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Tips for Traumatic Brain Injury Lawyers: Part 3

June 9, 2009 by Steven M. Gursten

TBI Basics Every Car Accident Attorney Must Know

This is my third TBI blog for personal injury lawyers, with information from three traumatic brain injury seminars I will be speaking at this summer. I realize a lot of this is very technical, but what I’m trying to do is create a “cheat sheet” of the key medical literature that any lawyer handling a traumatic brain injury case must have.

This following is not meant to be a substitute for the tremendous amount of time and sweat equity that it takes to become proficient in helping victims of TBI in the courtroom. I encourage every member of the Michigan Association for Justice to join the Traumatic Brain Injury Group, and to attend the group’s many excellent seminars throughout the country.

Handling a Traumatic Brain Injury Case

The basic medicine underlying brain injury that I will discuss can take a long time to learn. Often, the medicine is counter intuitive to what we suppose. For example, that a normal MRI or CT scan of the brain may actually support a brain injury diagnosis by ruling out other alternative explanations for symptoms; or understanding that brain injury — unlike any other type of physical injury — is a process that evolves over hours and sometimes even days following the initial trauma.

This helps explain why more than 80 percent of brain injuries are not diagnosed in emergency rooms and why many routine discharge instructions from emergency rooms specifically state that the ER is not meant to diagnose or rule out brain injury, warning patients to be wary for symptoms such as headaches and dizziness, and to see a doctor immediately if these symptoms begin or worsen.

Traumatic brain injury cases take a serious time commitment. It takes hard work to become a competent brain injury lawyer. It requires constant reading, learning, seminar attendance, and an understanding that you’re taking on a case that will be defended more vigorously by a defense lawyer and auto insurance company than one with more “obvious” injuries.

Additionally, clients with brain injuries can be more challenging, but it’s often not their fault. Lawyers must have patience and compassion when helping people who suffer from severe depression, or a frontal lobe brain injury that can cause disinhibition, poor judgment, poor decision-making and even violence. I’ve always thought the most insipid defense tactic defense lawyers use is attacking the victim of brain injury for, of all things, exhibiting the classic symptoms of brain injury. It takes a good traumatic brain injury lawyer to expose this defense.

The Basics of Brain Injury, Neurophysiology and Neuropathology of Brain Injury

Most Classical Definitions of Mild Concussion (E.g., ICD 9 CM, 1992) indicates that a mild concussion is characterized by alterations in consciousness or a loss of consciousness of less than an hour.

The American Congress of Rehabilitation Medicine defines a mild traumatic brain injury (MTBI) as traumatically induced physiological disruption of brain function, as manifested by any period of loss of consciousness, loss of memory for events immediately before or after the accident, alteration in mental state at the time of the accident (i.e. dazed, disoriented or confused) and/or focal neurological signs that may or may not be transient. The definition also specifies that loss of consciousness should not exceed 30 minutes and that the Glasgow Coma Scale (GCS) after 30 minutes should be in the 13-15 range and that post traumatic amnesia should not be greater than 24 hours. (Journal of Head Trauma Rehabilitation, 1993, 86-87).

The Centers for Disease Control and Prevention defines mild traumatic brain injury or concussion as “… a complex pathophysiological process affecting the brain, induced by traumatic biomechanical forces secondary to direct or indirect forces to the head. MTBI is caused by a jolt to the head or body that disrupts the function of the brain. This disturbance of brain function is typically associated with normal structural neuroimaging findings (CT scan, MRI). MTBI results in a constellation of physical, cognitive, emotional and/or sleep-related symptoms and may or may not involve a loss of consciousness. Duration of symptoms is highly variable and may last from several minutes to days, weeks, months or longer in some cases.”

Effects of Mild Traumatic Brain Injury

In car accident cases, brain injury rarely occurs without other physical injuries and emotional reactions. Often neck pain, back pain and head pain symptoms, as well as sleep disturbance and anxiety occur. It’s important to consider the contributing and overlapping effects, even at a brain function level, that such injuries may have on a patient’s functioning.

Much of the initial effects of MTBI are of a metabolic nature. Acute post-traumatic changes occurring in both intracellular and extracellular environments are largely the result of excitatory amino acid-induced ionic shifts. This process is accompanied by a decrease in cerebral blood flow, which is thought to cause diffuse cerebral neurovascular constriction. Subsequent conflicts between energy demand (from the cascade of excitatory substances) and decrease in energy supply is suggested to create an environment of cellular vulnerability that is susceptible to a number of factors. The altered metabolic state likely typically persists for a period of two weeks or longer.

Additional and Related Potential Mechanisms – Brain Damage in MTBI/Concussion

Diffuse axonal injury
o Mechanical stretching of axons may result in membrane disruption and depolarization.
o Intra-axonal cytoskeletal abnormalities lead to accumulation of organelles at the site of axonal damage due to continued axoplasmic transport that may result in axotomy with subsequent Wallerian degeneration.

Transneuronal degeneration
o Delayed cell death and persistent calcium accumulation
o Elevated intracellular Ca2+ may trigger cell death by a variety of mechanisms including over-activation of nitric oxide synthase, which may lead to free radical overproduction and activation of apoptotic genetic signals.

Neurotransmitter alterations
o Long-term deficits in memory and cognition in a setting of minimal anatomic change are often seen after concussion, which may result from dysfunctional excitatory neurotransmission.

Potential Persisting Functional Effects of MTBI

Sensory-motor deficits (particularly sense of smell – olfaction)
* Cognitive deficits
* Emotional/personality/behavioral changes
* Medical system changes (i.e. neuro-endrocrine metabolic changes, dysautonomia)

Other common post traumatic injuries that may affect brain function include:

* Pain disorders: May result from physical injuries and may be aggravated because of decreased pain threshold related to sleep disturbance and may increase in intensity in association with emotional symptoms. Research has shown that Pain Distracts the Brain (Bingel, Rose, Glascher & Buchel, 2007)

* Sleep disorders: May be related to TBI, pain disorder, depression or anxiety disorder. Sleep problems are common after TBI, with a prevalence estimated at 30 to 70 percent (Rao, et al, 2008). Chronic sleep disorders may have adverse effects on normal cerebral functions and may be associated with memory impairment, daytime drowsiness, etc.

* Depressive disorders: May be related to TBI, such as chronic pain disorder, chronic sleep disorder, reactions to loss or chronic anxiety. Affective Disorders may have adverse effects on normal cerebral functions, such as psychomotor retardation and reductions in frontal lobe functions.

* Anxiety disorders: The literature on chronic anxiety disorders suggests they may be associated with both chemical and structural alterations in brain mechanisms involved in the mediation of anxiety, particularly among subcortical limbic structures (Vasterling & Brewin, 2005).

Steve Gursten is a member of the American Association for Justice Traumatic Brian Injury Group and lectures on TBI throughout the country. He was recently invited to become the first Michigan traumatic brain injury lawyer to serve on the legal committee for the Sarah Jane Brain Project, a foundation that aims to create a model system for all children suffering from pediatric acquired brain injuries. In 2008, Steve received a trial verdict of $5.65 million for a TBI victim; the largest reported auto negligence verdict in Michigan for the year according to Michigan Lawyers Weekly.

— Photo courtesy of Creative Commons, by CaptPiper

Related information:

Michigan Traumatic Brain Injury Law

TBI Cases in Federal Court

Mild TBI Defense

Michigan Auto Law exclusively handles car accident, truck accident and motorcycle accident cases throughout the entire state of Michigan. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights. For more information, please refer to our law firm quick facts.

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3 Replies to “Tips for Traumatic Brain Injury Lawyers: Part 3”

  1. this post was so helpful. Although I’m not in Michigan, (illinois) just understanding the process from your eyes when representing a client was a well written glimpse into what it’s like. My brother on may 26th while turning onto a busy road in his companies truck, was hit by a semi truck..he suffered a TBI- fractured skull, broken orbital bones, he had a blood clot between his skull and outer membrane on the left side, he bruised his brain stem, and the part of the brain affected was the temporal and frontal lobe. He wasn’t wearing his seat belt.
    Today, June 19th, he is at my parents house already. Walking. talking. eating (although soft food because his bones around the eyes are painful. He lacerated the eye muscle and may need sinus surgery, but he didn’t break his nose. He did hit both sides of his head-he was found in the passenger side of the truck the truck laying on it’s passenger side..
    He smiles. He hugs. He doesn’t remember the accident, but like this post states, there are still many things that are affecting him, one being the sleep. Did you know the brain stem controls the sleep and wake cycles? There is frustration. Impatience, he says what he thinks without a filter, things are still amplified but he is here. Thank you for this article, it was very usual. Keep up the writing, you explain it perfectly!
    Mom to three boys
    sister to two sisters and two brothers.
    Thankfully all still here.

  2. I have a client that was in an automobile accident (case has settled) and suffered a TBI, approximatley one year later she was involved in a second car accident suffering a TBI. Can you direct me to any literature that supports the fact that after a TBI a person is more susceptible to a subsequent injury when suffering a second TBI.

    Thank you.

  3. Thanks, so much for your comment. There is an enormous amount of medical literature on the subject, which is also commonly known as reserve brain capacity, where an already injured brain becomes far more susceptible to subsequent injury, and where the effects of a second or further cumulative injury will be far worse than there would otherwise be if that brain had never suffered injury. However, the key is always working with your treating doctors, so the most important literature is whatever is on the bookshelf of your neurologist, neuropsychologist, etc. that he or she will be comfortable referring to and agreeing is authoritative.

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