Steven E. North, Esq. and Laurence M. Deutsch, Esq.
Brain injury is one of the most serious kinds of injury a person can face. Whether from an incident related to birth or an acute mechanical force to the head, the damage can be extreme, rendering a person virtually functionless with or without cognition, or it can be “mild,” resulting in subtle but real impairment. The former is easier to litigate in a medical malpractice suit.
More challenging are the cases that leave the patient suffering from “mild” traumatic brain injury that is not apparent on superficial interaction with the person. The individual may seem relatively alert, friendly and responsive. Nevertheless, mild traumatic brain injury is often associated with impaired executive function, namely the ability to organize affairs and activities. While the cases of mild traumatic brain injury are more subtle, we have successfully litigated them through our knowledge of their diagnoses and effects, and by initiating the proper expert evaluation of the injuries.
Brain injury litigation might arise in a simple negligence claim involving an automobile accident, industrial accident, premises liability, or in a situation where a person suffers trauma to the brain with resulting injury. It might also be a medical malpractice claim when the brain injury is secondary to deficiencies in the management of a pregnancy or when there is a failure to appreciate, diagnose and treat a case of mild traumatic brain injury in a timely manner.
New research on brain injury has focused on the best methods to evaluate concussion, generally a mild traumatic brain injury (in fact, the words concussion and mild traumatic brain injury are increasingly used interchangeably). CT scans confer radiation on the patient and are often inadequate for detailed diagnoses; the more accurate MRI is expensive and not available at all institutions. This has spurred research into the efficacy of using serum biomarkers as a diagnostic and prognostic tool for mild traumatic brain injuries. Despite much promising research, none of the biomarkers being studied has yet been validated for this use.
There are, however, accepted norms for using existing diagnostic tools, and as suggested in the Medscape article “New Advances in Traumatic Brain Injury,” early recognition of mild traumatic brain injury is important if prompt treatment measures that can limit or forestall a permanent injury are to be instituted. The failure of a treating personnel to perform the necessary imaging study, ordinarily an MRI, and appreciate the subtle signs and symptoms may very well be medical malpractice and provide the basis for a meritorious case.
Often, the best way to establish the degree of brain injury is through sophisticated neuropsychological testing, which can best asses the impairment of brain function. Such testing is most effective when there is previous “base line” testing which can serve as a comparison marker. This is often not the case, especially when the brain trauma is the first a person is experiencing. But in either situation, attorneys experienced in handling brain injury cases can often develop strong proof of a brain injury, even for “mild” injuries, that can lead to significant financial recovery in a case.
Source: Medscape, January 25, 2017 – “New Advances in Traumatic Brain Injury”
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