This article is part 2 of a 2-part series on brain injury litigation, specifically, how lawyers link trauma to brain injury. This series can also offer helpful information for TBI victims and their loved ones about basic insight into the strategy necessary for building a successful case.
Read Part 1 of the series here.
Part 2 of this series covers:
- Understanding Causes of Brain Injuries
- Common Types of Brain Injuries Resulting from Trauma
- Proving Neurophysiological Effects
- Strategy: Keeping it Simple
Understanding Causes of Brain Injuries
Many victims of TBI are not aware that they may have suffered a life-changing brain injury when it occurs. Misperceptions about TBIs abound, and it is your attorney’s responsibility to educate the jury on how brain injuries often result from common causes.
One misperception is that TBIs occur only when a person sustains a serious blow to the head. Another erroneous yet commonly held belief is that brain injuries are immediately recognized.
The truth is that brain injury is unpredictable and does not require a loss of consciousness.
A few common causes of brain injury include:
- Slip and fall
- Vehicular collision
- Acceleration or deceleration trauma (whiplash)
A person who has been hurt in any of the above examples may not realize he or she required hospitalization for a brain injury until time has passed. The representing attorney must effectively demonstrate the link between the event and the injury to the jury in order for a case to be successful.
Common Types of Brain Injuries
TBIs are often accompanied by numerous, microscopic and undetectable injuries. In cases where imaging studies – such as x-rays – do not demonstrate brain injury, demonstrative evidence is even more critical.
Axonal and shear injuries can be undetectable on a CT or MRI because no blood vessels were involved.
- Shear injury involves separation of white and gray brain matter from rapid motion between the skull and cortex (outer layer of the brain).
- Diffuse axonal injury involves tearing of the brain’s long connecting nerve fibers (axons) when the brain is injured by shifting and rotating inside the skull.
The types of brain injuries described here are caused by sudden movement of the head and neck. These injuries may still have disastrous consequences when it comes to neurological function.
When there are no physical findings of hemorrhage or head trauma, it is important to analyze initial hospital records for behavioral or cognitive traits that can be linked to brain injury, such as loss of consciousness, confusion, amnesia, or concussion.
In cases where there is no definite head impact, demonstrating the violent back-and-forth or side-to-side (coup/contrecoup) type movements of the head and neck can illustrate the significance of the injury.
Tools like models and medical illustrations are essential for presenting medical concepts or procedures that can be difficult for a jury to understand.
Proving Neuropsychological Effects
Demonstrating brain function is an important part in brain injury litigation. To prove the neuropsychological effects associated with a TBI, an attorney must explain how various areas of the brain control certain functions while relating the plaintiff’s deficit in normal brain function.
- In most frontal impact accidents, the frontal lobes strike the inside of the skull, leading to grave injuries. With this type of injury, plaintiffs generally have difficulty with memory and may experience personality changes.
- Brain functional charts are available for use that can demonstrate how an impact to the brain can result in loss of cognitive function.
In instances where there is no evidence of positive imaging studies, an attorney must emphasize the plaintiff’s behavioral, cognitive or emotional changes from the incident. Neuropsychological examinations can be used as demonstrative aids to emphasize specific findings.
Evidence may be based on the following:
- Testimony of family members or friends who had a close relationship with the plaintiff before and after the incident. Effective tools are testimonies and depositions of friends, co-workers and family who have witnessed these changes first-hand.
- Comparative calendars which determine changes in the plaintiff’s quality of life following their TBI. The calendar may demonstrate the plaintiff’s change in lifestyle; side by side comparison can show the plaintiff’s “before” life, while the other calendar represents the “after” injury life events.
- Timelines are another useful tool that can show the extent of treatment over a series of years. Creating an outline of the chronology of events after the head injury, including rehabilitation and how long the plaintiff has suffered, can be effective in supporting a TBI case.
Brain Injury Litigation Strategy: Keeping it Simple
With the correct use of demonstrative aids, experienced counsel can effectively show a jury and explain an “invisible” condition. However, because medical demonstrations can be highly complex, it is best for an attorney to keep these aids simple so as to avoid overwhelming the average layperson.
The attorneys at the Brain Injury Law Center have informed experts and the experience to provide the clear demonstrative tools a jury needs to understand the nuances of a TBI sufferer’s condition. If you are an attorney or even a TBI survivor and would like to know more information, contact our offices today at (757) 244-7000. We welcome your questions.