Handling a Brain Injury Case

Handling a Brain Injury Case

The most complicate case a plaintiff’s lawyer can confront is one where his client suffers a brain injury as a consequence of an accident. It is difficult because 9 out of 10 traumatic brain injury situations include injuries that are not visible to ordinary people. So how will a jury believe that your client suffered a brain injury?

clearly there are the straightforward brain injury situations where the plaintiff suffered a fracture to his or her skull and all experts agree that there was organic damage which is causing the plaintiff’s symptoms.

The problems lie in the case where the physical damage does not show up on CT scans or MRI’s. The plaintiff often looks normal, and this turn up can be terribly misleading. He or she may speak well, and this is an already greater problem to conquer. But the brain, like an atom if broken or divided, causes an explosion of misery and pain that is horrendous. When the brain is damaged, there is no tool obtainable for the surgeon to come and fix it. We depend on character and nurture and the ability to compensate.

Family and friends of the person who suffered a brain injury will feel the devastation sometimes as much or more than the injured party.

The overall objective for a lawyer in a brain injury case is to convince a jury that an organic injury has occurred, that it is long-lasting, and that it is the main reason for your client’s impairment.

As much has been written with respect to proving liability, economic loss and family loss related to a negligence case, this paper is only intended to cover aspects of preparing a brain injury case for trial.

Taking the Case

Agreeing to take a brain injury case is a emotional investment for a lawyer in many ways.

Consider the following case:

Your client, Mrs. Reynolds, was a driver in a car accident that occurred on a comparatively busy road. The accident occurred at night. Mrs. Reynolds was proceeding on a road when a van pulled out from a side road to make a left turn. Mrs. Reynolds slammed into the right front corner of the van as the driver of the van made his turn. Both drivers were seriously injured. When the ambulance arrived, Mrs. Reynolds was dazed but able to respond to verbal and physical stimuli. She scored 11 out of 15 on the Glascow Coma extent for her loss of awareness. She was lucky to survive the accident.

The Initial Visit

When the client visits the lawyer for the first time, the lawyer usually has little or no information about the case. These first meetings are extremely important. Both the client and the lawyer have to like each other right away. Clients, for the most part, are not familiar with the intricacies of the legal system and don’t know the lawyer, so they are usually a little apprehensive and uneasy. The lawyer, being familiar with the system and situations like this one, should help put the client at ease.

During the interview, the lawyer thinks of two main issues in an accident case: liability and damages; while a client may be thinking of any number of things and is eager just to tell the complete story. consequently, the lawyer in an initial interview must be a good listener in addition as a persuasive speaker.

Once mutual trust is established, the client and lawyer can work well together.

The client should get information from the lawyer such as:

“Have you handled situations like this before?” … “How many?”

“Are you familiar with the medical aspects of a case in which there is a brain injury?”

“Have you written any articles?”

“What references can be supplied?”

Finally, the lawyer should satisfy himself or herself that the client has a genuine injury by examining the most reliable evidence. It is basic to speak to the family members and friends closest to your client in order to find out how your client was before the accident. In brain injury situations, you will often hear that your client was high functioning before the collision and now is unable to concentrate in a busy ecosystem. They may also tell you that your client is no longer the same person, lacks motivation and fatigues easily. Finally, you are told that your client’s personality has changed, gets frustrated easily and lacks confidence, traits rarely displayed before this accident.

Clients Dissatisfied with Prior Counsel

Many plaintiffs who have suffered traumatic brain injuries have unrealistic expectations regarding how their lawsuits should be handled or how they should ultimately turn out. Most lawyers are contacted by brain injured plaintiffs who are dissatisfied with the legal counsel they have before employed. The most shared complaint heard is that the present lawyer doesn’t understand the client’s brain injury and the problems that flow from such an injury. Lawyers should be guarded in taking on these situations. The lawyer should, in most situations, get the client’s consent to discuss the case with the past lawyer before agreeing to manager the case.

Acquiring Documentation

In building your case for trial, you must acquire all applicable records relating to your client’s accident. In brain injury situations, a lawyer will have to assemble enormous amounts of documentation. Medical, employment, school and accident benefits documentation will comprise the bulk of such evidence.

From the outset, the lawyer must thoroughly probe the facts surrounding the case. Obtaining a copy of the Motor means Accident Report and police field notes will provide a basic understanding of the factual circumstances surrounding the accident. If liability is an issue, an investigator will need to be retained to interview any witnesses, police and visit the accident scene to assist in accident reconstruction.

Evidence of Vehicular Damage

Whenever your client’s means or the defendant’s means is clearly damaged, photographs of the means’s damage are powerful. Photos may have been taken by witnesses, newspapers, the client, family members, police or the insurance company for character loss insurance. Any obvious damage to the interior of the car caused by your client’s head should be demonstrated visually and discussed by every observe who can do so.

If there is no vehicular damage, a biomechanical engineer, supported by a reconstruction engineer’s calculate of speeds, can explain how the force of the collision can cause a brain injury despite minimal damage.

Photos of Injuries

Not surprisingly, jurors find it easier to believe the brain is injured if the head or confront is injured. Not rarely, there are very early photos obtainable which record black eyes and cuts to the head. These photographs are important corroborative evidence which are especially effective when enlarged or when projected.

Later, when an expert is explaining the area of the brain which has been affected, it is persuasive to refer to the photograph and have the expert confirm that the affected part of the brain is in the general area to the laceration or bruising.

Ambulance Call Report

The first record to review is the Ambulance Call Report. If the Ambulance Call Report contains any evidence which demonstrates a brain injury, it presents demonstrative evidence which is objective. This evidence, once shared with a Court, will be important for describing your client’s condition shortly after the accident.

You may highlight a reference to disorientation or recording of a period of unconsciousness. Secondly, there may be a record of bruising or lacerations to the head. Finally, you will want to press the Glasgow Coma extent that supports your case.

Every expert who comments on your client’s injuries will refer to the Ambulance Call Report and this is why this document may be one of the most important pieces of evidence in the case.

Hospital Records

Next, the emergency records of the hospital where the client was taken must be carefully reviewed. The records will contain the initial history taken and nurses’ notes and assessments while at the hospital. Records that indicate a low Glasgow Coma extent score or disorientation will help demonstrate the continuation of the injury at the hospital. Oftentimes a patient with an acquired brain injury may become violent or aggressive to the hospital staff, which can demonstrate a frontal lobe injury.

Hospital records can also be used to demonstrate the consistency of symptoms of your client. For example, if your client complains of headaches and the nurses’ notes show the same complaint, this can be compared to your client’s later complaints to other specialists.

Radiographic Evidence

From the time of a patient’s arrival at the ER by follow-up treatment, a wide variety of complicated testing can be done to help demonstrate the brain injury.

There are two types of neurological tests: those that examine the structure of the brain and those that examine the function of the brain. The CT examine and MRI look at the structure of the brain. The electroencephalogram (EEG), SPECT examine, PET examine and evoked studies examine the function of the brain.

MRI and CT Scans

The MRI and CT examine slice the brain radiographically into slabs. The MRI does this with magnetic fields while the CT examine uses x-rays. The MRI provides more detail than the CT examine. Hence, brain damage as seen on an MRI, as small as 1-2 mm in size, may escape detection by a CT examine. The CT examine is superior to the MRI in detecting fresh blood in and around the brain, while the MRI is better at detecting the remnants of old hemorrhaged blood, called hemosiderin. CT scans are often repeated to ensure that a brain injury is not becoming more extensive, usually in the early stages of ER treatment.

Being so very sensitive, the MRI commonly detects clinically silent (asymptomatic) “brain damage” in the normal population. For example, as we age it is shared for myelin in the white matter to degenerate (myelin is a jacket of insulation around axons to help them conduct their electrical discharges quickly down the axon). An MRI can detect this myelin degeneration as white matter hyperintensities. The MRI is also sensitive to cerebral atrophy (shrinkage), another normal occurrence as we age. Excessive numbers of white matter hyperintensities or excessive atrophy signal a possible neurologic illness or injury.

PET examine (Positron Emission Tomography)

PET scanning is based on the fact that the brain uses glucose for energy. By labeling a glucose molecule with a radioactive “tag” and then inhaling radioactive glucose and placing the patient’s head under a large geiger counter, one can clarify abnormal areas of the brain that are underutilizing glucose. Because cyclotrons are needed to generate the radioactive gas, PET scanning is not widely obtainable.

SPECT examine (Single Photon Emission Computed Tomography)

SPECT scanning is similar to PET scanning in that a radioactive chemical is administered intravenously to the patient, but the radioactive chemical remains in the bloodstream and does not go into the brain. As a consequence, the SPECT examine maps the brain’s vascular supply. Because damaged brain tissue typically shuts down its own blood supply, focal vascular defects on a SPECT examine are circumstantial evidence of brain damage. The advantage of a SPECT examine over a PET examine is it is freely obtainable and is comparatively cheap. Recent studies have demonstrated abnormal SPECT scans after head trauma when the CT and MRI were normal, suggesting that the SPECT examine is more sensitive to brain injury then either CT or MRI scans. Because the radioactive chemicals used in SPECT and PET scans are carried to all parts of the body by vascular tree, SPECT scans and PET scans are used judiciously in patients of reproductive age.

clearly there are great limitations to medical science in revealing the intricacies of brain injury. As advocates we must not forget that most jurors will be relying on the evidence of the experts in making their decisions regarding the case. Most jurors will be learning about brain injury for the first time. The lawyer must remind the jurors by expert testimony that although science has come a long way, it is nevertheless in its early stages. consequently, more reliance can be placed on the lay witnesses who describe how the plaintiff has changed.

Referral to an Expert for an Evaluation

While the plaintiff has probably seen a number of experts since his or her accident, there are often occasions where the plaintiff has not seen the appropriate medical care provider. For this reason it may become necessary for solicitors to refer their clients to additional experts for further clinical evaluation.

Oftentimes while proving that your client’s injuries are caused from an acquired brain injury, a lawyer will retain a neuropsychologist. Test results are open to interpretation and argue. If the client moves about typically, speaks articulately and looks perfectly healthy in the structured ecosystem of the courtroom you can expect the defence experts to disagree with your experts.

Other experts will be retained who are not part of the medical treatment team, some of which may include vocational experts, life care planners and already economists.


Before a case goes to trial, the lawyers for both parties know not only the case but also the other side’s position on all the issues. The system is designed to prevent surprises. In the discovery phase, a lawyer will ask questions under oath of the negative party. This form of oral testimony provides both the plaintiff and defendant with the clearest view of expected trial evidence. The views of the deponents become “locked down” and difficult to alter later during trial.

With a brain injured client is important to remind them that all question put to them are assumed answered as if they have a complete and accurate recollection of the evidence. Often the opposite is true. The lawyer representing a brain injured client must take abundant time in improvement to prepare their client for this examination so that the evidence is not misconstrued.

Keep in mind that the defence will attempt to use the Examination to undermine your client’s credibility by obtaining admissions, which are contrary to your case or commit your client’s evidence so that it can later be contradicted by expert opinions or surveillance.

Lay Witnesses

Lay witnesses are people who have known the plaintiff both before and after the date of injury. These include family members, friends, neighbours and co-workers of the plaintiff who help to validate the testimony of the plaintiff and the experts during a trial. These witnesses can be very persuasive because their testimony is easily understood and can often describe the plaintiff’s subtle injuries vividly.

Developing a Theme

The theme is the information or phrase that regularly reappears in the litigation to focus the jury’s attention upon what the case is really about. Selecting one or more themes is of crucial importance. Themes are like magnets, which regularly attract notice. They must intended to cause both rational and emotional responses in jurors. In formulating trial themes, lawyers should focus upon facts, which may be expressed using high impact language, and illustrated by high quality demonstrative evidence. Themes that press “quality of life” issues tend to rule the brain injury situations because of the harsh impact a brain injury may have upon the lives of individual plaintiffs.

There is nothing more effective in persuading any jury of organic injury than evidence that demonstrates that the plaintiff was having a successful and satisfying life before the accident. A timeline can often be persuasive in demonstrating an absence of medical treatment and consistent employment before the injury.

Settlement before Trial

Most times situations settle prior to trial. After a suit is filed and the case proceeds, but before the trial begins, the parties can agree to settle. If that occurs, then one side agrees to pay a sum of money to the other, and the other side agrees to accept it as payment in complete for the injuries suffered. Usually a settlement is a good thing. In a settlement, no one loses. The insurance company pays something, maybe a little less than expected by the plaintiff, but the risk of a trial is avoided. In all trials there are big risks for both sides.

The Overall Challenge in a Mild Brain Injury Case

Most insurance adjusters and defence lawyers take a jaundiced view of mild traumatic brain injuries. Some have commented that it represents the “whiplash of the new millennium”. Despite this cynical approach, the lawyer taking on a brain injury case must look for proof of an organic injury in order to defeat the following standard defences:

No loss of consciousness: Plaintiffs who sustain mild brain injuries often do not experience true loss of consciousness. Expert witnesses will help present evidence that loss of awareness, confusion or dizziness as a consequence of trauma can cause meaningful neurological problems.

The impairment was pre-existing from long standing pre-accident emotional problems.

The injury, if there is one, is only an emotional one that can be cured by treatment.

Negative neuro-imaging results: The absence of positive findings by examinations such as a CT examine or MRI should not be treated as evidence of a without of injury.

The client is malingering: Defence counsel will insist that the plaintiff is deliberately producing false or exaggerated symptoms motivated by the desire to acquire financial compensation by litigation. Usually malingering can be detected in psychological testing.


If the sum of money offered by the insurance company in not accepted by the plaintiff, then the matter will proceed to trial. A trial is a risky venture: one side may win a lot of money or get nothing. In any event, the costs of a trial can be extremely expensive for the loser.

Trials can be decided by estimate alone or by estimate and jury. While negligence situations are brought against the individual who caused the accident, there is always the presence of the insurance company behind the scenes as they are responsible for protecting the defendant up to the limits of their policy.

If you are to persuade the jury that an injury has occurred, you must find a way to conquer the turn up of normalcy as the plaintiff gives evidence. One way to do so is to graphically explain the mechanism of injury so that the jury can appreciate that the brain can be permanently injured without any long-lasting change to the turn up of the head or confront. There is no more effective way to explain the mechanism of injury than to show it, either by the use of medical-legal illustrations, animations or other artwork.


In conclusion, the presentation of a brain injury case is extremely challenging. The lawyer undertaking such situations should be familiar with the long-term consequences of brain injury. If the lawyer does not cover all aspects of the case with appropriate witnesses and other evidence, he will do himself and his client a great disservice.

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