Recognizing Closed Head Injury

By
Randall H. Scarlett, Esq.

Traumatic brain injury (TBI) is not like any other injury. Sadly, because many of the symptoms of "mild" to "moderate" traumatic brain injury are subtle, and because the injury commonly avoids detection on our most sophisticated hospital imaging equipment, it is common for victims to go undiagnosed. This is especially so in the emergency room.

Due to the invisible nature of the injury, victims of traumatic brain injury only rarely receive prompt treatment for their physical and cognitive impairment. Not uncommonly, victim's early medical charts are devoid of any mention of "head injury" or "cognitive impairment". It is only later, if lucky, that a health care professional validates the victim's "injury", and treatment finally ensues.

As with most misunderstood injuries, society and "old school" health care practitioners, are apt to label the TBI victim a malingerer, or worse. Because victims of traumatic brain injury appear outwardly just as they did before the injury, it should come as no surprise that many victims describe post-injury experience as including progressive social isolation together with alienation from even immediate family.

In most instances, victims of TBI are unable to process information at pre-injury rates of speed. Nor is the range of subject matter about which an individual can think the same for a victim of traumatic brain injury. Accurate judgment becomes difficult, at best. Communication is often times stifled, and the ability to conform behavior is impaired. Violent behavior may manifest as a result of frustration and inability to respond in a pre-injury manner. Headaches are common, and smell and taste can be affected. Memory and recall are often times profoundly affected.

Conscious or unconscious awareness of the situation becomes the private "hell" of the victim, who is alone and unable to diagnose or resolve the injury. Recognizing this unfortunate circumstance, Dr. Antionette R. Appel has stated: "Left to fend for themselves, the victims of traumatic brain injury already confused by their inability to be the people they were prior to the injury, now face the daunting task of demonstrating that an injury they do not understand and cannot comprehend is producing the confusion they cannot communicate".

Historically, words such as "mild", "moderate" and "severe" were utilized to define brain injury. For many years, these terms were utilized based on duration of loss of consciousness.

Today, it is universally accepted that brain injury can occur without loss of consciousness, without direct external trauma to the head, and without positive findings on CT, MRI, or other sophisticated diagnostic testing.

Frankly, it is repugnant to utilize terms such as "mild" or "moderate" to describe a permanent brain injury. However, until the lexicon of health care practitioners, experts, and others change, we seem destined to face use of these terms to describe brain injury. We must, therefore, assist the profession to understand what, in fact, words such as "mild" and "moderate" mean as they pertain to brain injury.

One of the best definitions of mild traumatic brain injury comes from the Mild Traumatic Brain Injury Committee of the Head Injury Inter-Disciplinary Special Interest Group of the American Congress of Rehabilitative Medicine. They define mild traumatic brain injury as follows:

DEFINITION "A patient with mild traumatic brain injury is a person who has had a traumatically induced phsyiological disruption of brain function, as manifest by at least one of the following:

1. Any period of loss of consciousness;
2. Any loss of memory for an event immediately before or after the accident;
3. Any alteration in mental state at the time of the accident (i.e., feeling dazed, disoriented, or confused); and
4. Focal neurological deficits that may or may not be transient, but where the severity of the injury does not exceed the following:

" Post-traumatic amnesia not greater than 24 hours;
" After 30 minutes, an initial glasco-coma scale of 13 to 15;
" Loss of consciousness of approximately thirty minutes or less."
Those who sustain concussion, seizure, hemmorhage, significant loss of consciousness, coma, and/or skull fractures are typically diagnosed as having sustained a "moderate" to "severe" traumatic brain injury.

Injuries of this nature are generally detectable on CT, MRI, and other imaging devices. In many instances, the patient's very survival is an issue. Brain swelling, contusion and edema are likely complications. In virtually all cases, the quality of life is a premier end goal.

III

Despite any misconceptions you may have, one of the most important aspects of your professional success involves the client screening process you employ, and as a result, the clients you ultimately represent.

Let's be frank, the proper presentation of a case involving TBI is not an inexpensive. This is every bit as true on the so-called "mild" TBI case as on the more catastrophic case.

Most cases will necessitate the retention of a neuropsychologist, a neurologist, a physiatrist, a life care planner, an economist, in addition to appropriate liability witnesses, including biomechanical engineers, and perhaps, accident reconstructionists. The costs increase further if demonstrative diagnostic testing such as PET scans, SPEC scans and the like are employed. It is therefore absolutely crucial that before you commit to the handling of a potential TBI case, your screening process has established a good liability and damage picture.

Ironically, the prevalence of traumatic brain injury is so high, the victims so needy of proper representation, that it is often the case that a brain injury is missed by both the health care professionals and by the other "professionals" with whom the client may eventually meet. From the outset, therefore, proper screening necessitates more than a cursory medical understanding of brain injury and its sequelae.

Given the number of lawyers without proper experience to handle a case involving TBI, it is up to you to properly screen those clients making it to your office in order meritorious claims are vigorously prosecuted. Again, given the frequency of brain injury in America, let's insure that only meritorious claims are brought. Please do not raise the bar to handling these cases. It is difficult enough to properly handle the so-called "mild" TBI case. When counsel attempts to sell a brain injury where one does not in fact exist, the bar is raised for those handling a meritorious claim.

Utilizing the definitions given earlier in this article, it is doubtful you will experience any difficulty recognizing the so-called "moderate" to "severe" traumatic brain injury case. For this reason, much of the discussion contained herein is more applicable a "mild" traumatic brain injury case.

Since it is not uncommon for closed head injury to go undiagnosed in the emergency room, counsel should closely examine the facts of injury and resulting impact on the victim. Counsel must not discount the probability of a head injury where appropriate facts exist. That client can then be seen by a neuropsychologist who can definitively rule out or verify the existence of, a closed head injury.

Yes, it is a sad reflection on the health care industry where a lawyer is left to "diagnose" the injuries of his/her client. Yet, it is common that a lawyer is often one of the first professionals to suspect closed head injury.

When a client presents in your office and discusses the facts of his/her case, especially when the facts involve a blow to the head, whiplash injury, rotational injury, a fall, or a flexion-extension injury, make sure you take immediate steps to explore the possibility of TBI. Again, this is not done in order to manufacture a case, but rather, should be done in order to rule out the potential of TBI. If it cannot be ruled out, your duty is clear: You must develop your case and assist your client.

With respect to physical symptoms, explore with the client how s/he reacted following the incident. Was there nausea or vomiting? Did the client experience dizziness, have headaches or experience blurred vision surrounding the accident itself? Was sensory loss experienced or did the client become increasingly lethargic following the incident? Again, it is not enough to simply review the symptoms with a client. You must satisfy yourself that such symptoms cannot be accounted for by peripheral injury or other pre-existing causes.

Next, examine, to the best of your ability, cognitive deficits experienced by the client. Recognize that the client may be in denial, or otherwise unaware of the profound impact of the injury itself.

During the client interview, question the client about attention span, concentration problems, perception, memory of the accident, and other deficits. Watch for the potential overlay between cognitive deficits and emotional problems.

Lastly, question the potential client about behavioral changes and/or alterations in personality. For example, are there changes, post injury, such as irritability. Does the client quicken to anger and/or is s/he prone to violence where no such conduct existed before the injury? Does the client now have a poor orientation to reality? Is s/he hypersensitive? Is there slowness in thinking or difficulty with planning or judgment?

Proper screening of a potential TBI case also entails the gathering of corroborative information. If your client has experienced marked personality changes since the date of incident, no better source exists than close family and friends who will have a first hand, direct and immediate appreciation of the change.

Family and close friends should be interviewed regarding the pre-morbid/post-morbid state of the victim. A significant period of time should be spent discussing the educational background of the potential client. What grades did s/he achieve in high school? What degrees were earned from universities, and in what areas of specialty? What primary schools were attended? Does the family member have an understanding as to the client's I.Q., at least as was determined during school? Corroborative evidence is the key. Your goal is to receive a clear picture of who the client was before the injury and who the client is today.

Considerable time should be spent discussing pre-injury activities of the client. Was the client a football player? Did the client engage in any sports activities subjecting him or her to repetitive concussions? Did the client have any history of potential brain injury?

Obviously, if family or friends observed the client in close proximity to the accident, or immediately following the accident, full description of client symptoms and reactions should be charted. Although family members or friends may not have accompanied client at the time of the accident, often times they will be notified and may have been present when the client was in the emergency room. Do not forget to question these potential witnesses about the trauma stage of the incident itself.

Proper interviews with family members and friends will immediately tell you if your assessment of the client is correct.

Co-morbid factors are important for at least two reasons. First, you can expect that most victims of traumatic brain injury will exhibit changes in personality and behavior post injury. Therefore, it is important to clearly understand who the client was in their pre-morbid state, and contrast that with who the client is in their post-morbid state. Often times, this evidence is best gleaned from lay witnesses, including co-workers, family and friends. The victim may, or may not, be aware of changes.

Secondly, pre-morbid personality contributes directly and indirectly to the kinds of adjustment your client may make following a brain injury. Pre-morbid ability level is closely tied to academic achievement. Thus, it is not surprising to find that its relationship to mental functioning after brain injury is high. The pre-morbid personal and social adjustment of brain damaged patients can have an affect, not only on the qualify of their ultimate adjustment but also on the amount of gain they make when benefiting from good work habits and high levels of expectation for themselves. Pre-morbid personality contributes both directly and indirectly to the kind of adjustment a patient makes following the brain injury.

Direct affects are fairly obviously since pre-morbid personality characteristics are often not so much changed as exaggerated by brain injury.

In a brain injury case, the direct effects are likely to be obvious. For example, impulsivity, acting out, anger outbursts, and dis-inhibited behavior are all recognized as symptoms of significant frontal lobe damage in a pre-morbidly kind and well-socialized person. However, when these otherwise abnormal behavioral traits are present pre-morbidly - due to age, education, etc. - closer examination will necessarily be required.

Since the defense will thoroughly review the educational records, medical chart, etc., pertaining to your client, it is absolutely necessary that you fully understand your client's pre-injury level of function.

This is not to say that if your client exhibited certain abnormal characteristics pre-injury, that the case should be declined. Rather, counsel must fully evaluate the case, much as one would any case involving aggravation of pre-existing conditions.

Pre-existing conditions in the TBI case, however, are different from that ordinarily experienced when involving other types of injury. In the TBI case, you must focus on such concepts as pre-existing stressors, depression, alcohol and drug abuse, as well as prior injury due to sports, and other injury causing events. Again, the fact that an individual suffered from or otherwise displayed such symptomology pre-morbidly does not require rejection of the case. It must, however, be carefully scrutinized, and this information is best gleaned from medical records, educational records, as well as the interviews with the client, family and friends.

Since a common defense to the TBI case is that the plaintiff did not sustain an organic brain injury, but rather, had a pre-existing depression which continued after the injury itself, even where clear symptoms of TBI occur, the defense is usually unwilling to admit to any organic change and will instead attempt to establish that the trauma had little impact on the plaintiff. For this reason, it is absolutely critical that co-morbid factors be obtained and evaluated.

Brain damaged clients must have factual information about their functioning to understand themselves and to set realistic goals, yet their need for this information is often overlooked. Most people who sustain brain injury experience changes in their self awareness and emotional functioning; but because they are on the inside, so to speak, they may have difficulty appreciating how their behavior has changed and what about them is still the same. These mis-perceptions tend to heighten what mental confusion may already be present as a result of altered patterns of neural activity.

Distrust of their experiences, particularly their memory and perceptions, is a problem shared by many brain damaged persons, probably as a result of even very slight disruptions and alterations of the exceedingly complex neural pathways that mediate the cognitive functions. This distrust seems to arise from the feelings of strangeness and confusion accompanying previously familiar habits, thoughts, and sensations that are now experienced differently, and from newly acquired tendencies to make errors. The self-doubt of the brain injured person, often referred to as perplexity, is usually distinguishable from neurotic self-doubts about life goals, values, principals and so on, but can be just as painful and emotionally crippling. Through neuropsychological testing, and treatment of brain-damaged clients, common assessment problems have been found to exist with brain damage. Some of these include:

Attentional Deficits can obscure the client's abilities in almost every area of cognitive functioning. Their affects tend to show up in those activities that provide little or no visible guidance and thus require the client to perform most of the tasks operations mentally.

Many clients have a reduced auditory attention span such that they only hear part of what was said, particularly if the message is relatively long, complex, or contains unfamiliar or unexpected wording.

Another common concomitant of brain damage is distractibility; some clients have difficulty shutting out or ignoring extraneous stimulation, be it noise or brightly colored clothing, etc. This difficulty may exacerbate attentional problems and increase the likelihood of fatigue and frustration.

Some clients have mental tracking problems; i.e., difficulty juggling informa- tion mentally or keeping track of complex information. They get confused or completely lost performing complex mental tracking tasks such as serial subtraction, although they can readily demonstrate their arithmetic competence on paper.

Some clients have difficulty retaining information, such as instructions on what to do, for more than a minute or two. They may fail a task for performing the wrong operation rather than because of inability to do what was required. This problem can show up on tasks requiring a series of responses.

A not uncommon source of poor scores during neuropsychological testing is defective retrieval. Many clients with retrieval problems learn well, but are unable to recall at will what they have learned.

Brain damaged clients tend to fatigue easily, particularly when an acute condition has occurred recently. Easy fatigue ability can also be a chronic problem, and many brain damaged persons are fatigued most of the time. Once fatigued, they take longer to recuperate than do normal persons.

Another common characteristic of brain-damaged clients, particularly those with damage to the limbic system or prefrontal areas, is loss of motivation. This condition also reflects the patient's inability to formulate meaningful goals or to initiate and carry out plans.

It is not uncommon to have clients with cerebral impairments report that they have "good days" and "bad days"; so it should not be surprising to discover that in some conditions the level of an individual's performance can very noticeably day to day and even hour to hour.

(j) Depression and Frustration: Depression and frustration are often intimately related to fatigue in brain-damaged patients, and the pernicious interplay between them can seriously compromise the client's performance. It should therefore be no surprise that an emotional response to an organic injury is not uncommon.

Assuming that as a result of the interviews, you now have a strong belief that the client's post morbid affect points to a changed person, you must nonetheless still bridge the causation gap. In essence, if you do not have a biomechanical explanation of how the client suffered a brain injury, you will not prevail at trial.

Recognizing that it would be financial suicide to advocate first retaining a biomechanical engineer for analysis of each case, you must learn enough of the biomechanics of brain injury to evaluate the case.

You must be intimately familiar with the three major mechanisms that contribute to TBI, namely: (a) impact of the brain against the skull; (b) cavitations; and (c) shear between layers of the brain.

Depending upon how the impact occurred, be it a rear-end collision, or other source, the head starts its movement to the rear while the brain resists, thereby leaving a space at the back of the skull. As this force progresses, a centrifugal force lifts the brain, thereby leaving spaces between it. Both inertia and centrifugal force cause the brain to impact against the skull. This impact may cause damage to the brain.

Cavitation occurs when mass moves rapidly through fluid. The pressure in front of the mass is high and the pressure behind the mass is low. Vapor filled bubbles form in low pressure. When a mass returns in the opposite direction, bubbles collapse. If this occurs often, the brain can be injured. Often injuries are found opposite the point of impact. This type of injury is called the "Contra-Coup" injury.

The last mechanism of brain injury is that of shear. Shear is based on rotational acceleration/deceleration, and the sliding effect of one layer of the brain upon another. Shear occurs within the brain because of the difference in density between layers.

Counsel must obtain all appropriate documentation regarding the accident itself. Photographs of vehicles, police reports, descriptions from witnesses, etc. all must be evaluated within the biomechanical framework.

If, after the client interview, lay witness interviews, and biomechanical analysis, all factors point to a brain injury, the next step is to have your client evaluated by an appropriate neuropsychologist. You can save a significant amount of money, however, through following the simple steps outlined herein first, before sending the client to a neuropsychologist.

 

 

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