By Dan Chamberlain
March is brain injury awareness month in the United States, recognizing that 3.5 million Americans suffer a brain injury each year. Brain injury is a lifelong, ongoing and degenerative disease process that affects survivors, their families and the general public. Every 13 seconds a brain injury occurs in America.
Brain injury by the numbers
Brain injury is the signature wound of the NFL, NCAA, youth football and the military conflicts in Iraq and Afghanistan. Brain injury does not discriminate and includes stroke and the 2.5 million citizens that annually suffer a traumatically induced brain injury. TBI victims include 294,000 service members, 35,000 Hoosiers and up to 18,000 retired NFL players. Twelve million Americans live with a form of brain injury. TBI is most often associated with motor vehicle crashes, falls and other traumatic injury.
What is a TBI?
TBI is defined as an alteration in brain function or brain pathology caused by an external force. A TBI does not require a loss of consciousness. It may include a loss of memory of events prior to or after the event; other neurologic deficits including weakness, loss of balance, vision change or headache; sensory loss including smell and taste; or any alteration in mental state. However, clinical sequelae or symptoms of traumatic brain dysfunction need not be evident immediately to confirm permanent injury and disability. It should also be noted that a Glasgow Coma Scale evaluation does not determine whether a person may have lifelong brain damage, it merely speculates on whether a person will survive initial trauma to the brain and is, therefore, largely irrelevant.
Personal injury claims for traumatic brain injuries
Claims involving TBI are complex, expensive, time consuming and seemingly continue in perpetuity. Neurolaw is an interdisciplinary study of the structure and function of the brain, science and medicine in relation to the law. Neurolawyers are uniquely qualified to represent TBI survivors because of their experience, education and radius of influence within the medical community to understand how to prove damages with the financial resources to adequately prepare and present the case.
TBI damages are substantiated by a combination of diagnostic testing (MRI, CAT scan, fMRI, DTI, NeuroQuant), forensic examination (neuropsychological examinations) and witnesses. Severe TBI is visually evident, but a client that suffers a mild to moderate brain injury may appear perfectly normal. However, a person with a mild to moderate brain injury may show changes in behavior, cognition, word finding, confusion and other less severe, but otherwise debilitating, conditions. Such an individual is a new personality or person trapped inside an otherwise unchanged body.
Every TBI case requires sound expert medical and lay witness testimonies that can describe how the client has changed. Medical experts include a “team” or coordinating physician directing treatment, as well as physiatrists, neuropsychologists, neurologists, radiologists, therapists and many other treating and retained experts that support and bolster a potential TBI claim. Lay witnesses may include employers, co-workers, friends, employees and family. A key to success is selecting the appropriate medical and lay witnesses (which may differ by case, injury and diagnosis) to lay an adequate foundation for proving maximum damages.
The costs of medical care for a victim of TBI are staggering and approach $80 billion per year in the U.S. For example, hypoxic birth injury or negligent surgical care (anoxic) can yield a life care-plan that exceeds $15 million. That figure is in addition to medical expenses. If the case is not properly prepared, then the client is unnecessarily penalized in terms of inadequate damages and ultimately shifts the burden of expensive medical care to the taxpayers and others. Severe TBI can cause a continuum of care costs that reach into the millions.
Other potential pitfalls involving TBI litigation are lien resolution, continuation of governmental benefits, access to brain injury or developmental disability medical waivers, Social Security disability and the need to create guardianships, power of attorney and Special Needs Trusts to protect the corpus of a settlement or verdict at the end of the case. To fail at any one or more of the foregoing may expose an attorney to malpractice – hence the need to involve a competent, well-funded, neurolawyer as co-counsel or lead counsel as soon as possible.
Resources for victims and families of TBI
The Brain Injury Association of America is the unified voice of brain injury advocating for access to care and community. Whether testifying with its partners, the Centers for Disease Control, National Institutes of Health, Walter Reed National Military Medical Center, Kessler Foundation, Congressional Brain Injury Task Force or Wounded Warriors, the BIAA is charged with the responsibility to advocate for access to care and community for all. The BIAA board consists, in part, of leaders in the industry that are internationally recognized medical researchers, clinicians and providers, a former secretary of the Navy, politicians, industry stalwarts and professional stakeholders.
Founded in 1980, BIAA is based outside of Washington, D.C., and operates through affiliate chapters. Indiana is the first state-chartered affiliate that operates 22 support groups for Hoosier survivors of brain injury and their caregivers. Each year a conference is held to provide information to medical professionals and interested stakeholders on brain injury at Indiana University Neuroscience Center in Indianapolis.
“Bowling for Brain Injury” is an annual fundraising effort for BIAA which spans 20 locations in 10 states each spring. Funds raised from these events support ongoing initiatives and member projects including advocacy efforts and concussion legislation in each state. I invite you to join me on April 19, 2015, for the Indiana Bowling for Brain Injury event taking place in two locations: Indianapolis and Fort Wayne. For more information please visit BIAUSA.org.•
Dan Chamberlain is a partner at Cohen & Malad LLP in Indianapolis and serves as chair of the BIAA, an officer of Indiana Trial Lawyers Association and a member of the executive committee and sponsor of Brain Injury Association of Indiana. He is also a guest lecturer at Indiana University Robert H. McKinney School of Law for the neuroscience program. Follow him @BrainLawyer. The opinions expressed are those of the author.