Brain Injury Series Part 3: The Challenges That Plaintiff’s Counsel Faces

This is the third part of a series of blogs on Winning Strategies for Handling a Mild to Severe Brain Injury Case. The first part of the series explained the anatomy of the brain, an understanding of which is essential in order to appreciate what happens to the brain after a traumatic brain injury.  The second part explained the ways a brain can become injured.  This part considers the challenges that Plaintiff’s counsel encounters when representing an individual who has suffered a traumatic brain injury.

Difficulties a Plaintiff’s Counsel Faces in Proving a Traumatic Brain Injury

There are a number of difficulties Plaintiff’s counsel faces in trying to prove the existence and severity of a traumatic brain injury.  One of those difficulties is that most brain injuries, unlike other injuries such as a broken arm or an amputated leg, are invisible to the naked eye.  X-rays, CT scans and MRIs can detect fractures, hemorrhages, swelling, and certain kinds of tissue damage, but they cannot always detect injury to a person’s brain. This is because traumatic brain injury, especially in its milder forms, often involves subtle traumas to the brain that cause chemical and physical changes to brain tissues. These changes often cannot be found with standard imaging procedures.

Another difficulty for any Plaintiff’s lawyer in a brain injury case is establishing that the traumatic event caused ongoing organic damage which affects the person’s ability to function in the real world. This is often difficult to prove because many brain injured individuals appear “smart.”  They are articulate and can perform many of the tasks they did before they were injured.  It is difficult for most of us to understand how a person may retain, for example, a high IQ after suffering a traumatic brain injury and still perform very poorly on certain neuropsychological tests and in real life.  It is hard for us to understand that deficits do not occur in all areas of the brain and that indeed, many parts of the brain remain intact while the person’s ability to function in many aspects of his or her life is significantly reduced.

A third difficulty is that in the months after suffering a traumatic brain injury, many individuals are in denial.  They insist they are fine and have told all their treating health professionals that they are fine.  They may tell their treating health professionals the only reason they are seeing him or her is that of ongoing pain resulting from a back injury suffered in the collision.

For these reasons, proving the existence of a traumatic brain injury, and the consequences of that injury to your client can be difficult.  However, as Plaintiff’s counsel, that is your job.

The onus is on Plaintiff’s counsel to ensure that a client who has suffered a traumatic brain injury and their family members discuss all of the symptoms with their health professionals at each visit.  There are two important reasons for this; first, it ensures that the recorded information is accurate and complete.  Defence counsel will always request the health records of a Plaintiff, and if the symptoms are not recorded, defence counsel will argue that the reason is that they do not exist.

The second reason it is important for a Plaintiff to tell a health professional all of their symptoms is that it will make for more detailed and more comprehensive reports.  An injured person will not be fairly compensated if reports of health professionals do not discuss all of the injured person’s ongoing symptoms.

It is, therefore, incumbent upon Plaintiff’s counsel to ensure that the brain injured client and their family members are not only aware of the symptoms of traumatic brain injury, but in addition, that they tell all the treating health professionals all of their symptoms on every visit.   We provide our brain injured clients with a Traumatic Brain Injury Symptom Checklist, so they may recognize and articulate their ongoing problems.

Typical Defences that are Raised

Plaintiff’s counsel must anticipate the standard defences raised in a brain injury case. The objective of defence counsel in a traumatic brain injury case is to try to convince the judge or jury that no organic injury to the brain has occurred. The standard defences that are almost always raised are the following:

  1. Any impairment flows from pre-morbid, long standing emotional problems.
  2. Any impairment is the result of some other event which occurred after the collision.
  3. If there was an injury, it was trivial, and any ongoing impairment is the result of an emotional reaction, which can be easily treated by psycho-therapy.
  4. The plaintiff is malingering or exaggerating his or her claim for monetary gain.

How to Deal with these Challenges

One of the best ways to deal with these challenges is to have your client assessed by a neuropsychologist.   A neuropsychologist is usually the most important expert Plaintiff’s counsel will rely on.  In our next blog, we will discuss the reasons for this, as well as how a lawyer works with a neuropsychologist and other health professionals to overcome the challenges inherent in representing an individual who has suffered a traumatic brain injury.

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