By Brian S. Kabateck & Benjamin Hakimfar
1.7 million Americans sustain a traumatic brain injury or “TBI” every year in the United States. A TBI occurs when a sudden trauma causes damage to the brain, usually the result of when the head suddenly and violently hits an object, or when an object pierces the skull and enters brain tissue. The symptoms caused by such an injury can be anywhere from severe to mild, all depending on the extent of the damage to the brain. Symptoms include dizziness, unconsciousness, blurred vision, headaches, confusion, lightheadedness, fatigue, and change in sleep patterns or behavioral moods. Yet, with motor vehicle accidents taking stage as a leading cause of TBIs—accounting for 20% (Brain Injury Association of California)—Plaintiffs in today’s legal world are required to take more drastic steps to convince the opposing party that they indeed do suffer from a traumatic injury. From our experience, it is essential for all clients to retain and be examined by a neurologist, neuropsychologist, and life care planner before seeing any reasonable compensation. Some insurance carries won’t even talk numbers until the Plaintiff is seen by all three. Needless to say, all Attorneys with TBI clients must be familiar with the role each specialist plays and what they bring to the table.
Normally, a neurologist is a physician that your client likely sees immediately following a head injury. However, if that is not the case, it is crucial that they see a neurologist to make the proper diagnosis; if your client is portraying the common symptoms of a TBI. Neurologists deal with nerves and the brain and determine to see if anything abnormal is going on with the brain and ultimately determine if a TBI has been sustained. They are without doubt crucial to any TBI case especially as they will testify about the injuries resulting from the incident causing the TBI, including the MRI results, mechanisms of the injuries, the diagnosis, prognosis and causation. They also will be familiar with the client’s medical treatment, hospitalization, surgeries, and their present and future medical care.
Now that your client has been diagnosed with a TBI, you need to figure out how this affects their daily life and their future health. A Neuropsychologist is a psychologist, except they are specially trained in the behavioral effects of the brain and provide testing to the patient seeking to determine which area of the brain is damaged. Dr. Travis Fogel, a neuropsychologist at Loma Linda Hospital, describes his field as the study of “brain-behavior relationships.” In other words, anytime something happens to the brain – or is expected to be affecting its functioning – depending on what it is and where it is, behavior can be affected very differently. Behavior refers to three main areas: thinking (e.g., memory, attention, concentration, processing speed, language, judgment and reasoning), physical abilities, and personality/mood. Neuropsychologists use standardized tests – typically paper-pencil ones – to see how the brain is working. Neurologists compare how an individual performs compared to peers of the same age, education, and/or gender. Everyone has strengths and weaknesses, but certain diagnoses have certain fingerprints of areas that are weaker than others. This can give us information about the cause or origin of symptoms, their severity, and their likely functional impact. Dr. Fogel describes the process by analogizing it to a car: “The car may look fine, but what happens when you turn on the engine? It is the job of neuropsychologist to see how the engine is running. Oftentimes persons with traumatic brain injuries may look fine (something we refer to as the ‘invisible injury,’ wherein if someone looks 100%, they are often treated as 100%), but show significant impairment on neuropsychological testing.”
Life Care Planner
You now have a proper diagnosis of a traumatic brain injury for your client and have determined its effects. The last of the three necessities is a Life Care Plan, which ultimately determines the costs for such an injury in the future. A Life Care Plan is a tool used for determining future medical services costs, equipment and supplies for an individual based on their personal medical status. The life care plan is a dynamic document by way of its published standards of practice, comprehensive assessment, data analysis, and research for TBI patients. But most importantly, it provides an organized, concise plan for current and future needs with associated costs for your client. Dr. Khyber Zaffarkhan, a physician who formulates life care plans for patients, describes his process as, starting off with: [a] “comprehensive evaluation of the injured patient. From there, I will review recommendations of various other physicians who have also evaluated or treated the patient. I also set forth my recommendations as I see fit. Then comes the hard part; the arduous task of researching regional costs of care which by far is the most time-intensive portion of developing a life care plan. After that is complete, the information is compiled into a concise but easy to read report.”
Traumatic brain injuries can have direct effects on your client, which may be long-lasting or permanent. Your client’s deposition testimony identifying common symptoms of the injury or inconclusive statements that they “may have” a TBI listed in a couple pages in their medical records is not enough to seek the proper amount of damages. Therefore, it’s important to have your client be treated by a neurologist in the early stages of litigation, followed by seeing a neuropsychologist and life care planner before you can make a demand, and before Defense will even agree to make a reasonable offer.