A grown man is sitting across from my desk crying. He is well accomplished and can’t understand why he has lost focus in his life since hitting his head inside his car in an auto accident. He can’t remember phone numbers he has known for years. It takes him 5 times as long to do the tasks he did at work. He thinks he has early dementia and can’t understand why, at the end of the day when he comes home, he starts weeping. I know this man well from handling cases like his for decades, and even though I am not a doctor I know he has symptoms of a concussion. Neurologists will use many terms to explain his dysfunction all of which vary with the severity: closed head injury, traumatic brain injury (TBI), post-concussive syndrome, diffuse axonal injury (DAI) and other names as well. For the more catastrophic injuries the patient has had an intracerebral hemorrhage (bleeding) and swelling of the brain. For the sake of simplicity, I will collectively refer to all this under the category of a brain injury caused by trauma. Sometimes the trauma can cause a shearing of the neurons in the brain: too small to be seen with the naked eyes or CT scans and MRI’s but nevertheless causing serious dysfunction of the brain pathways.
The tests done at the hospital are frequently negative, unless he has a major injury such as a subdural hematoma or subarachnoid hemorrhage—-bleeding that can require emergency surgery. Much of the time he has had all negative tests but he knows something is not right in his head. He had headaches, is dizzy, memory loss he can’t quite grasp and he just seems slower than usual. He is accompanied by his wife who tells me that since this accident, he has not been the same person. I explain that one reason is crying at home (as neurologists have explained to me) is that he is so frustrated by having to labor so hard to do the same tasks he did before, that his emotions overflow at the end of the day. His private life is not only different but his work life may never be the same. If he has a job that requires lots of focus and detail work, such as transposing figures or solving problems on a computer, his doctors will first give him six months to get better. Most brain injuries resolve within that time, but if the symptoms persist, he will be followed for a year or two and usually after two years his doctors will tell him that his symptoms will be permanent. Many companies will not wait that long to keep someone who can’t function—most of the time the victim is simply out of work.
The man sitting across from me is conflicted. He doesn’t want anyone to know he has brain damage that can affect his ability to do his work. He knows he will need to get more tests but he fears the results may eventually have to be disclosed to people who rely on him.
My job as his lawyer is to get him fair compensation for all that has been taken from him, including the ability to do his job well.
I also tell him that the insurance company against whom we will be making a claim will simply say he is exaggerating. Unlike an x-ray showing a fracture to your hand, which is undeniable, someone can have a brain injury and will have entirely normal CT scans and MRI’s. His emergency room record is one of the most important documents that can help prove his damages: if it shows he lost consciousness, or complained of symptoms associated with a brain injury, that helps with proof in a court, but it is not definitive. When you go to the ER complaining of a blow to the head the doctors perform a Glasgow Coma Scale (GCS) exam and rate you from 1 to 15. If you score high on that, (15 being the best), the insurance company will use it to say you were just fine, even though you can have a perfect score on the Glasgow Coma scale and still have a brain injury. Even if I have represented a patient who had a low score on the GCS, (8 or less) the insurance company will simply say it was a temporary condition. Doctors use the GCS as a standard neurological tool to help them triage emergency room care but my experience is that insurance companies, in defending brain injury cases, come up with an argument for the GCS that will always try to minimize the injury. (If it is high they embrace it, if it is low they assert is was just transient and argue that the patient will certainly get better).
The film CONCUSSION with Will Smith (and the documentary that was the basis for it: League of Denial) raised the level of understanding as to how people can suffer from a blow to the head and have the injury only show up in the most nuanced ways. In the movie, which showed concussion injuries to football players, they could not even diagnose it until there was an autopsy which showed CTE (Chronic Traumatic Encephalopathy), which is an everyday term that means if you get hit in the head, your brain gets traumatized (just as it did in the example I gave above in an auto accident) and it causes “Encephalopathy”, which is a disease, damage and malfunction to your brain. I am hopeful that since this film came out and so much attention was focused on football players who had concussions, people sitting on juries will better understand the problem of showing brain damage in a courtroom, when you do not have evidence of a massive bleed or someone sitting in a wheel chair who is unable to function.
There are sophisticated tests (other than CT scans and MRI’s) that can demonstrate a brain injury and most of them are expensive and will not be paid for by insurance carriers. So the challenge we have as lawyers is to find a way to show the truth about our client’s brain injury. The defense, in my long experience, will always find a paid expert to say that the client is exaggerating, much in the same way they found experts to opine that smoking did not cause cancer, that seat belts would not save lives and that there is no connection to brain injuries in football players who go helmet to helmet with other players on a regular basis. I am hopeful that with all the publicity brain injuries have received, the stigma of exaggeration will disappear and victims will be able to receive their fair and just compensation. Our law firm has had and continues to have numerous brain injury cases and we will continue to fight for the rights of these victims.
*Ronald Karp is managing partner of the law firm of Karp, Wigodsky, Norwind & Gold, P.A. He has been practicing law for 44 years and is regularly selected by his peers for Best Lawyers in America, which lists the top 1% of lawyers in the United States and to the Top 100 lawyer lists published by the Washington Post in the Super Lawyers section of their Sunday magazine. This list is selected by the voting of other lawyers and a blue ribbon panel of experts. There are over 100,000 lawyers in the Washington-Maryland-Virginia metropolitan area.