CLOSED HEAD INJURIES: THE SILENT EPIDEMIC (1995 Paper)
Douglas B. Abrams
The long term effects from closed head injuries have been extensively researched medically.
As this condition comes to be better understood at the level of the clinician, problems arising from lack of a proper diagnosis will decrease. At present, however, many myths remain concerning the nature and duration of symptoms arising from closed head injuries. The failure to properly recognize the condition can generate tremendous hardship upon the injured person and his or her family.
This paper will discuss: (1) common symptoms of closed head injuries; (2) available methods of treatment; and (3) legal issues associated with presentation of this type of case to a jury. Attached as part of the appendix to this paper are a number of sample questions for treating doctors, questions for adverse doctors, and several medical journal articles on the subject of closed head injury. A more complete survey of the medical literature on this subject is available from either the NCATL or the author upon request.
II. MEDICAL CONSIDERATIONS CONCERNING CLOSED HEAD INJURIES
A. RECOGNITION OF CLOSED HEAD INJURIES AND THEIR LONG TERM SYMPTOMS
Serious and sometimes permanent deficits can occur in persons who receive head injuries where a person has not been rendered unconscious by the head injury. See Binder, PERSISTING SYMPTOMS AFTER MILD HEAD INJURY: A REVIEW OF POST CONCUSSIVE SYNDROME, Journal of Clinical and Experimental Neuropsychology pages 323346 (1986)(A copy of this Article is included in the Appendix to this paper); Denker, THE POST CONCUSSION SYNDROME: PROGNOSIS AND EVALUATION OF THE ORGANIC FACTORS, N.Y. State Journal of Medicine pages 379384 (1943)(A copy of this Article is included in the Appendix to this paper). The concept of "disruptions of consciousness" or " disturbances of consciousness" has begun to emerge as a factor to consider in evaluating the nature of a person's symptoms following head injury. See Boll, MILD HEAD INJURY, Psychiatric Developments pages 263275 (1983)(A copy of this Article is included in the Appendix to this paper).
Accordingly, the practitioner should carefully question a victim of a head injury and his or her family to discover whether any of the following symptoms have emerged following a head injury:
(5) Blurred Vision;
(6) Insomnia or other sleep disturbances;
(7) Easy Fatigability;
(8) Difficulty Concentrating;
(9) Deficits in Short term Memory.
See Binder, PERSISTING SYMPTOMS AFTER MILD HEAD INJURY: A REVIEW OF POST CONCUSSIVE SYNDROME, Journal of Clinical and Experimental Neuropsychology pages 323346 (1986). Frequently, the victim of a head injury will greatly UNDERESTIMATE the impact of his or her head injury. Similarly, only upon close questioning will some families admit that the behavior of the head injury victim has deteriorated following the injury. As a result, the history received by the initial treating physician often is incomplete. Review of emergency room records and initial nurses' notes may be of great assistance in establishing whether the injured person sustained disturbances of consciousness or alterations of consciousness following a head injury. Often the emergency room records will refer solely to "Loss of Consciousness" (frequently abbreviated as "LOC"). Major medical centers still do not uniformly perform a test entitled the Glasgow Coma Scale, which measures the level of consciousness of a patient. See Benton, BEHAVIORAL CONSEQUENCES OF CLOSED HEAD INJURY (A copy of this article is included in the Appendix to this paper). This test is seldom performed at less sophisticated hospitals. Nevertheless, nurses' notes and doctors' progress notes should be carefully checked for references to disturbances of consciousness. Similarly, the existence of Post Traumatic seizures may play a significant role in diagnosing the severity of closed head injuries. The existence of seizure activity is an important positive sign, but the ABSENCE OF SEIZURE ACTIVITY IS NEUTRAL FOR WHETHER SERIOUS BRAIN INJURY HAS OCCURRED. See Benton, BEHAVIORAL CONSEQUENCES OF CLOSED HEAD INJURY (A copy of this article is included in the Appendix to this paper). The same principle applies to abnormal findings on post injury CAT scans or EEGs. The presence of abnormality has a correlation with serious brain injury, but the absence of any abnormality on CAT scan or EEG neither confirms not denies the severity of a head injury. See Binder, PERSISTING SYMPTOMS AFTER MILD HEAD INJURY: A REVIEW OF POST CONCUSSIVE SYNDROME, Journal of Clinical and Experimental Neuropsychology pages 323346 (1986)(A copy of this Article is included in the Appendix to this paper). Magnetic Resonance Imaging (MRIs) will offer some improvement in this situation; however, the damage done in the cases of diffuse head injury are most often microscopic. Therefore, even MRIs will not disclose the existence of virtually all cases of structural damage in these types of cases. An additional consideration should be whether the victim of head injury sustained amnesia for the events surrounding the injury. Health care practitioners sometimes refer to this loss of memory as Post Traumatic Amnesia. In the medical literature this term is sometimes abbreviated PTA. Post Traumatic amnesia may include amnesia for a period before the event and after the event retrograde and post grad amnesia, respectively. The significance of Post Traumatic amnesia rests in the fact that the brain's normal functioning has been disturbed sufficiently to interfere with retention of normal memories. Post Traumatic amnesia is also not an independent predictor or whether a person has sustained permanent brain injury from a closed head injury. Therefore, the importance of Post Traumatic amnesia should not be overemphasized as disproving the evidence of diffuse brain damage. On the other hand, the presence of this condition does disclose disruptions of normal brain functioning.
Certain neuropsychological tests are available which provide important information for determining whether brain damage has occurred from a head injury. The accuracy of these tests depends in large part upon the skill of the person giving and interpreting these tests. Standard intelligence tests are not sufficiently specialized to be provide by themselves conclusive proof of the absence of brain damage. See Benton, BEHAVIORAL CONSEQUENCES OF CLOSED HEAD INJURY (A copy of this article is included in the Appendix to this paper). These intelligence tests most frequently include the Wechsler Adult Intelligence Test Revised (WAISR). The major medical centers in North Carolina have begun establishing head trauma centers which provide testing and treatment for the victims of head injury. Furthermore, across the United States there are a number of nationally recognized head trauma centers. Perhaps the best studied series of tests is the HalsteadReitan battery. This test series is perhaps the longest studied battery, and the information obtained is helpful for diagnosing permanent injury from head trauma. A number of neuropsychologists in North Carolina have trained in the administration of these test series.
B. THE MECHANISM OF DIFFUSE HEAD INJURY
Most frequently, the damage done to the brain tissue in cases of mild to moderate closed head injuries occurs at the microscopic level. Medical research has been conducted at least for the past twenty years to determine the mechanics of this type of head injury. See Binder, PERSISTING SYMPTOMS AFTER MILD HEAD INJURY: A REVIEW OF POST CONCUSSIVE SYNDROME, Journal of Clinical and Experimental Neuropsychology pages 323346 (1986)(A copy of this Article is included in the Appendix to this paper). In this type of diffuse brain injury, the impact to the head causes the brain to move within the skull. As collisions occur within the interior of the skull the neurons in the brain may be damaged, sometimes permanently. Strains occur to the axons and neurons in the brain, which have a fiber like consistency. See Binder, PERSISTING SYMPTOMS AFTER MILD HEAD INJURY: A REVIEW OF POST CONCUSSIVE SYNDROME, Journal of Clinical and Experimental Neuropsychology pages 323346 (1986)(A copy of this Article is included in the Appendix to this paper); See Also Davidoff, NEUROBEHAVIORAL SEQUELAE OF MINOR HEAD INJURY: A CONSIDERATION OF POSTCONCUSSIVE SYNDROME VERSUS Post Traumatic STRESS DISORDER, Cognitive Rehabilitation Pages 813 (1988)(A copy of this Article is included in the Appendix to this paper). If the victim's head has been caused to rotate, the rotational effect will generally increase the damage done by the impact. See Binder, PERSISTING SYMPTOMS AFTER MILD HEAD INJURY: A REVIEW OF POST CONCUSSIVE SYNDROME, Journal of Clinical and Experimental Neuropsychology pages 323346 (1986)(A copy of this Article is included in the Appendix to this paper); See Also Davidoff, NEUROBEHAVIORAL SEQUELAE OF MINOR HEAD INJURY: A CONSIDERATION OF POSTCONCUSSIVE SYNDROME VERSUS Post Traumatic STRESS DISORDER, Cognitive Rehabilitation Pages 813 (1988)(A copy of this Article is included in the Appendix to this paper). Additional mechanisms for diffuse head injury include alterations in blood flow to the brain. The areas of damage in diffuse head injury will vary; and the deficits suffered by the victim will vary depending on a large number of variables. See Binder, PERSISTING SYMPTOMS AFTER MILD HEAD INJURY: A REVIEW OF POST CONCUSSIVE SYNDROME, Journal of Clinical and Experimental Neuropsychology pages 323346 (1986)(A copy of this Article is included in the Appendix to this paper). Documentation of the nature of the initial injury can be of assistance in demonstrating the severity of the impact to the brain.
The medical literature has not succeeded in separating the damage to the victim which is purely physical damages to brain tissue and the damages which are psychological in nature. The various tests will assist in diagnosing the existence of some physical damage; yet, the degree to which the victim's suffering is completely physical or substantially psychological is not well understood. For the victim, the distress and injuries sustained are real and can be disabling. Mathematical apportionment of this injury between physical and psychological causes is not required either medically or legally.
C. TREATMENT FOR DIFFUSE BRAIN INJURY
Within the last ten years tremendous strides have been made in improving the treatment for the victims of diffuse head injury. Presently, treatment centers are available to the victims of head injury whether they live west of Asheville or East of Wilmington. In Asheville, for example, rehabilitation hospitals are available for various types of rehabilitation. The Research Triangle area also has available treatment facilities. Unfortunately, some medical centers purport to treat the victims of diffuse head injury; but sometimes their methods are obsolete and their medical knowledge outmoded. Proper treatment of these victims greatly increases the likelihood of improvement in quality of life and independence of life. Therefore, treatment by talented health care practitioners is essential.
The treatment for these victims may include intensive treatment on an in patient basis. These patients will receive extensive retraining in order to improve mental functioning. Furthermore different types of cognitive rehabilitation may be used. Cognitive rehabilitation includes methods of teaching the victims of head injuries methods for compensating for damage to their brain. This rehabilitation includes both means for attempting to relearn certain types of mental activities, as well as methods for improving the means of dealing with head injury. Vocational rehabilitation and counselling is an addition form of rehabilitation often needed by the victims of head injury. This rehabilitation therapy may include both retraining for working at the same or similar occupation as before the injury and counselling for work at a different at often lower level of work. Regular neuropsychological examinations are often required as well. Recent research is indicating that some portion of the victims of head injury actually deteriorate over time. The reason for this deterioration is not well understood. For the more severely injured, different types of nursing care may be required. Generally, these various types of counselling and rehabilitation are included in a Life Care Plan for the head injury victim. The purpose of the LifeCare Plan is to maximize the head injury victim's ability to return to the level of functioning he or she was able to maintain before the injury.
III. PREPARATION AND PRESENTATION OF A MILD TO MODERATE HEAD INJURY CASE
A. RECOGNITION OF MILD TO MODERATE HEAD INJURY
Early recognition of the mild to moderate head injury is the most important element in properly protecting the safety rights of the victim. This task is made difficult because not infrequently the physicians treating the patient/client are not familiar with the mechanisms and symptoms of mild to moderate head injury. The client may have waited for a significant period of time before retaining the lawyer. The client/patient may also either not have been asked or omitted a large number of symptoms important in the diagnosis of mild to moderate head injury.
When any client reports a blow to the head, the lawyer should ask a list of questions which essentially includes the following lines:
1. Did you suffer any period of time of disorientation or unconsciousness?
A. When, for how long, who saw you then?
2. Have you had any problems with remembering things, such as phone numbers, recipes, items at work?
3. Have you had any problems with becoming irritable over minor things that didn't bother you before?
4. Have you had any problems with concentration or attention?
5. Have you had any problem with having normal sleep?
6. Have you had any problems with sudden and great mood swings?
7. Have you had any problems with being depressed?
8. Have you had any problems with headaches?
9. Have you had any problems with dizziness or blurred vision?
10. Have you had any problems with being fatigued?
11. Have you had any problems with personality changes since the injury?
12. Have you had any changes in your sexual behavior since the injury?
13. Have you had any problems with finding the right words since injury that you did not have before?
14. Have you had any problems with comprehending things either verbal or written that you did not have before the injury?
Family members, friends of the victim, work associates should be questioned at an early date to verify and quantify these changes. In the appropriate case, obtaining statements from these people may be helpful in assisting the physician in making the diagnosis. School records and work records before and after the injury NEED TO BE OBTAINED VERY EARLY. Schools often give students various standardized tests which may assist in the evaluation of a person's level of functioning and testing before an injury.
B. PRESERVING AND OBTAINING EVIDENCE FOR HEAD INJURY
The initial treating physicians, emergency medical practitioners, ambulance or rescue squad personnel are an important source of evidence. As discussed earlier, the nature and length of the disruption of normal consciousness is an important factor to present to the jury. The initial treating physician should be consulted at an early date. A conference with the physician is an appropriate time to present medical journal articles and on occasion witness statements. The impressions of the early health care practitioners may have an important impact upon the jury.
Subsequent treating physicians should also be consulted at an early date. If these physicians are still involved in the care of the patient/client, their cooperation in formulating a proper treatment plan will be an important factor in obtaining proper rehabilitation for the victim's injuries. This cooperation will be important in presenting the client's case to the jury. A number of anatomical drawings, charts and models are available. An early conference with the physician where medical articles and anatomical charts are available will often assist the lawyer understand better the nature of the client's medical condition.
Early retention of neurologists and/or neuropsychologists for a complete neuropsychological battery of the victim is important. The prior medical records, school records, and work records should be furnished. Occasionally witness statements or statements by family members may also be of assistance. From this material diagnosis and prognosis should be made. In cases of mild to moderate head injury with on going problems, a LifeCare Plan should be developed and put in the form of a chart or graph. This LifeCare Plan is an important element in the victim's recovery process. Whenever feasible, the plan should be instituted even before litigation has been resolved by settlement or verdict.
An economist should also be retained at an early date to assist in the calculation of: (1) the present cost of the LifeCare Plan and (2)lost wages or lost earning capacity from the head injury. The cost of LifeCare Plans may run from $75,000.00 to over $2,000,000.00, depending on the nature of treatment required. The head injury victim is entitled to medical treatment which will reduce the effect of the injury upon his or her life. Effective presentation of the future costs of such treatment assists the jury in appreciating the need for this therapy. An overall chart summarizing the present cost for future treatment may be helpful. With regard to lost earnings and loss of earning capacity, mild to moderate head injury frequently results in significant diminishment of income. However, with this type of injury, the client may be able to maintain some level of work, but the level of income may be much lower than before the injury. The economist can be used to develop the calculation of both loss of actual earnings and the diminishment of future earning capacity.
C. PRESENTING THE HEAD INJURY CASE FOR TRIAL
Presentation of a mild to moderate head injury presents many challenges. The client often appears normal and the jury's initial impression of the injury may underestimate the damage done to the client's life. The injuries also require a detailed understanding of the human brain. The difficulty of understanding this condition is demonstrated by the frequent misunderstandings health care practitioners still hold. The jurors often will hold similar misconceptions about the nature of head injury. One method of assisting the jury in understanding this condition is to approach the presentation by:
(1) calling emergency health care practitioners early in the case;
(2) calling treating physicians and/or family physicians;
(3) calling the expert neurologist and/or neuropsychologist;
(4) calling family members, friends and acquaintances and/or teachers (after the health care practitioners have helped the jury understand the mechanisms and nature of mild to moderate head injury.
(5) calling the victim of the head injury however, the victims of head injury often do not make willing witnesses. Many times their injuries make it difficult for them to provide testimony that the jury can comprehend.
In the appendix to this paper are included various formats of direct examination of neurologist/neuropsychologists as well as formats of cross examination of adverse experts.
The victims of mild to moderate head injury have often had difficulty in having their condition fully diagnosed and treated. This difficulty has further meant that their safety rights often were not fully protected. Thorough presentation of their claims will assist these victims in obtaining compensation for the sometimes devastating injuries which result from trauma to the head. Early recognition of this condition and prompt medical care by persons truly expert in this field will reduce the longterm damage done to the lives of these clients. As more information becomes known on the subject of mild to moderate head injury, hopefully these clients will no longer be part of the silent epidemic of mild to moderate head injury.