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How living with brain injury is different than defense junk science suggests

August 19, 2011 by Steven M. Gursten

Michigan brain injury attorney discusses a real example of living with a concussion, and how diffuse axonal injury can harm a car accident victim

As a traumatic brain injury attorney for almost 20 years, and one who speaks to other lawyers both in Michigan and nationally on the subject of representing people with brain injuries, it never fails to anger me how defense insurance lawyers and insurance companies knowingly/fraudulently defend car accident TBI/brain injury cases by making junk science arguments.

It’s tragic that so many brain injured victims are turned away or receive less justice than they deserve because courts allow insurance company lawyers to make junk science arguments. It seems Daubert and tests of scientific admissibility only apply to people who are putting on the proof, and not to the insurance companies who knowingly hire crooked defense IME doctors to deny people with brain injuries justice.

Here’s an interesting article I just read from CNN: be nice to your brain. It’s terrible, of course, but it’s also a bit ironic that the health reporter from CNN suffered a concussion. Her story and personal observations are worth reading. They show that real life, and especially the days and weeks that follow a brain injury, are very different from what the insurance lawyers say life must be like if these brain injuries are “real.”

As the article shows, the reason so many traumatic brain injury attorneys and TBI victims have trouble showing a jury how real and devastating a TBI is, is because so many things that happen to people seem counter-intuitive. For example, people may look fine, or act seemingly normal. But all the while there can be a cascading effect of chemical and other changes in the brain as the injury continues to evolve.

The other confounding thing about brain injury cases, especially that occur after car accidents, is that people who do suffer a brain injury are terrible historians as to the effects of brain injury, the mechanism of how the brain injury occurred, and the events thereafter. Defense lawyers have a field day with these histories. But anyone familiar with brain injury will tell you that these defenses, bordering on unethical, stem from the injury themselves. In so many of the car accident TBI cases I have, the defense and insurance company always makes a big deal that the person seemed ok or that it may have taken weeks before the TBI was diagnosed, or that the person seemed just dazed at the scene of the auto accident.

Science of a brain injury: Diffuse axonal injury is a process, not an event

The key for lawyers to understand about brain injuries is that it is an evolving process, not an event. A fractured bone is an event. It happens, and it is there. But a brain injury is not like a fractured bone. One of the most pervasive types of brain injury following even a minor trauma is damage to the nerve cell’s axon through shearing. This is referred to as diffuse axonal injury, and often occurs from traumatic brain injury car accidents.

This damage to your brain then causes a series of reactions that eventually lead to swelling of the axon and disconnection from the cell body of the neuron.

In addition, the part of the neuron that communicates with other neurons degenerates and releases toxic levels of chemical messengers called neurotransmitters into the synapse or space between neurons, damaging neighboring neurons through a secondary neuroexcitatory cascade.

Therefore, neurons that were unharmed from the primary trauma suffer damage from this secondary insult. Many of these cells cannot survive the toxicity of the chemical onslaught and initiate programmed cell death, or apoptosis.

The process of apoptosis usually takes place within the first 24 to 48 hours after the initial injury, but can be prolonged and can occur for days afterward. The National Institute of Neurological Disorders and Stroke has very good information on why the symptoms of brain injury can be so delayed.

I suspect in the next few years there will be brain imaging studies showing this process of ongoing injury occurring in people’s brains may actually be happening for months after a brain injury, depending on the person, his or her genetic predisposition, cognitive reserve, and other factors. These delayed onset of TBI symptoms become post-traumatic Parkinson’s or post-traumatic seizures, even months after a serious car accident.

Steven M. Gursten is a traumatic brain injury attorney and partner of Michigan Auto Law. He is a member of the American Association for Justice Traumatic Brian Injury Group and the Sarah Jane Brain Project. Steve received a trial verdict of $5.65 million for a TBI victim; the largest reported automobile negligence verdict in Michigan for the year.

Related information to protect yourself:

Symptoms of TBI

9 steps TBI victims must take following a car accident

The truth about delayed and missed traumatic brain injury diagnosis

Michigan Auto Law is the largest law firm exclusively handling car accident, truck accident and motorcycle accident cases throughout the entire state. We have offices in Farmington Hills, Detroit, Ann Arbor, Grand Rapids and Sterling Heights to better serve you. Call (248) 353-7575 for a free consultation with a traumatic brain injury attorney.

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