Brain trauma and the myth of the resilient child: rebuffing conventional wisdom, new research shows that the youngest victims of brain injury are the least likely to recover. Use the data to win damages that will cover your client's long-term care.

Litigating brain-injury claims presents trial lawyers with significant challenges. The difficulties are compounded when a case involves a plaintiff injured in infancy; these claims are notorious for their complexity and uncertainty. Several misconceptions exist about the nature of brain injuries in young children--even among plaintiff experts who sometimes agree with the defense that if a plaintiff was an infant when the injury occurred, he or she stands a better chance of recovering at least some of the lost brain function.

Specialists have long held that infants and young children who have suffered a brain injury will eventually "grow out of it." This assertion is accepted without question by most lawyers.

Known in the medical profession as the Kennard principle, this approach holds that children, due to their brain's neuronal plasticity (the ability of their nerve cells to change or adapt), have a greater capacity for neuronal organization than adults do. (1) The younger the child at the time of injury, the principle holds, the better the outcome.

But this principle has recently been disproved. It is now accepted by pediatric neurologists--although still not widely known--that children, especially infants and preschoolers up to age seven, have a substantially higher vulnerability to neurological trauma than adults do. Neuronal reorganization does not occur to the extent that pediatric specialists previously believed, and some long-term effects appear only after the child has reached adulthood. (2)

For the litigator, this new research requires a different approach to quantifying damages.

The Kennard principle

The theory that historically provided the basis for assessing pediatric brain injuries was pioneered by neurologist Margaret Kennard in the 1930s. By studying brain lesions in infant monkeys, she determined that the effects of brain injury were less deleterious if the injury was sustained early in life, when the central nervous system is immature, and more severe if the injury occurred after the period of rapid brain growth ended. The younger the child, she reasoned, the greater the odds of recovery.

When Kennard published her findings in 1936, the principle immediately struck a chord among neurologists, even though her research was limited to two infant primates with substantial brain lesions. Rather than directly observing adult animals, she merely cited data on older monkeys previously collected by another researcher. (3)

Kennard spent the next decade developing her ideas. She discovered that her findings were not universal and that some symptoms could actually become manifest or worsen over time. In fact, her early research had failed to note substantial deficits that appeared after early lesions. For example, spasticity, decreased motor performance, and poor muscle control became apparent only as the primate matured. (4)

But the damage was done. Kennard's later research did not get the same attention as her earlier work. Because her initial findings reinforced the conventional wisdom on infant injury (that infants, on the whole, recover more fully and more quickly than adults), the principle has continued to go largely unchallenged as the underlying premise of many medical experts' reports.

Recent research

Increasingly, researchers are discovering evidence that children may be more vulnerable than adults to the consequences of neurological trauma. An infant's vulnerability depends on three important criteria: age at injury, severity of injury, and pre- and comorbid factors (prior or coexisting injuries or illnesses).

Researchers have discovered that greater disability follows injury in infants and young children, compared with school-age children or adolescents. (5) In fact, functional recovery has been discovered to be directly related to age--that is, the child's recovery of brain function is greater when the child's age at injury is greater. Now, the opposite of the Kennard principle is considered true: the younger the child, the greater the potential for disability.

Even if the injuries are identical, the resulting impairment will be greater the younger the child is. One researcher recently published findings showing that children who sustain injuries in their first five to six years exhibit less recovery of and greater impairment in intellectual skills several years later, compared with children who were injured between ages 6 and 16. The age at injury and the injury's severity dictate the rate and extent of recovery from deficits in language, memory, attention, and academic and decision-making skills. (6)

The shift away from the Kennard principle began in 1995, when a team of researchers began providing long-term outcome data for survivors of pediatric brain injury. (7) They studied children injured between the ages of one and seven, divided into two groups: those who had experienced a loss of consciousness greater than 24 hours, and those whose loss of consciousness lasted less than 24 hours but caused neurologic deficits.

Of the 55 children studied, 39 reached adulthood before the research was published. Of those, 59 percent had graduated from a school that consisted of a regular or modified curriculum, 21 percent had attended a program for physically impaired students, and 18 percent had attended a program for mentally handicapped students. As adults, 23 percent work full-time, 26 percent work in sheltered settings that accommodate their impairments, 36 percent live independently but are unable to work, and 15 percent require ongoing physical and psychological care and support. The study found that those who were injured before age four required the most significant curriculum modifications and were least likely to be employed as adults.

Another study, published last year, examined how one's age at the time of injury affects the recovery of intellectual function. (8) In all, 410 brain-injured patients participated. Participants were divided into two groups according to age at the time of the injury: those under seven, and those seven and older. The participants in the former group showed no recovery in visual or performance IQ. Those in the latter group displayed some recovery in both. These results refute the notion that those who suffer lesions at a younger age recover better than those injured when they are older.

Finally, pre- and comorbid factors have been found to play a significant role in functional outcome. (9) While neuronal plasticity offers some potential for reorganization, the behavioral demands of the environment and the effects of preexisting or concurrent injuries determine the patient's ability to take advantage of this potential and achieve functional, behavioral, and physical recovery.

As soon as possible after the injury, patients should undergo the most rigorous rehabilitation they can handle. Rehabilitation--including physical therapy, continuation of daily routine, re-establishing one's knowledge base, and preparing for the transition to home, school, and community--stimulates changes in the brain. If rehabilitation is delayed, there is less opportunity for reorganization and less chance of functional improvement.

As Kennard herself pointed out in her later, neglected work, deficits may emerge well after the injury occurs, levels of motor skills vary depending on age at time of injury, and lesions in certain parts of the brain can cause permanent damage. (10) In fact, lesions at an early age are now known to hinder development of the total cerebral mass, produce aberrant responses to external stimuli, and compromise learning more significantly than those suffered later in life.

Practical application

What do these recent developments mean to litigators? This research has important implications for using expert witnesses, challenging the reliability of an opponent's expert, and ensuring adequate compensation for the client.

Clearly, you must work with an expert who does not accept the notion that infant plaintiffs will outgrow their deficits. It is incorrect to assume that an impaired nervous system will develop in the same way as an unimpaired nervous system. Unfortunately, this assumption consistently makes its way into expert reports.

To accurately assess the client's educational, vocational, and mobility needs and determine an appropriate award for loss of income and opportunity, your expert must be familiar with recent research in pediatric brain injury. If the plaintiff was younger than seven years old at the time of injury, ensure that your expert takes this into account when determining vocational and rehabilitative needs.

Neuronal reorganization after head trauma has a significant impact on long-term development. How the impairments manifest themselves will vary over time, and therefore, so will the plaintiff's needs. The goal of pediatric rehabilitation is to attain the maximum functional recovery possible, given the plaintiffs age at injury and the injury's severity. Ensure that the expert focuses on the treatment required to restore function, rather than merely identifying the plaintiff's impairments immediately after injury.

The plaintiff's family and environment are critical to his or her improvement in functional ability. The claim for costs of future care, however, should not be discounted by the value of the family's care and support. Recognizing and properly quantifying the important contributions that the family makes to the plaintiff's recovery can lead to a significant in-trust claim that compensates the family for its care and support.

The current research provides a strong foundation for attacking the opponent's expert. You can undermine the defendant's case by challenging its expert's acceptance of the Kennard principle as the basis of his or her opinion about the plaintiff's potential for improvement. Cross-examine the defense expert on Kennard's lesser-known, but more important, later work, in which she acknowledged the inadequacy of her earlier research and outlined the potential for long-term deficits to appear later in life.

Understanding limitations

The impairments caused by traumatic brain injury are typically permanent. While some improvement in cognitive, physical, and emotional function is possible over the long term, plaintiffs and their families must recognize the limitations that result from a brain injury and try to establish appropriate life goals. The Kennard principle--in addition to potentially reducing a plaintiff's damages--gives a false prognosis of recovery to family members of a brain-injured infant or young child.

Researchers have come to view the rehabilitative potential of the brain-injured infant in a significantly different light in the early 21st century. By studying the recent research and ensuring that your experts are conversant with the current approach to assessing and predicting functional outcome for young children with brain injuries, you can ensure that these plaintiffs receive the compensation they need and deserve.

Notes

(1.) Margaret A. Kennard, Age and Other Factors in Motor Recovery from Precentral Lesions in Monkeys, 115 AM. J. PHYSIOLOGY 138 (1936).

(2.) Jeanette R.M. White et al., Predictors of Outcome in Severely Head-Injured Children, 29 CRITICAL CARE MED. 534 (2001).

(3.) J.F. Fulton, The Relation of the Cerebral Cortex to the Grasp Reflex and to the Postural and Righting Reflexes, 31 ARCHIVES NEUROLOGICAL PSYCHIATRY 221 (1934).

(4.) Margaret A. Kennard, Relation of "Spasticity" to Age in Young Monkeys and Chimpanzees, 65 TRANSACTIONS AM. NEUROLOGICAL ASS'N 58 (1939); Margaret A. Kennard, Relation of Age to Motor Impairment in Man and in Subhuman Primates, 44 ARCHIVES NEUROLOGICAL PSYCHIATRY 377 (1940).

(5.) Barbara Benz et al., Influence of Age-Related Factors on Long-Term Outcome After Traumatic Brain Injury (TBI) in Children: A Review of Recent Literature and Some Preliminary Findings, 44 RESTORATIVE NEUROLOGY & NEUROSCIENCE 135 (1999).

(6.) Cynthia L. Beaulieu, Rehabilitation and Outcome Following Pediatric Traumatic Brain Injury, 82 SURGICAL CLINICS N. AM. 393 (2002).

(7.) Marjaleena Koskiniemi et al., Long-Term Outcome After Severe Brain Injury in Preschoolers Is Worse than Expected, 149 ARCHIVES PEDIATRIC & ADOLESCENT MED. 249 (1995).

(8.) Jaques Duval et al., Recovery of Intellectual Function After a Brain Injury: A Comparison of Longitudinal and Cross-Sectional Approaches, 48 BRAIN & COGNITION 337 (2002).

(9.) Thomas A. Novack et al., Outcome After Traumatic Brain Injury: Pathway Analysis of Contributions from Premorbid, Injury Severity, and Recovery Variables, 82 ARCHIVES PHYSICAL MED. & REHABILITATION 300 (2001).

(10.) Margaret A. Kennard, Cortical Reorganization of Motor Function, 48 ARCHIVES NEUROLOGY 227 (1942).

John D. Briner practices law in Vancouver, British Columbia.