What Client's Attorney Needs to Know to Handle TBI Cases

This article is a compilation of recent material relevant to how an experienced attorney handles brain injury litigation. The article includes references to numerous resources on the subject, including some previously written by Mr. Goldin for this website. Due to recent publicity as to the effect of such injuries on those active in certain sports and military services, the public is also becoming more aware of the seriousness of concussions. 

Paradoxically, potential jurors (the public), are demanding even better proof of the damages suffered by the claimed brain injury victim. Why? This article discusses the brain, and brain injury litigation, which may answer this question, as well as numerous others posed in the article.

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The purpose of this article is to emphasize the importance in your case of disclosing the full extent of any such pre-existing conditions as soon as possible. This cannot be overstated. It is essential you be the first to tell the story of your "weaknesses." Otherwise, you can bet your bottom dollar (and you don't have nearly as many dollars as the insurance company defending against you), the defense will destroy your case with this evidence. Try to follow the advice of Michael Jordan, perhaps the best basketball player ever to play the game: "My attitude is that if you push me toward something that you think is a weakness, then I will turn the perceived weakness into strength." And you need to outdo Jordan: You must disclose your weaknesses first without the push. If you wait for the defense to "find" what you hope is a "needle in the haystack," it is likely your undisclosed pre-existing conditions will become the "elephant in the courtroom."

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$10,800,000 verdict in San Diego Superior Court--catastrophic brain injuries. 

If your life is destroyed by someone else's carelessness and the cost of your past and future medical care totals almost $5 million, would $10 million be too much to compensate you for all of your harms and losses? Would it be enough?

An 18 year-old Pizza Hut driver with a history of seizure-like activity, driving on cruise control at 40 miles per hour in the opposite direction of traffic, on the route to deliver pizzas to Pizza Hut customers, crosses three lanes of traffic to crash head-on into your vehicle.  Your car is crumpled - Jaws of Life has to cut you out of it.  You are reduced to the mental capacity of a three-year-old child in many respects.

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These materials are intended to provide a good resource for lawyers who want to become more knowledgeable about the brain and brain injuries, including access to information available on the Internet to learn about the brain, how it is injured, and legal proof of that injury. 

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Breaking the Silence
on Brain Injury

What do Steve Young, Troy Aikman, Stan Humphries, Eric Lindros, Pat LaFontain, Dale Ernhardt, Jr., Chris Irwin, George Clooney, and probably 20% or more of our troops returning from Iraq and Afghanistan, have in common? This is an increasingly important question; please take a moment to think about it before reading on. It is time to break the silence of the TBI epidemic.

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When trauma to the soft brain tissue occurs, whether from falls, blows, crashes or blasts, this often causes stretching or tearing of axons resulting in the nerve impulses not transmitting or transmitting less efficiently. It is as if each time you want to turn on the lights in a room in your home you have to try the switches in several different rooms to do so, sometimes without success.

Here are two animations from YouTube illustrating what happens when there is trauma to the brain: 

http://youtube.com/watch?v=gCMS8aOmK1M; http://youtube.com/watch?v=AmAML1-F2LE. 

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The horror of traumatic brain injuries being suffered by our troops in Iraq and Afghanistan is becoming increasingly evident. The most damaging weapon of this war, the improvised explosive device (IED), is leaving a signature wound on our heroic troops: traumatic brain injury. Even when not knocked out by the blast, the forces unleashed by the explosion can leave permanent scars on the brain without visible wounds. Our returning soldiers may not even know they have been injured but can not account for the changes in their cognition, behavior and personality. They may find themselves confused, irritable, restless, unmotivated, angry, unable to focus their attention, disorganized, lacking former judgment, slow in thinking, with memory deficits, depressed, and feeling "like a different person," and yet not realize that this is caused by a traumatic brain injury.

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What do Steve Young, Troy Aikman, Stan Humphries, Eric Lindros, Pat LaFontain, Dale Ernhardt, Jr., and George Clooney all have in common?

All have suffered a traumatic brain injury or concussion. Any concussion is a brain injury, a short paralysis of the brain, although many do not realize that. With the exception of George Clooney, all of these football, hockey and NASCAR stars were wearing state-of-the-art helmets when they sustained their brain injuries.

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This article deals with how a lawyer handles brain injury litigation, especially those cases in which injuries are characterized as "mild."

The paradox of an apparently minor trauma causing major injuries and damages must be explained. To accomplish this in a courtroom, it is of utmost importance that credibility of the client, attorney and medical team be established. Without credibility, the reality of the brain injuries will not be believed by those who need to be influenced in the litigation, namely, the opposing party and its insurance company, the judge, and ultimately, the jury.

The article is included in the new 2014 coursebook, "Law and Neuroscience," the first such text dealing with the relationship between these two subject matters.

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Brain Injury Speaker's Series, Legal Evidence & Tactics:

Proving Invisible Brain Injuries in Court

Presented by the San Diego Brain Injury Foundation in Cooperation with the University of California.

Mr. Goldin and another attorney discuss and answer questions about "mild" traumatic brain injury.

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What is "Mild" Brain Injury?

"Mild" or "minor" brain injury can be a tragic misnomer because these injuries often cause lifelong disabilities. Typically, the diagnosis of mild brain injury is given where there is trauma to the brain, but the trauma results in only brief unconsciousness, or none at all, and the brain injuries do not show up on imaging studies such as an MRI or CT scan. The condition is sometimes called "post-concussion syndrome or disorder" or "post-traumatic syndrome," with the latter term including those cases where there is no concussion. Various statistics estimate that two million people suffer traumatic brain injury each year in the United States of whom 400,000 are hospitalized. Tragically, while most of those suffering "mild" traumatic brain injury recover, there is a "miserable minority" who suffer lifelong consequences, sometimes involving profound disability.

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Recovery of Damages for Traumatic Injury to 
the Miraculous Brain

The healthy brain is a miracle. It controls everything we do. The 100 billion or so nerve cells in the three pounds of flesh we call the brain direct all of our thoughts, feelings, movements, vision, hearing and memories. Injuries to the brain, even "mild" injury, change who we are as a person. See "What is "Mild" Brain Injury?" Our brains are what make us human.

Recovery, however, from brain injury, is not a miraculous process. Rehabilitation, to the extent possible, requires hard work and multi-disciplinary approaches which may involve the fields of neurology, neuropsychology, psychiatry, behavioral medicine, orthopaedics, family medicine, pediatrics, physical medicine and rehabilitation, vocational rehabilitation, speech and hearing, physical therapy, occupational therapy, education therapy, social work, case management and life care planning. 

In those circumstances where brain injury is due to someone else�s carelessness, whether from an accident, malpractice, product defect, or otherwise, it is most important to involve an experienced and caring lawyer at an early date. Recovery of fair compensation from those responsible for the harm may be necessary for rehabilitation and support of the survivor for the rest of his or her life. If the survivor has died, early retention of an attorney is important to establish fault and preserve the evidence.

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Retaining your lawyer may be the single most important decision for brain injury survivors and their families. When a person becomes brain injured, the entire family suffers with injuries which can be financially, medically and socially devastating. In those cases where others are at fault in causing your brain injuries, it is most  important the family retain effective legal representation. A competent and caring lawyer is necessary for you and your family to receive reasonable financial compensation for the harm. Fair compensation, in turn, offers the best possible chance for recovery and adjustment on a long-term basis.

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A form used to develop information provided to the client at the outset of the case and periodically thereafter.

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Spinal cord injury disconnects the brain from the body below the injury site. Almost everybody knows that spinal cord injury causes paralysis, but many are not aware that the spinal cord also controls the bladder and bowel, sexual function, blood pressure, skin blood flow, sweating, and temperature regulation. Together, the brain and spinal cord make up the central nervous system. The spinal cord itself is the largest bundle of nerves in the body carrying nerve impulses, both motor and sensory, to and from the brain to the rest of the body.

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There is a great deal that can be done to maximize recovery from spinal cord injury (SCI) with planning and sufficient resources. Christopher Reeve (Superman) suffered a C-2 level spinal cord injury in an equestrian competition in 1995. Before his death in 2004, Chris Reeve taught us how hope, determination and sufficient resources enable recovery from even the most devastating spinal cord injury.

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(Updated Oct. 2014)

Over the years my office has handled numerous medical malpractice cases, virtually all of which were concluded successfully for our clients. We have obtained six and seven figure money recoveries for our clients. The reason for the success is simple: We do not handle medical malpractice cases unless the evidence of the malpractice is clear and convincing from the outset of the case. The reason for this is simple too, in California the most difficult cases are those involving medical malpractice. If the evidence of medical malpractice is not clear and convincing, it is most likely that the case can not be won. 

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Wrongful death is profoundly about family life. If your loved one has died as a result of the carelessness or misconduct of another person or entity, the loss to the family may be unbearable. That the family is entitled to compensation for this terrible loss goes without saying.

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