Brain Injury Litigation. Peter W. Burg Burg Simpson Eldredge Hersh & Jardine, P.C.

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1 Brain Injury Litigation Peter W. Burg Burg Simpson Eldredge Hersh & Jardine, P.C.

2 Some General Facts About Traumatic Brain Injury TBIs contribute to a substantial number of deaths and cases of permanent disability annually. Of the 1.4 million who sustain a TBI each year in the US: 50,000 die; 235,000 are hospitalized; and 1.1 million are treated and released from an ER. Among children ages 0 to 14 years, TBI results in an estimated: 2,685 deaths; 37,000 hospitalizations; 435,000 ER visits annually Some leading causes of TBI are: Falls Motor Vehicle Incidents Struck by or Against Something Assaults Work Related Injury

3 Causes of TBI

4

5 Traumatic Brain Injury Defined According to the Brain Injury Association of America, Traumatic Brain Injury (TBI) is defined as: An alteration in brain function, or other evidence of brain pathology, caused by an external force.

6 Presenting and Trying Brain Injury Cases is Like Other cases in Many Respects; However, There are Some Unique Considerations Involving Law, Science and Story Telling.

7 Anatomy of a TBI

8 Need to think early on about issues relating to capacity, guardians and conservators, especially In moderate and severe TBI cases.

9 It Is Important to Plan Carefully

10 You Need to Prepare to Meet All Contingencies

11 TRIALS ARE STORIES And how you tell the story matters!

12 Story telling with specific observations of changes is critical. Make the jury understand and visualize before and after.

13 Family members can be wonderful before and after story tellers, and often are forgotten victims.

14 Presenting a compelling story in court requires a multi disciplinary approach.

15 Medical providers, psychologists, neuropsychologists, neurologists, therapists, Vocational rehabilitation experts, economists, life care planners all often play Important roles in case presentation and story telling. Our

16 Imaging and expert explanation is critical.

17

18

19 You also will often find yourself in The Twilight Zone between science and law.

20 TWO DIFFERENT WORLDS WITH DIFFERENT RULES COLLIDING AND CONNECTING LAW SCIENCE

21 BIZARRO SUPERMAN, PERHAPS??

22 DIFFERENT STANDARDS OF PROOF SCIENCE: Scientific Method Hypothesis Proof Validity Medical Certainty LAW: Theory Advocacy Persuasion Legal Probability

23 Battleground often focuses on diagnostic tests and imaging in context of science community view on evaluation and treatment benefit and legal community focus on admissible, tangible evidence for presentation to the jury.

24 Historically, tests such as CT & MRI have not been much of a battleground, typically in either the science community or legal community in circumstances involving moderate and severe brain injury cases.

25 However, CT and MRI have been used and abused often in cases defined as mild or mild to moderate traumatic brain injury. Defense uses to validate absence of any permanent injury Plaintiffs highlight the limitations with focus on observable baseline changes, behaviorally, emotionally, and cognitively

26 The Definition of TBI Sounds Easy.However The definition of TBI has not been consistent and tends to vary according to specialties and circumstances. Often, the term brain injury is used synonymously with head injury, which may not be associated with neurologic deficits. The definition also has been problematic with variations in inclusion criteria.

27 INVISIBLE INJURY Part of the problem is that often, TBI s are an invisible injury with no or limited signs of trauma.

28 Much of the debate focuses on the criteria to define mild TBI and permanent impacts and residual deficits.

29 It is estimated that between 80 and 90% of the 1.7 million new cases of traumatic brain injury each year fall into the mild traumatic brain injury (mtbi) category. Most cases of mtbi are Grade I and II concussions, i.e., there is no loss of consciousness % of mtbi patients do not recover and go on to have chronic, debilitating sequelae. (1,2, 3) There are approximately 200,000 new cases of mtbi who become disabled every year in the civilian population. 1. Schutze et al (2008, Jun). [Which Factors are Predictive for Long Term Complaints after Mild Traumatic Brain Injuries?] Versicherungsmedizin, 60(2), pp Alexander, MP (1995) Mild Traumatic Brain Injury: Pathophysiology, natural history and clinical management, Neurology, Vol 45 (7) pp Gordon et al (2000). The sensitivity and specificity of self reported symptoms in individuals with traumatic brain injury. Brain Injury, 14, pp

30 MISERABLE MINORITY While the majority of people will recover from a mild TBI in the absence of a new injury during the recovery process, there is substantial documentation of a miserable minority (Ron Ruff, neuropsychologist) who face life altering changes after suffering a concussion or mild traumatic brain injury.

31 Unfortunately, many in the science community have been dismissive of this miserable minority and the legal defense community has embraced such skepticism and isolated limited tests to reduce compensation for truly injured people.

32 From a plaintiff lawyer s perspective, the attempt to get fair compensation for life altering symptoms is too often met with skepticism or even outright claims of faking or malingering. This only adds insult to injury to a brain injury victim as it occurs at a time when they need understanding and compassion, as well as the best possible treatment and diagnostic options.

33 The Controversy Most mtbi cases have a positive outcome; the controversy exists in whether lasting sequelae occur. Typically, the neurologic examination is negative other than subtle cognitive complaints and subjective symptoms (e.g., headache, dizziness), as is structural brain imaging. After head injury, the absence of definitive findings and a Glasgow Coma Score at or above 13 is the standard that defines mtbi. A score of 12 or below is considered moderate to severe. Conventional structural imaging such as CT or MRI may reveal contusion or hemorrhage however, such findings occur in fewer than 20% of mtbi cases. Diffusion Tensor Imaging: A Biomarker for Mild Traumatic Brain Injury? Erin D. Bigler, PhD. And Jeffrey Bazarian, MD, MPH. Neurology, February 23, 2010, vol. 74 no

34 Glasgow Coma Scale

35 Post Concussion Syndrome Following a traumatic brain injury, several of the following symptoms may develop: Headaches most common feature, occur in 60 80% of cases. Memory problems occur in 20 40% of cases. Dizziness occurs in 15 30% of cases. Sleep disturbances occur in 5 20% of cases. Fatigue occurs in 5 25% of cases.

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