Proving the Often Overlooked, Undervalued Head Injury Case

By KENNETH I. KOLPAN

Suppose a 33-old man walks in your office, is pleasant and engaging and asks you to represent him. He appears to speak coherently as he explains that he is gainfully employed an a bagger at a local supermarket, and that he drives to work every day despite having had an injury to his head some 12 years ago. He tells you he was standing on the elevated blades of a forklift in 1982 when the operator lowered the blades and they precipitously dropped, causing him to fall 8 to 10 feet and land on his head. You notice that his only physical problem seems to be a slight scar an his forehead. He has sued the equipment leasing company that rented the forklift to his employer. You are surprised to find out that he sustained a severe brain injury, that he was in a coma for several days, and had a partial, frontal lobectomy. From your interview with him, it appears either he made a miraculous recovery or he was not that seriously injured.

Neither is true: he has an injury that is difficult to understand, let alone prove.

Traumatic brain injuries occur not because a persons head or skull is necessarily injured, but because forces exerted on the outside of the skull cause the brain to move rapidly within the confines of the skull, tearing, shearing and bruising areas of the brain with the inside surface of the skull. Further brain damage may occur from bleeding and/or edema, causing an increase in intracranial pressure.

Signs And Symptoms

To avoid overlooking potential head injury cases, a lawyer must understand the Anatomy of the skull as well as how closed head injuries occur. Signs and symptoms in records and statements should tip off the attorney of a possible closed head injury. For example, in an automobile accident, counsel should determine: 1) what direction the person's head moved, 2) how rapidly the head moved; 3) whether or not the clients head struck anything within the vehicle; and 4) from which direction forces were directed.

Cases are often overlooked because attorneys mistakenly believe that the clients head must come in contact with the windshield, headrest or dashboard for there be a head injury. The forces on the brain, not the impact of the skull, is what distinguishes a closed head injury. Do not rule out a head injury case if the skull has not hit an obstruction. There are different kinds of head injury.

How the injury occurred may be difficult to ascertain from the client since many clients suffer amnesia for events before, during and after the accident. An example of this phenomenon recently occurred when Dallas Cowboy Quarterback Troy Aikman was knocked out of the NFC championship game with a concussion. Aikman could not remember how the injury occurred nor what had happened from the beginning of the game until the third-quarter when he was injured. Even when Aikman saw video tape of the first half of the game, including touchdown pass he threw, he was unable remember any of it.

You may show your client statements, photographs and reports, but if they amnesic for the event, your client may be unable to recall some of the incident. In the forklift case, the client did not remember much of what occurred. Only during my interview did he state that what he knew of the incident was what he learned from others. Counsel must check secondary sources for information about circumstances of the accident and the impact on the client, such as his behavior after the event.(speech, thinking, memory and judgment).

Witnesses, medical records and police reports must be scrutinized for indicia of closed-head injury. Typically, lawyers focus on loss of consciousness (LOC), which is sometimes but not always present. LOC may not be documented because of who makes the report and who provides the data, or because the person did not appear to be unconscious or the period of unconsciousness was brief, albeit significant. The severity as well as the kind of symptoms vary with the nature, location and extent of head injury.

By the time an attorney evaluates whether there is a head injury case, the client may already appear normal with some complaints of headaches, memory problems or difficulty thinking. Counsel may miss a potential case if X-rays, CT scans, MRI's, EEGs or neurological exams are all normal. These diagnostic tests though helpful, may not rule out a head injury because of the nature of the injury, the nature of the test and/or the time when the tests were administered.

Counsel may recognize a closed head injury but overlook its significance because head injuries are defined as "minor, moderate or severe." These descriptive terms do not mean the legal came is correspondingly minor, moderate or severe. Several years ago, a Norfolk County jury awarded my client $2.8 million plus interest in a case where the plaintiff was dazed after being struck by a 400-pound door. She been diagnosed with a "minor" head injury. On the other hand, a potential client may sustain a severe head injury as defined by medical criteria and make sufficient recovery so that is appears that there is little, if any, effect on the client.

Serious head injury cases may not only be overlooked, but if recognized they may be undervalued. Attorneys should be familiar with which symptoms are significant in the clients prognosis. If a person had a period of unconsciousness, the attorney should understand the different coma scales, neurological assessments, memory tests and speech-language evaluations appreciate the seriousness of the traumatic brain injury.

Cases can also be missed because many tests are normal, including a substantial part of neuropsychological tests, and symptoms of head injury do not manifest for some time. For example, seizures may not appear for years. Yet, a closed head injury is not an inherently unknowable injury which tolls the Statute of Limitations. Counsel could reject a potential case because the symptoms are not manifest or readily apparent. Even if a case is pursued, the full extent of damages may not have been discovered though the increased risk for those damages is present. In Var ALetyne V. Whalen, 15 Mass App. 340, 346-47 (1983), the plaintiff had epileptic seizures almost three years after he sustained a serious head injury and 10 days after judgment for the plaintiff was entered. Though plaintiff's judgment on damages was vacated and remanded, the case is a warning to those who handle closed head injury matters whether the case is tried or, more likely settled, that all potential damages must be considered.

Potential Complications

If a head injury case is recognized, an attorney may overlook the many potential complications including cognitive deficits, heterotopic ossification, seizures, executive function limitations, disinhibitions, emotional liability, speech problems, physical limitations, vision complications, smelling disorders and balance disturbances. Proper treatment and evaluation of a potential client with a closed head injury is crucial to documenting and discerning what effect the injury has had on the patient. The evaluation will alert counsel to the specific areas of disability and of increased risk.

An evaluation by a qualified neuropsychologist familiar with head injury is essential. A neuropsychologist's battery of tests over a number of testing sessions will provide objective data establishing the existence, nature, cause, effect and permanence of the head injury. The battery of tests will measure how various brain functions are affected by the injury. Understanding the objectives and limitations of neuropsychology will assist an attorney in deciding whether or not to pursue a closed head injury case. A neurologist and orthopedist familiar with head injury should address the neurologic and orthopedic consequences from this type of injury

The data from the above specialist often will be at variance with the physical appearance of the client. In order not to miss the head injury case, an attorney must understand the significant signs of a head injury, which diagnostic tests may be normal and consistent with a head injury, what roles the members of the rehabilitation team (speech-language therapist, neuropsychologist, physiatrist, neuropsychiatrist, neurologist, neurosurgeon, rehabilitation nurse, occupational therapist and life-care planner) and others have in the identification, assessment and explanation of the often overlooked head injury case.

Published with permission of Massachusetts Lawyers Weekly.