TRAUMATIC BRAIN INJURY

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1 THE MIRACLE MIND THE CHALLENGE OF TRAUMATIC BRAIN INJURY Health concerns, support resources, and legal options after head injury Thomas Henson, Jr., J.D. HensonFuerst Attorneys, P.A.

2 LEGAL RESOURCES Through mom s recovery, we did not need legal services. However, after talking with other caretakers, some of whom were taking care of a loved one with a Traumatic Brain Injury (TBI), we realized that this is a very real need for many families. We discovered that a chapter explaining what to expect when you need legal services was necessary. As the caregiver, you look out for all your loved one s needs-- physical, emotional, and financial. The financial side is a different aspect of the traditional caretaker role, and you may find yourself needing a lawyer to make sure that you and your loved one receive all the compensation to which you are entitled. We quickly learned that the legal side of brain injury is complicated and can be overwhelming. With that in mind, we asked Thomas Henson Jr., an experienced and respected Brain Injury attorney, to write this chapter. The goal is to provide you with a step-by-step, easy to understand guide of what to do and expect should you need legal services for your loved one. Sonya Rulli Mary Rulli Stephenie Rulli, M.Ed., HRD authors of The Miracle Mind -- Sonya s Story: A Caregiver s Guide to Conquering Chaos, Avoiding Burnout & Helping Loved Ones Retrain Their Brain

3 The Challenge of Traumatic Brain Injury Stroke causes damage to the brain from the inside from a blocked or burst blood vessel that keeps oxygen-carrying blood from reaching all or part of the brain. Without oxygen, brain cells begin to die. The longer blood flow is restricted, the more cells die. As neurologists say: Time is Brain. The amount of permanent damage depends on how long the brain suffered oxygen deprivation, and the long-term effects on the person who had the stroke depends on which parts of the brain were deprived. Stroke s close physical cousin is traumatic brain injury, or TBI, which causes damage to the brain from the outside, from some external force or injury, such as an impact, fall, bump, or crash. What Is Traumatic Brain Injury? In the United States, someone is treated for traumatic brain injury every 23 seconds. And that doesn t even count folks who are injured but don t seek treatment. TBI can happen to anyone at any time no one is immune. One trip down the stairs, one car wreck, one fall on the ski slope, or one athlete s rung bell on the gridiron, and life can change forever. Mild Traumatic Brain Injury The severity of a brain injury ranges from mild to catastrophic. You may know mild traumatic brain injury (MTBI) by its more common name: concussion. In previous years, coaches did not take concussions seriously. They encouraged athletes to walk it off and get back in the game. Today, concussion is more often recognized as a serious health event. Doctors now recommend that athletes with concussion sit on the sidelines for a minimum of three weeks to three months after the injury to allow the brain time to heal. Although the effects of a concussion are usually short-lasting, in rare cases they can be serious, or even life threatening. It is possible for a single concussion to damage blood vessels inside the brain. The bleeding can push the brain against the skull, damaging it further. Unless treated quickly, this type of injury can be fatal, as in the case of actress Natasha Richardson who died after a relatively minor head injury on a ski slope. 3

4 SIGNS TO WATCH FOR: CONCUSSIONS & BRAIN INJURY Contact a health care professional or call 911 right away if head injury causes any of the following danger signs: Headache that gets worse and doesn t go away Weakness, numbness, decreased coordination, or slurred speech Repeated vomiting or nausea One pupil (the black part in the middle) larger than the other Convulsions or seizures Amnesia, confusion, or memory problems Loss of consciousness, even briefly Severe Traumatic Brain Injury Brain injury is different from most serious injuries because much of the damage can t be seen directly. With brain injuries, a person can look perfect on the outside, but have broken wiring on the inside. What s worse, some of the most debilitating symptoms of brain injury may not show up until weeks or even months after the initial injury. People with brain injuries can face numerous sometimes unexpected disabilities. There are three general categories of potential brain injuryrelated problems: Physical Impairments: Seizures, paralysis, loss of feeling, loss of coordination, problems with speech or swallowing, and fatigue. Cognitive Impairments: Difficulty with memory, attention, concentration, planning, judgment, learning new things, and communication. Personality, Behavioral, & Emotional Impairments: Irritability, depression, verbal or physical outbursts, and inappropriate behavior, which is like losing one s social censor the individual does or says whatever comes to mind, without any thought of consequences. 4

5 Behavioral changes are the most unpredictable, and the most frightening to those who knew the person before the brain injury their loved one acts like a stranger sometimes an unlikable stranger. The Essence of Hope The initial shock and hospitalization of a traumatic brain injury is just the beginning. As the full extent of the damage comes into focus, and the reality of life with a brain injury sets in, the challenges can seem overwhelming. Some common questions include: Where can I go for support, with people who know what I m going through? What types of experts should I consult? How will I pay for all the services needed, and plan for the financial future? There are many different resources available that you can and should consider. My recommendation is to talk to everyone, take whatever information is helpful, and team up with people you think can help you the most. Here are some of the places you can go for answers. Support and Internet Resources There are a number of excellent resources that offer an amazing amount of information for people with brain injury and their caregivers. Some (such as the Brain Injury Associations and the Family Caregiver Alliance) have searchable databases that point to local organizations across the country. You can become as involved as you want, meet in person, or simply gather information online. Some of my favorite resources are included at the end of this chapter. Medical Resources Reclaiming the brain requires a highly skilled team of experts. Every individual and every brain injury is different, but in general, an ideal brain team might include: Neurologist: A doctor who diagnoses and treats disorders in the nervous system brain, spinal cord, nerves, and muscles. This is usually the first specialist to treat a brain injury patient. 5

6 Neuropsychiatrist: A doctor with primary training in psychiatry or neurology, and special training in treating TBI patients with cognitive, emotional, or behavioral problems. Physiatrist: A doctor who specializes in physical rehabilitation, helping people to use assistive devices, prostheses, orthotics, and other tools to help restore movement and function. Neuropsychologist: A licensed psychologist (Ph.D.) who evaluates memory, thinking skills, and personality functions. Results of a battery of tests can reveal the pattern of an individual s strengths and weaknesses, which then can be used to plan treatment and rehabilitation. Physical Therapist: An expert who provides exercise guidance and hands-on manipulation to restore a person s gross physical movements, such as walking, lifting arms, and maintaining balance. Occupational Therapist: An expert who helps to retrain fine motor skills tying shoes, washing dishes, holding a pencil, and other critical small-movement actions. Speech Therapist: An expert who helps retrain speaking and swallowing skills Job Coach: An expert who helps place brain injury survivors in a suitable work position. The first step is to assess a person s ability to function in any workplace, taking into account medical restrictions, and physical and mental restrictions. Job coaches work closely with both patients and potential employers to make sure that the new employee fits into a safe, appropriate and welcoming environment. Life Care Planner: An expert who can identify and assess the future problems likely to be faced by a person with brain injury, and then help plan for a lifetime of medical, psychological, and financial needs. A Life Care Planner understands and anticipates specific future needs, such as the timing and cost of replacement wheelchairs, medical supplies and planned interventions, physical and occupational therapy needs, and the cost of hiring respite or long-term care. Case Manager: An expert who coordinates needed services on behalf of an individual who needs treatment from multiple sources. For children with brain injury, the list of potential experts changes slightly. Many of the above disciplines have subspecialties specifically for pediatric 6

7 patients. Because children s brains are still developing, the entire effect of brain injury may not become fully apparent for years. Pediatric brain injury specialists can work with parents and schools to make sure that the child s needs are addressed at each developmental milestone, and that the child has the best chance to fulfill his or her highest potential. Legal Resources No one ever wants to think about lawsuits. That s understandable. Litigation is emotionally draining and time consuming. It s often uncomfortable to be forced to consider whether someone may be at fault for causing the injury and whether you have the right to ask for compensation. The purpose of this book is to give readers all available resources so they can navigate the complicated path of brain injury recovery. Unfortunately, the path to recovery often involves a consideration of how to pay for treatment, rehabilitation, and the future needs of the brain-injured individual. There are countless ways brain injury can happen through someone else s fault. The most common are motor vehicle wrecks, defective products, workplace injuries, playground injuries (if play area is not properly maintained according to known safety standards), and premises liability (which can occur when some part of a building or location is neglected or allowed to become unsafe). Potential brain injury cases are not always clear. For example, what might seem like a simple trip on a sidewalk may turn out to be a latent defect in construction, which could have been caused by owner neglect or defective materials in the concrete. An attorney can piece together the puzzle of cause and effect to determine if the circumstances warrant legal action. The only way to know for sure whether you have a valid legal claim for recovering financial losses due to the injury is to talk with an experienced brain injury attorney. As a member of your treatment team, a traumatic brain injury attorney often will be the only one with a view of the big picture a 25,000-foot view of all the issues discussed above. A good lawyer on your side can serve as the thread that weaves through all the other aspects of care, stitching your life back together as you and your family progress through treatment. 7

8 Checklist for Choosing the Right Attorney lawyers, including their education and years of specific experience. Talk to an attorney as soon as possible the earlier the better. Evidence needed to bring a lawsuit (such as photographs, witness statements, and other physical evidence) can disappear or become less reliable as time passes. Most importantly, there is a deadline (called a statute of limitations) by which you must file a lawsuit, otherwise you could lose all rights to recover for your losses. Get recommendations for reputable TBI attorneys. A good first step in finding an experienced TBI attorney is to ask around for recommendations. Some good sources of information include: Families of other brain injury victims; Brain injury support group members and organizers; Doctors, nurses, and other brain injury professionals; Internet. You can learn a lot from a law firm s website. For example, many firms list biographies of individual Call to make an appointment for an initial consultation. When you call, ask to schedule an initial consultation with a lawyer who is experienced in handling traumatic brain injury cases. What to expect during the call: Sometimes during this first phone call, a paralegal or case manager will take all of your initial information about the traumatic event and the injuries. The initial call can take 30 minutes or more, so be sure to allow enough time. By the time you hang up, you should have an appointment scheduled with the attorney. The initial consultation with the lawyer should always be free of charge, so be sure to ask. If the attorney charges an initial fee, look for a different lawyer. 8

9 Prepare for the first meeting. The initial consultation is a time for you to evaluate the attorney, and for the attorney to evaluate the merits of your case. Not every lawyer will accept every case, and those decisions are based on part on information you provide at this meeting. Pictures are critical. If possible, use a good, high-resolution camera, but if you only have a cell phone camera, use that. Take photos as soon as possible, and from many different angles. Here are some examples of photos that can be extremely helpful: Photos of your loved one before and after the brain injury. This puts a human face to the case, and can be illustrative of the devastating impact a brain injury can have. Photos of people or objects related to the injury; Photos of the scene of the accident, the product that caused the injury, or the location of the traumatic event; Photos of the actual injuries lacerations, bruising, or other physical marks before they heal. Other items to bring if you have them: Any notes you have made about your loved one s medical condition or the incident that caused the injury; Any medical records you have. If you don t have any, don t worry about getting them that s part of the law firm s job. Police reports or witness statements about the incident that caused the injury; A companion or second family member, for support or to serve as an additional source of information; Note pad and pen with prepared questions and to take notes. Ask questions. During the initial consultation, the lawyer will ask questions to help evaluate the merits of your case and you should ask questions to help evaluate the merit of the lawyer. It might help if you write down your questions ahead of time to avoid forgetting important points. Your goal is to choose an attorney who has extensive experience dealing with brain 9

10 injury cases especially cases similar to or more complex than yours. Here are some questions other clients have found helpful: How many years have you represented brain-injured individuals? How many brain injury cases have you handled in total and how many did you handle last year? What types of TBI cases have you handled concussion? Brain bleed? Severe brain injury? What is the most severe brain injury you have ever dealt with, and how did the case progress? Do you belong to any brain injury groups or associations? Which ones? How are you involved with the brain injury community? What types of medical professionals do you recommend to help my loved one regain as much functionality as possible? What are the most significant changes in brain injury treatment that you have seen over the course of your career? What resources are available to pay for mounting medical and care expenses? Given what you know so far, what do you think of this case? How are you paid? Traumatic brain injury lawyers are typically paid on a contingency basis, which means they do not get paid an attorney s fee if there is not a financial recovery. There are also costs involved with hiring experts and other litigation expense. Different states have different requirements and guidelines regarding fees, and you should ask the lawyer for a detailed explanation of how their compensation is determined, and their approach should also be clearly spelled out in the written contract agreement that you will ultimately sign to hire the lawyer. What to Expect After You Hire an Attorney Once you have chosen an attorney, he or she will begin the often-lengthy process of investigating the case and moving it 10

11 towards resolution. Depending on the complexity of the case, the litigation process can take up to several years. This often results from the length of the recovery time for the TBI survivor, as well as the time required for the legal process to unfold. Although each case will vary, the process can involve multiple progressive stages: 1. Case Investigation & Evaluation a. Liability Investigation. The lawyer lays the groundwork to insure that the at-fault parties can be proven to be at fault in court. The attorney will begin talking to people who witnessed the event, consulting with and possibly hiring engineers or other accident reconstruction personnel, and getting reports from investigative agencies, including law enforcement. b. Medical Investigation. The attorney will acquire a full set of medical records, consult with treating physicians, and attempt to make a determination as to a possible long-term prognosis for the TBI patient. In addition, the lawyer will consult with one of more of the experts listed above (medical specialists, life care planners, economists, etc.) in order to fully document and render opinions about the costs of care, as well as other losses that the victim or the family has suffered. Remember that once a case is resolved and a settlement paid, a document is signed that releases the negligent person or company from any further liability (or payment) associated with the injuries. Therefore, a traumatic brain injury lawyer must carefully account for all eventualities, looking as far into the future as possible to insure that all potential costs of care are documented and taken into consideration for settlement purposes. 2. Litigation Phase Not all claims have to be filed in court; some can be settled without filing a lawsuit. However, sometimes litigation cannot be avoided. If that occurs, your attorney should explain why going to court is necessary, and give you the anticipated time line for moving the case forward. Although every jurisdiction is different, the general steps for a case are: 1. Filing of the complaint; 11

12 2. All defendants file responses to the complaint (30-60 days); 3. Written discovery between the parties, known as interrogatories and requests for production ( days); 4. Depositions (statements made under oath) taken of the parties, witnesses, treating physicians, and other fact witnesses (several months, depending on number of witnesses); 5. Designation and depositions of retained experts (several months, depending on number of liability and damage experts retained by each party); 6. Mediation, an alternative dispute resolution mechanism in which all parties to a dispute meet to explore the opportunity to get the case resolved by agreement, rather than continuing the adversarial process. In many jurisdictions, this is a mandatory step. (Exactly when in the time line the mediation occurs is different for every case. The mediation itself generally lasts a day, but in complex cases it may last several days.) mediation, the case will be set for trial and tried before a jury in court. (The trial itself can take several weeks or months, depending on the nature of the case and the nature of the injuries in particular.) The above process may seem daunting, but remember that your attorney will do the work. Brain injuries can be life altering with permanent consequences, changed lifestyles, and significant financial and emotional losses. With so much at stake, it is important to trust your legal team to do what is in the best interest for you and the TBI victim. The goals of the case are to provide the proper care, best quality of life, and security throughout the life of the TBI survivor. Your lawyer s job is to help you envision this outcome from the start, and to work tirelessly with you every step of the way to maximize the chances of success. 7. If there is no settlement by the end of 12

13 About the Author Thomas Henson Jr. is the managing partner of the catastrophic injury and complex litigation division of HensonFuerst Attorneys, which serves TBI victims and their families nationwide. Thomas focuses on cases involving traumatic brain injury, catastrophic personal injury, spinal cord injury, and nursing home elder abuse and neglect. He has personally represented hundreds of people with traumatic brain injury, both children and adults with every type of brain injury, including concussion, coma, and brain bleeds. Thomas serves on the Board of Directors of the Brain Injury Association of North Carolina (BIANC), advocating for brain injury victims and their families across North Carolina. Every year, he presents and speaks at multiple brain injury conferences for professional caregivers, TBI victims and their families. He is also a member of the Traumatic Brain Injury Litigation Group of the American Association for Justice. In 2009 and 2011, Thomas was designated a North Carolina Super Lawyer by Law & Politics Media. This award involves a rigorous selection process, evaluating quality in the most objective possible terms, verifying and validating all data. In 2007, Thomas received the Order of Service from the North Carolina Academy of Trial Lawyers. The award is given to members for generous contributions of service in advancing the Academy s mission of protecting people s rights. He received the Order of Service a second time in 2010 from the North Carolina Advocates for Justice. 13

14 Thomas and his firm devote a large amount of time and resources every year to the prevention of brain injury, especially in activities involving children. For example, the firm created the HensonFuerst Health Initiative a comprehensive program that encompasses all of the firm s community and service efforts to encourage both firm and community involvement toward efforts designed to prevent injuries and accidents, improve health and fitness, and aid organizations committed to improving the health and well-being of all people. One of the most successful of these safety programs is the My PSA Contest!, an annual contest that challenges North Carolina high school and middle school students to create videos about the importance of bicycle safety. This contest allows young people to help other children prevent injury by demonstrating the importance of following rules of the road and--of course--wearing a helmet to reduce the risk of brain injury in the event of an accident. You can see examples of the videos these talented students create here: For more information about Traumatic Brain Injury and your legal rights, please visit the HensonFuerst Attorneys website at We also provide the latest TBI news and information on our blog, which you can read here: https://plus.google.com/ / 14

15 Support & Internet Resources U.S. Centers for Disease Control and Prevention (CDC). For statistics and general information. Brain Trauma Foundation. Treatment guidelines, videos, TBI glossary, and other valuable information. Brain Injury Association of America. Search for local brain injury associations that can be contacted in person or via /internet; includes information about living with brain injury. Brain Injury Association of North Carolina (BIANC). North Carolina-based organization that provides information for caregivers, fundraising opportunities, and community resources. Defense and Veterans Brain Injury Center (DVBIC). A congressionally mandated collaboration of the Department of Defense (DoD) and Veterans Affairs (VA) health centers serving patients with TBI. Family Caregiver Alliance/National Center on Caregiving. Information on caregiving, steps for new caregivers, state-by-state resources for caregivers. 15

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