by a truck. She suffered a significant head injury and sustained permanent injuries. She sued the trucking company for future lost wages, past and future medical bills, and pain and suffering. As in any personal injury lawsuit, she had to prove that the defendant driver was negligent. As a result of her head injury,, the girl was unable to remember any fact of the events immediately prior to, during, and after the accident. Though the accident occurred at 5:00 p.m., the last thing she could remember was going to school at 8:00 Am that morning. The next thing she remembered was being in the hospital several days later. The driver claimed that the girl had cut in front of his truck, causing the accident. Because of her retrograde memory deficit, she was at a distinct disadvantage in contradicting the defendant's version of the accident.

A criminal case demonstrates how post-traumatic amnesia (PFA) from a head injury can have serious effects on a head-injured person's legal rights. In this recent murder case I a man struck his head against a lamp during a barroom fight. A short time later he shot two assailants. When the police arrived, he made several statements that were later introduced at his trial. In those statements the defendant confessed to shooting one of the victims, but his statements were inconsistent in that he incorrectly named the victims and their race. The posttrauma statements were at variance with other eyewitness testimony about how the crime occurred. The head-injured defendant attempted to provide evidence at trial from a neurologist and a neuropsychologist to show that his head injury was a mental illness as a result of which he was not criminally responsible for the murder. His statements after the crime were proposed as examples of how the head injury affected him. Yet it appears the statements were interpreted as a confession to the crime rather than a defense. The judge excluded the expert testimony of the neuropsychologist regarding the criminal responsibility issue, stating that evidence was insufficient to raise the insanity defense. An appellate court has reversed the lower court and has held that testimony of the neuropsychologist was wrongfully excluded because it had bearing on the issue of criminal responsibility. The case has been returned to the trial court for a new trial.

Retrograde and posttraumatic memory deficits cause problems when the head-injured person must testify. The head-injured person appears substantially better in the controlled environment of the courtroom where questions are asked in an orderly manner. Without the distractions of other conversations, telephones, radio, etc., the head-injured person is able to reasonably recall events. The jury has a difficult time reconciling the apparent discrepancy between the head-injured person's present condition and his impaired memory of events before and after the accident (as reported in neuropsychological tests and medical records). Expert testimony from professionals familiar with head injury is necessary to explain this discrepancy. "A day-in-the-life" film of the defendant's rehabilitation treatment preceding the hearing or trial is also helpful. Better vet is a videotape of the head injured person undergoing neuropsychological testing. For the head-injured person to obtain his legal rights, the agency head or jury must understand that the witness can still be significantly impaired although he or she appears cognitively intact.

Most rehabilitation professionals appreciate that the duration of retrograde and post-traumatic amnesia has prognostic and diagnostic value. One must also be aware that when the head-injured person is involved in litigation, these same memory deficits substantially hinder his or her legal rights. Experts familiar with memory impairments in the head injured must be willing to participate in the legal system and not only explain the predictive value of the memory loss but help judges and juries understand the true nature of the memory phenomena so the head injured are ensured their legal rights.


1. Commonwealth v Monico, 396 Mass 1193, 488 NE2d 1168 (1986).