Brain Damage in Personal Injury Cases

When someone suffers brain damage, the personal injury lawsuit that results can be a complicated case. There are a number of reasons for this. First and foremost, it can be difficult to diagnose brain damage, as it is frequently related to the person’s cognitive ability. The question, then, is how much ability did the individual have prior to the accident/injury? If the injured person claims cognitive deficits, can they be proven to be a result of the accident?

From a medical perspective, the diagnosis may not be definitive. CT scans, EEGs, and MRIs do not always show the full extent of brain damage. If that’s the case, it is then the burden of the injured party (plaintiff) to prove the deficits, which can consist of behaviors as difficult to pinpoint as personality changes/mood swings, depression, memory loss, fatigue, and sudden problems with language, math, and/or concentration. The subtler these changes, of course, the harder they are to prove. Even more physical symptoms such as headache, vomiting, seizures, blurred vision, dizziness, and tinnitus can be challenging to attribute to brain damage. Yet, even small changes can have a profound effect on someone’s life.

If this individual has had any learning disabilities, mental illness, or addictions, it will be even more difficult to prove responsibility on the part of the defendant. The attorneys for the alleged responsible parties will do their best to prove that the deficits are a result of these prior issues rather than the accident itself. Even if the plaintiff has been under a significant amount of recent stress, the defendant’s attorneys may allege that it is the stress and not the head trauma that accounts for the symptoms.

If the brain damage is established as fact, vocational experts must be called upon to assess the plaintiff’s capacity for work. In the cases of severe injuries, a life care planning expert may be needed to determine the amount of money required to care for a person who can no longer care for himself/herself. A legal guardian might have to be appointed, for instance, to make sure that the plaintiff is safe throughout his/her life.

For example, according to an article in Business Week in April 2013, 4,000 retired football players demanded in a class action lawsuit that the National Football League (NFL) provide them with compensation for brain damage suffered 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 went unnoticed or improperly diagnosed 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 beginning to become known. Now, as lawsuits claiming these injuries become more prevalent, their “popularity” has led to a great deal of skepticism and worries 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 the head trauma. Now, we know that people can indeed suffer brain damage without losing consciousness, although some doctors have still been slow to recognize 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;

• Dysfunction of memory;

• Loss of consciousness for less than a half hour.

• Neurological dysfunction that alone does not spell traumatic brain injury, but coupled with other symptoms can support the diagnosis, especially when the injured person did not suffer a loss of consciousness after the head injury:

– Acute seizures;
– Irritability, lethargy, or vomiting in young children and babies;
– Headaches, dizziness, irritability, fatigue, and/or concentration problems.

Traumatic brain injuries are categorized as open head injuries or closed head injuries. Closed is the most common, of course, which is due to trauma that has not penetrated the skull or caused a gash of any kind. While head injuries may also be classified as mild, moderate, or severe, the guidelines for these assessments are based on the initial symptoms and diagnoses. The problem is that symptoms may not show up right away.

The Glasgow Coma Scale (GCS), however, is now sometimes used to assess eye, verbal, and motor responsiveness. The results have been shown to be a fairly accurate indication of the long-term effects of a particular individual’s brain damage.

If a brain damage lawsuit proceeds to a jury trial, the plaintiff will also be at the mercy of the average person’s concept of what a brain damaged person looks like and how such a person behaves. These concepts are rarely accurate, as brain damage is not always readily apparent.

Causes of Brain Damage Other Than Head Trauma

Brain damage is also not always the result of head trauma. In one such difficult case to prove, a toddler experienced developmental delays. When the child was tested by doctors, the levels of lead in her system were found to be very high. The lawsuit claimed that the lead was introduced into the toddler’s body via paint in toys, and damages were sought against a toy manufacturer.

Brain damage can also occur as a result of medical malpractice, usually during childbirth or surgery, although it can happen from misdiagnoses, treatment delays, improper anesthesia given before surgery, an infection that occurs after surgery, improper or too much medication, or failure to diagnose a brain hemorrhage or brain tumor. Babies born with brain damage due to physician 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 able to proceed to advanced education.

As you can see, brain damage personal injury lawsuits can be multifaceted and, therefore, often require a number of medical, legal, and vocational experts in order to reach an agreeable settlement between the parties.

10 Factors in Dementia

As an Alzheimer’s caregiver, I’ve always looked for clues in a person’s life. Why did Alzheimer’s happen to this person?

The diagnosis of Alzheimer’s is a default diagnosis. So, I’m listing here the recurrent life issues that I’ve noted in the lives of everyone I’ve known said to have Alzheimer’s. I suggest everyone else interested in this issue does the same. Why? Because genetics have not yet accounted for Alzheimer’s. So, life factors may well be a factor. They are seldom studied in drug company financed research.

Ten Factors in the Lives of People With Dementia

1. Lack of Nurturing in Infancy and Early Childhood:

The biggest single issue seems to be being born into hardship — concentration camp, starvation, mentally-ill parent, alcoholism, abandonment, abuse. Suffering emotional deprivation. The result? Prolonged over-production of cortisol, the stress hormone identified as the attacker of brain function and even of the brain structure itself.

2. Major Lifestyle Issues:

Poor diet, little exercise, addictions – these are all to be found prevalent in those with dementia.

3. Environmental Toxins:

Exposure to long-term degradation of environment or being exposed to a short-term but major toxicity, anything from mercury poisoning to war toxins.

4. Head Injury:

The Mayo Clinic reports that about one-third of everyone who has dementia has had a head injury earlier in life. Whether the exact nature of the head injury or the area injured is a factor, medical researchers have not yet fully established.

5. Medications:

Long-term users of prescribed tranquillizers and other mood-controlling medications as well as medication specific to controlling afflicted brain mechanisms may develop dementia. Additionally, the average elder takes anywhere from six to fifteen different medications. None of them have been tested in combination by their manufacturers.

6. Surgery and General Anesthesia:

A significant number of those with dementia have had at least two operations involving the use of general anesthesia when over the age of 65. These days, many surgeons offer other alternatives for elders undergoing necessary procedures. For example, many hip replacement procedures are now done under sedation of a different kind, for this very reason. Always ask if there is a comfortable alternative to general anesthesia.

7. Cumulative Trauma in Old Age:

Insurance actuary tables show that stressful events are often the forerunner of severe illnesses or accidents, and we see this constantly born out in the lives of elders. Maybe they have been relocated, have experienced the death of a spouse, were involved in a car accident, or were the victim of a crime. Given the general lack of peer-group support systems, an older person can be left feeling seriously traumatized with little support for emotional recovery.

8. Lifelong Undiagnosed Mental Illness:

Every Alzheimer’s care unit usually has a group of residents who are mentally ill much more than demented. My experiential guess is that at least ten percent of all people said to have Alzheimer’s are more likely to be suffering from a longtime mental illness and not the organic disease of dementia.

9. Dietary Dementia

Due to lifelong dietary deficiency or its development in old age affects health. An issue seldom addressed is the reduction of digestive enzymes in elders, leading to nutritional deficiency. Even when they may actually be eating good food often enough, without sufficient digestive enzymes the complex sugars that the brain requires will not be distributed to the brain.

10. Undiagnosed Normal Pressure Hydrocephalus:

Hydrocephalus in older adults is caused by a gradual shrinkage of the pathways which formerly drained the fluid away safely. This can be the result of strokes, the actual shrinkage of the entire brain, or other factors of old age. A brain pressure test needs be part of any Alzheimer’s work-up and sometimes family members have to insist on it.

Anesthesia and Airway Management

When patients are set to undergo a serious surgical procedure, they will often be placed under general anesthesia. This process of temporarily putting a person into a state of paralysis and unconsciousness comes with a large number of serious risks. In fact, in many procedures, the dangers posed by the anesthetics and the process in which they are used can be much more threatening to the person’s wellbeing than the surgery itself. When a patient’s procedure requires general anesthesia, one key concern is assuring that the person’s body will continue to receive the oxygen it needs to survive.

The importance of airway management is clear when one considers the fact that it can take only four minutes for a patient deprived of oxygen to experience “brain death.” Soon after that, the patient will experience cardiac arrest and death. To avoid these terrible situations, a person’s airway is generally protected by an endotracheal tube inserted into the windpipe before the surgical procedure begins. Unfortunately, this process is not without its own risks. If the tube goes into the patient’s esophagus instead of their windpipe (they are located very close to each other), their lungs will obviously not get the oxygen they need. There are devices that can help assure tubes are not misplaced, but they are not available in all medical environments.

If multiple failed attempts are made to insert an endotracheal tube, the patient may suffer airway trauma. If the windpipe swells or becomes obstructed due to this trauma, the person will need an emergency tracheotomy to avoid deadly hypoxia (lack of oxygen). The use of ventilators is meant to assure that proper gas exchange takes place inside the patient’s body. These machines create another element in which improper airway management can lead to serious injury or death.

The medical world’s understanding of the effects of anesthetics on the human body has increased greatly since their use began. Still, despite the use of specialized devices like ventilators and fiberoptic scopes, anesthesia is a field riddled with dangers. Medical professionals must give their patients constant attention to make sure that nothing goes wrong while the person is unconscious. If they do not, and instead behave negligently, there is a very serious chance that the patient may suffer serious injuries or even die.