When someone suffers brain damage, the resulting personal injury lawsuit can be a complicated case. There are a number of reasons for this. First, it can be difficult to diagnose brain damage, as it is often related to a person’s cognitive ability. The question, then, is how much skill did the individual have prior to the accident/injury? If the injured person claims to have cognitive deficits, can it be proven that they are the result of the accident?
From a medical perspective, the diagnosis may not be definitive. CT scans, EEGs, and magnetic resonance imaging (MRI) do not always show the full extent of brain damage. If that is the case, then it is the burden of the injured party (plaintiff) to prove the deficits, which can include behaviors as difficult to pin down as personality changes, mood swings, depression, memory loss, fatigue, and sudden problems with language, mathematics and/or concentration. The more subtle these changes are, of course, the more difficult they are to prove. Even more physical symptoms like headache, vomiting, seizures, blurred vision, dizziness, and tinnitus can be challenging to attribute to brain damage. However, even small changes can have a profound effect on someone’s life.
If this individual has had a learning disability, mental illness, or addiction, it will be even more difficult to prove liability on the part of the defendant. Attorneys for those allegedly responsible will do everything possible to prove that the deficits are the result of past problems rather than the accident itself. Even if the plaintiff has been under a significant amount of recent stress, attorneys for the defendant may argue that it is the stress and not the trauma that explains the symptoms.
If brain damage is established as a fact, experts should be called in to assess the plaintiff’s work capacity. In serious injury cases, a life planning expert may be needed to determine the amount of money required to care for a person who can no longer care for themselves. A legal guardian might have to be appointed, for example, to make sure the claimant is safe throughout his life.
For example, according to an article published in Business Week in April 2013, 4,000 retired football players demanded in a class action lawsuit that the National Football League (NFL) will award them compensation for brain injuries sustained 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 have gone unnoticed or misdiagnosed 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 just becoming known. Now, as lawsuits claiming these injuries become more prevalent, their “popularity” has led to a great deal of skepticism and concerns 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 head trauma. We now know that people can suffer brain damage without losing consciousness, although some doctors have been slow to acknowledge 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.
Loss of consciousness for less than half an hour.
Neurological dysfunction that by itself does not spell traumatic brain injury, but in conjunction with other symptoms can support the diagnosis, especially when the injured person did not suffer a loss of consciousness after the head injury:
Irritability, lethargy, or vomiting in young children and infants.
Headaches, dizziness, irritability, fatigue and/or concentration problems.
Traumatic brain injuries are classified as open head injuries or closed head injuries. Closed is the most common, of course, because it is due to trauma that has not penetrated the skull or caused an injury of any kind. Although head injuries can also be classified as mild, moderate, or severe, the guidelines for these evaluations are based on initial symptoms and diagnoses.
The problem is that the symptoms may not appear immediately.
The Glasgow Coma Scale (GCS), however, is now sometimes used to assess visual, verbal, and motor responsiveness. The results have proven to be a fairly accurate indication of the long-term effects of brain damage on a particular individual.
If a brain injury lawsuit proceeds to a jury trial, the plaintiff will also be at the mercy of the average person’s concept of what a person with brain damage looks like and how that person behaves. These concepts are rarely accurate, since brain damage is not always evident.
Causes of Brain Damage
In addition to brain trauma, brain damage is also not always the result of head trauma. In one such hard-to-prove case, a young child experienced developmental delays. When the boy was examined by doctors, the lead levels in his system were found to be very high. The lawsuit alleged that lead entered the child’s body through paint on the toys, and damages were sought against a toy manufacturer.
Brain damage can also occur as a result of medical negligence, usually during childbirth or surgery, although it can occur from misdiagnosis, delays in treatment, inadequate anesthesia before surgery, an infection that occurs after surgery, inappropriate medications. or overmedication, or failure to diagnose a brain hemorrhage or brain tumor Babies born with brain damage due to a medical 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 may be moving toward advanced education.
As can be seen, brain injury personal injury lawsuits can be multifaceted and therefore often require a number of medical, legal, and vocational experts to reach a mutually acceptable solution.
If you need a personal injury lawyer due to an accident, visit us.