Brain Injury Litigation
Brain injury litigation gets complicated very quickly, and that’s simply because no two brain injuries are the same. Each brain injury lawsuit utilizes state-of-the-art technologies and requires extensive historical research into somewhat similar cases.
For those who find themselves or their loved ones in the middle of a brain injury litigation process, it can be almost nearly impossible to figure out where to begin. This is partly because many brain injuries persist for long periods of time and it can be hard to objectify a brain injury that continually changes.
This article aims to help all of those who find themselves or their loved ones at the beginning of the brain injury litigation process by going over some of the finer details that everyone involved with brain injury litigation needs to know. Being prepared is crucial for all forms of litigation, and for litigation involving such a delicate matter as the well being of a person’s brain, and consequentially their livelihood, you can never be over prepared.
No matter how mild or severe the brain injury, the following are 9 things you need to know about brain injury litigation as it pertains to how an Indianapolis brain injury attorney will deal with these cases.
9 Things to Know about Brain Injury Litigation
1. IT IS AN ARDUOUS PROCESS
First and foremost, it is crucial to understand that all forms of brain injury litigation take a long time to handle, especially if it’s difficult to present any kind of objective evidence of a brain injury on an MRI or CT scan, such as in concussions. The reason why it’s so important to be able to objectify a client’s injuries is because insurance companies will automatically assume that a person is faking their injuries or psychological problems and label these problems as pre-existing to the specific time of the injury.
It may seem ridiculous that insurance companies won’t believe people who suffer from brain injuries, but it is almost a given that they will fight tooth and nail to keep their money away from a brain injury victim who reveals relatively clean scans. This is why it’s so important to hire an experienced brain injury litigation attorney who is used to the tactics of insurance companies.
Juries are much more sympathetic to brain injury victims than insurance companies. The best way to be able to prove the effects of a brain injury on an individual is to open up the claimant’s entire life history for examination. This can include medical records throughout childhood, school records, psychiatric records and literally anything insurance companies can get their hands on.
The most important thing to keep in mind when it comes to the arduous process of brain injury litigation is that you don’t have to go about it alone, and hiring an expert makes your life much easier as things tumultuously build up.
2. NEW TECHNOLOGIVES HELP TO ‘OBJECTIFY’ BRAIN INJURIES
About 20 years ago, brain injury litigation was much different, and that was primarily because it was commonly thought that a person needed to lose consciousness or show significant changes on an MRI or CT scan to prove they suffered a permanent brain injury. Today these facets are no longer true and we now know that the brain is much more vulnerable to injury. Being able to prove a significant brain injury occurred within a claimant is the quickest and best way to settling/winning a brain injury litigation.
What’s so incredible is that there now are several new technologies that have come out in the past 10 years or so that are much more sensitive than MRIs or CT scans in terms of objectively proving brain injuries. These technologies include the following:
- MRI/DTI: DTI refers to a special software called ‘Diffusion Tensor Imaging’, and this test is done through a normal MRI machine to more thoroughly detect any damages that may have occurred within the white matter tracts of a person’s brain. White matter is in the extremely deep interior of the brain and connects different lobes of the brain’s gray matter, kind of like telegraph wires. When white matter is injured a brain’s ability to properly communicate amongst its lobes is diminished, which externally results in several kinds of impairment or symptoms. What a DTI specifically does is track the flow of water molecules within a brain’s white matter fibers.
- MRI/SWI: SWI, or ‘Susceptibility Weighted Imaging’, is another special software that can be used through a common MRI machine that allows radiologists to monitor tiny bleeds in a person’s brain, which are known as micro hemorrhages. Micro hemorrhages occur when the brain is traumatically shaken, and MRIs can usually not detect these issues. The way an SWI detects micro hemorrhages is by visualizing left over iron molecules from tiny brain bleeds after a general traumatic brain injury. After a major car accident, there can potentially be hundreds of micro hemorrhages in a person’s brain that only SWIs can detect.
- MRI/MRS: ‘Spectroscopy’ is used to monitor the balance and overall ratio of specific molecules within a person’s brain matter. If there is any kind of imbalance that was ultimately created through a form or trauma the MRS will comprehend it fully. This is a very new form of technology that is not yet widely used at hospitals around the country, but is quickly gaining acceptance in the neuropsychology and radiology fields.
3. RECOVERY IS OFTEN SLOW
The rehabilitation process is always different for every traumatic brain injury – sometimes it can be relatively straightforward while other times it’s complicated. No matter the severity of the brain injury, there are several aspects of the recovery process everyone must know, including the following:
- Mild traumatic brain injuries tend to be full recovered from within a six-week timeframe, and usually results in benign MRI or CT scans. The symptoms of these brain injuries vary, and a person with pre-existing brain, psychological or learning difficulties may have more difficulty in terms of recovery time. Many times, people without pre-existing conditions fail to fully recover from mild traumatic brain injuries as well.
- Many people who suffer from a TBI reflect a ‘lack of self-awareness’, which means that they don’t recognize the changes or effects the injury has taken on them and relatively think they are fine, even when from an outside perspective there are visible symptoms. When someone is experiencing a lack of self-awareness, it becomes very important for the friends and family members of the victim to express their concerns and overall observations to medical professionals and not rely upon the victim’s self reports.
- Getting back into the workforce and the overall real world can sometimes be difficult for TBI victims, and it’s important to understand that an intense and lengthy rehabilitation process is typically best. The general window for effective rehabilitation from a TBI is only six months after the injury, so it’s imperative that the rehabilitation occurs quickly and efficiently. The following are some rehabilitation practices that have been proven to work really well with TBI victims:
- Conversing with people
- Exercising, if authorized by a medical professional, in order to promote neurogeneration in the brain.
- Coping skills are important in helping people understand the ebbs and flows of the rehabilitation process for injuries that can last for lengthy periods.
4. OBTAIN SOCIAL SECURITY DISABILITY, IF NEEDED
When someone suffers from a severe TBI that shows objective brain injury the family of the victim should apply for social security disability coverage as soon as possible.
If the TBI victim ends up recovering significantly and not needing the assistance, the family can easily have it stopped. The application process can take a long time, thus it’s important for the family of a victim to put in their application quickly to avoid any kind of long periods of time without medical funding.
5. FRONTAL LOBE INJURIES ARE SOMETIMES SUBTLE, BUT STILL OVERWHELMING
The frontal lobe is the most sophisticated part of the brain and also the most prone to injury, and often neurologists can’t decipher whether or not a frontal lobe injury has occurred because they are sometimes very subtle. Because the frontal lobe is such an important part of the brain, many doctors will deem a person fine if they are walking and talking normally, although a person can experience a multitude of side effects, including the following:
- Some people become ‘disinhibited’, which means that they will say things that they are thinking even if it is inappropriate. Disinhibition often times leads to social awkwardness, violence and even addiction problems.
- Parts of a person’s brain that guides their brainpower can become somewhat diminished with frontal lobe injuries, and this leads to their complex social interactions and decision making skills being altered. This can lead to many issues with a person’s career and life in general.
- Frontal lobe injuries are common with people who are in psychiatric wards, homeless shelters and prisons.
- Anxiety, depression, divorce and addiction are many times common with victims of frontal lobe injuries.
6. LOSS OF COGNITIVE RESERVE
Cognitive reserve, in basic terms, is the amount of brain power a person has as they go through life, which protects them from serious neurological conditions like dementia and Alzheimer’s disease. As you lose brain cells you lose some of your cognitive reserve, and traumatic brain injuries adversely affect a person’s cognitive reserve and therefore will make a person more likely to suffer from Alzheimer’s or dementia at a much earlier age than usual.
Many attorneys don’t fully understand cognitive reserve, so it’s crucial to hire an attorney who can explain this concept in detail to insurance companies pertaining to a specific TBI victim.
7. INSURANCE COMPANY TACTICS
Insurance companies have a lot of strange tactics when it comes to brain injury litigation, and everyone needs to be aware of these tactics in order to be more prepared for when they do try to frame a situation out of a victim’s favor.
The insurance company will always contact a victim during their recovery and they’ll always record this conversation. When a person would file a brain injury claim later, they can use the previously recorded conversation as proof that the person seemed fine before the claim, even though people can speak normally after suffering a TBI.
The insurance company has the right to go through your trash, and they would hypothetically be looking for illegal drug use evidence, medications and really anything that can harm your case. It’s important to be aware of this because you never know when they’ll resort to almost anything to try and foil a case.
If you were in a car accident, it’s very important to obtain photographs of the vehicle, and you should also make certain that the specific vehicle isn’t sold or crushed. What insurance companies will want to do is take the vehicle from an impoundment lot and crush it as quickly as possible, even if the car experienced a mechanical failure of some kind.
You need to get as many before/after witnesses as you can in order to have people testify to the changes that have taken over time, with the time of the injury being the focal point. These witnesses are often crucial in jury cases and are more effective than hired experts.
Also, it’s important to keep in mind that insurance companies will examine the social media engagement of you and your entire family, so it’s important to always be truthful both online and in person.
8. RETURN TO WORK
Even if it’s too much to handle, it’s really the effort that counts the most with juries. People who don’t find work while awaiting trial tend to get punished by juries, but of course if the injury is severe that’s a different scenario. Collaborating with rehab experts and worker’s comp professionals is a great option during this difficult process.
9. GET STARTED AS SOON AS POSSIBLE!
Evidence of a brain injury from an accident can sometimes disappear quickly, and so it’s important for an individual and/or their family to seek legal counsel as soon as they can after a TBI occurs if they think the circumstances require litigation.
There are many time sensitive aspects to getting enough evidence for a brain injury litigation including video surveillance, PIP coverage, insurance coverage and medical issues.