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Articles
Trial Excellence
Tactics, Legal Updates & Samples
Volume 13, Number 9 September, 2001
Recognizing and Preparing Closed head Injury Cases in the Absence of Initial Diagnosis
By Richard A. Gantner, Esq. and John P. Greenberg, M.D.
Description and Overview
A closed head injury may be described as any trauma to the brain without penetration of the skull. Common causes of traumatic brain injury include any type of fall, sports and bicycling incidents, objects falling on the head and criminal assaults. Car accidents often produce a sufficient velocity to cause traumatic brain injury even when there is no impact to the head. It is crucial for the personal injury lawyer to understand that neither direct impact to the head nor loss of consciousness are prerequisites to a traumatic brain injury.
Often the client will have emergency room records and perhaps records of a gross neurological examination demonstrating no injury. In such cases, there rarely will be an MRI or CT Scan available. If radiographs exist, they may be negative. It is important for the lawyer to look beyond what these records state on their face and ask the client pertinent questions to determine whether a neurological on/or neuropsychological examination should be advised.
A first step in properly handling a potential traumatic brain injury case is understanding the mechanism of the injury. The brain is essentially a soft structure enclosed in a hard box. The skull, or hard box, has sharp protuberances. If a skull in motion is subjected to sudden deceleration the brain will continue moving, strike one side of the interior of the skull, recoil, and strike the other side. Small petechial hemorrhages occur from these interior collisions and also as a result of the shearing forces across the brain that accompany such extreme motion. These shearing forces are also responsible for axonal (nerve) injury as the nerves are disrupted and damaged from stretching. All of the above may occur without any physical insult to the head, loss of consciousness, or radiographic evidence of injury.
In extreme cases, large hemorrhages or major bleeding will occur that will show up on CT or MRI scans. The only difference from one case to another is the amount of force sustained by the injured person. The greater the force, the more severe the obvious aspects of the injury will appear. Less obvious effects, including neuropsychological deficits, maybe present to a greater or lesser degree in individuals depending on any number of factors unrelated to the degree of force to which they were subjected. Individuals who, for example, have pre-existing mental disorder, or are in frail physical health or have less than average “cerebral reserve” are more prone to show neurological impairment with a head injury. This is one reason to avoid the term, “mild traumatic brain injury,” which is frequently used to describe those cases in which the radiographs are negative or no loss of consciousness is reported. All brain injury is traumatic. Use of the word “mild” to describe an injury to the brain unjustifiably minimizes the truly dramatic harm suffered by a brain-injured person.
Symptoms and Other Indicators of Closed Head Injury
Although an initial loss of consciousness at the scene of a trauma is not a necessary condition, it is a more than sufficient condition to indicate a closed head injury. One should always review the police report or any incident report of the occurrence with the client. Ask the client about his or her state of mind in answering questions at the scene. Responses from the client that suggest a compromised level of consciousness are strongly indicative of a closed head injury.
A good short list, or basic triad, of symptoms consists of problems with short term memory; comprehension and attention deficits; and slowness in though processing.
An irritable client may be exhibiting symptoms of a closed head injury. Ask to speak with family members. If your case goes to trial, lay witnesses should be ready to testify as to their observations of your client’s pre- and post-accident demeanor.
Start the process early. You may discover that the client you perceive as a curmudgeon had a sweet disposition before his accident and is now suffering from mood swings and personality changes, including depression, associated with a traumatic brain injury. Your clients friends, associates and family members can help you quickly identify such changes.
Other specific cognitive symptoms that, if present, are indicators of a ahead injury case are:
· Post-traumatic amnesia and retrograde amnesia
· Forgetfulness
· Inability to concentrate and maintain a focus
· Shot attention span
· Slowed work performance
· Difficulty expressing oneself
· Poor comprehension of speech
· Poor reading comprehension
· Difficulty with problem solving
· Difficulty planning schedule and assignments
· Difficulty assimilating new skills and information
· Frustration with usual activities
· Sleep disorders
· Difficulties relating to spouse or co-workers
· Sexual dysfunction
· Impaired performance in sports and diversional activities
· Fatigue, apathy
Evaluating Closed Head Injury Cases
In general, the evaluative process should begin with a neurologist. Ultimately, the neurologist will determine the necessity of neuropsychological testing. It is preferable to refer to a neurologist with forensic experience who has a relationship with a specific neuropsychologist or neuropsychological testing center. An experienced neurologist will perform a comprehensive neurological clinical evaluation that includes obtaining an accurate history of the traumatic even and what transpired immediately after the traumatic event. A review of all pertinent medical records is essential to this inquiry and the attorney should provide the records to the doctor. In cases where the injured person is unable, by reason of the nature of the injury or for any other reason, to relate a full and accurate history of the event, it is helpful to recommend to your client that he or she take someone into the examining room who can help with the history. In the appropriate case, the neurologist will refer the patient for a neuropsychological clinical evaluation.
In the first three months post-injury the common symptom triad described above – short-term memory impairment, attention-concentration difficulties and slowness in thought processing or verbal processing speed – are the prominent characteristics. This is usually evident from a conspicuous intellectual decline at school or at work. Teacher may notice impaired speech expression, impaired word-finding capabilities and reduced learning capability. Co-workers may report the person’s inability to focus on tasks at work. There may be an obvious executive function deficit affecting such skills as planning, supervising and decision-making. Family members may observe the client having difficulties with finances and calculations, or with previously learned skills, such as computer, sports, or recreational activities.
Memory and attentional difficulties persist in the three to six months post-trauma. Psychological problems, such as post-traumatic stress disorder with anxiety and depression, become more prevalent. Any premorbid psychiatric disorders enhanced by the head trauma become more obvious. Headaches previously generalized become either persistent muscle-contraction type or post traumatic migraine type. Despite cognitive improvement, fifty percent of brain-injured patients will remain symptomatic six months after the injury. Twenty percent still remain symptomatic beyond twelve months.
More than 200,000 closed head injury cases are reported each year. There may additionally be thousands of undiagnosed and unreported cases. It the personal injury practitioner is aware that brain injuries may occur without penetration of the skull striking the head, or loss of consciousness, he or she may recognize cases that would otherwise go unreported. Brain injured victims who might not have received an adequate diagnosis or treatment will benefit from the attorney’s diligence in seeing that these clients get suitable medical treatment as well as superior legal representation.
Trial Excellence is published monthly by Esquire One Publishing,
P.O. Box 3509, Tustin, CA 92781
www.esquireone.com
©2001 Esquire One Publishing All rights reserved. Reproduction prohibited without permission.
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