Personal Injury Litigation: Recognizing and Litigating Traumatic Brain Injuries

By Aaron Marks
Marks Law Group

At least 1.7 million traumatic brain injuries (TBI) occur each year according to the Centers for Disease Control and Prevention. TBIs occur when great force is exerted on the head by a fall, blow, or penetration. Common causes of TBIs include falls, auto and truck accidents, physical violence, and combat injuries. TBIs can cause temporary or permanent impairment. In my practice, I have handled several TBI cases, and while each case has its own challenges, there are some recurring issues that set these cases apart from other personal injury cases.

Recognizing TBI

The first hurdle of handling TBI cases is that the injuries are often not easily recognized. All too often TBIs are not diagnosed quickly, and the injured party suffers twice: first, from the actual injury, and later, when the injury is questioned or doubted, and the injured party must prove he or she actually suffers from a TBI and is not “malingering.”

Symptoms vary from person to person and there is no one definitive diagnostic test on which doctors can rely. Depending on the severity of impact, the person may or may not lose consciousness. Immediate symptoms often include confusion, dizziness, ringing in the ears, blurred vision, headache, nausea and vomiting. Other symptoms include changes in mood and sleep patterns, seizures, depression, anxiety, fatigue, and combativeness.

Symptoms also do not necessarily appear immediately. Children under the age of four are at high risk for TBI, but in young children, TBI can be even harder to recognize. Symptoms in children may include changes in eating and sleeping habits, balance, irritability, and persistent crying. And although computed tomography (CT) scans may be able to show bleeding or swelling in the brain, “mild” TBI—which can result in permanent injuries—may not be picked up on any imaging test. New research also indicates that functional magnetic resonance imaging (fMRI) may be able to show mild TBI in some cases.

Unfortunately, in many cases, anecdotal evidence of changes in mood and cognitive function may be the main evidence of injury. This presents a particular challenge if there are few people who see the client regularly and can explain differences in behavior and functioning before and after the accident. It is up to the attorney to make sure the jury understands how TBI occurs on a mechanical level, what symptoms look like, and how TBI can impair functioning. In addition to CT scans, you may need to have your client evaluated by a neuropsychologist, a vocational rehabilitation expert, a functional rehabilitation expert, and/or a neurologist.

Proving Damages

Proving damages in TBI cases can also be a challenge. There is no set monetary value for losing a person’s personality. One of my clients suffered a head injury after being struck by a falling wall at a nightclub. After regaining consciousness, his vision and auditory senses suffered, and he continued to occasionally lose consciousness. Although he was still able to care for himself and work as a manual laborer, family members reported that he was no longer himself. His personality and sense of humor had changed.

How do you quantify a child’s ability to speak? In another case, my client’s two-year-old suffered a fall at daycare. The child experienced changes in appetite, sleep and balance. But the most challenging issue is the lack of an objective, verifiable way to know if he is developing to his full potential. There is simply no objective, verifiable way to discern if his cognitive development has been impaired by the fall. It is up to the plaintiff’s attorney to help juries put numbers on these impairments.

Ethical Issues

In cases where clients have suffered serious injuries, ethical issues often emerge. In one TBI case, my client, a middle-age woman, suffered a head injury in a car accident. One year later, I represented her in a suit for a subsequent car accident. While she was always present and conscious, she was oftentimes combative, questioning who I was, and what role I played in her life. As we approached the end of the case, I worried whether she could meaningfully consent to her settlement. In some cases, when clients are seriously impaired, you may have to have a guardian appointed to represent your client’s interest and make decisions on the client’s behalf.

Aaron Marks is an Atlanta personal injury attorney practicing in DeKalb County. For more information about Mr. Marks and his practice, please visit: markslawgroup.com. For attorneys interested in learning more about TBI, Mr. Marks recommends the Brain Injury Association of Georgia website, braininjurygeorgia.org.