Proving cognitive and behavioral brain injuries.

In brain injury cases, attorneys often concentrate on physical injuries, such as skull fracture and destruction of brain tissue, and fail to appreciate cognitive and behavioral problems resulting from the injury.

Yet, these problems can be proven to a jury even without direct physical evidence of specific brain damage. The skillful use of appropriate experts can be an important factor in proving the extent of these invisible injuries.

It has been estimated that more than 2 million people sustain head injuries every year (many of which may include brain injuries) and 400,000 of these people are hospitalized.(1) Although up to 85 percent of brain injuries are regarded as mild, brain injury is the leading cause of disability in children and young adults.(2)

Brain injury can occur in a variety of actions that are the result of negligence and the focus of personal injury claims or litigation. Falls are a major cause of brain injury among elderly people and children, but motor vehicle collisions account for most comas and lasting brain damage.(3) Sports activities, domestic violence, and exposure to toxic chemicals can also cause brain injuries.

What Is a Brain Injury?

Legal definitions of brain injury appear in a number of state codes.(4) While these definitions vary in language and emphases, there seems to be conceptual agreement that a brain injury arises from external forces including but not limited to open or dosed head injuries, near drownings, oxygen deprivation, and toxic chemical reactions.

These injuries result in mild, moderate, or severe impairments in several areas, including sensory perception, motor abilities, speech and communication, learning and memory, attention, intelligence, abstract thinking, reasoning and problem solving, emotional control, and psychosocial behavior.(5) Typically, the definition excludes progressive dementias, such as Alzheimer's disease and other mentally impairing conditions for which there is no obvious trauma to the central nervous system.

Brain damage is caused by force sufficient to produce stretching, tearing, shearing, or bruising of the brain's nerve tissue. It usually results from acceleration-deceleration forces as when someone's head strikes an auto windshield or pavement. Injury occurs when the soft brain hits the bony interior of the skull or when the brain twists or rotates on its axis as a result of violent movement.

In addition to the primary brain dam age caused by external forces, secondary damage often occurs from increased pressure on the brain produced by hemorrhaging and swelling or from loss of vital oxygen due to cardiac or respiratory arrest or systemic shock.(6)

Depending on the interaction of many variables--including the extent of damage from a primary injury and prevention of secondary damage by rapid emergency response--a person with a brain injury may end up with problems in the following areas:

* alertness (for example, confused states and coma);

* attention and orientation;

* language and communication (for example, difficulties with speech, expression of thoughts, and comprehension);

* spatial perception and organization;

* learning and memory;

* higher-order cognition (for example, conceptualizing and problem solving);

* planning and insight; or

* behavior and emotions (for example, inappropriate aggression, anxiety, depression, and apathy).

Every person with a brain injury can be expected to have problems in many of these areas, but each will present a unique constellation of symptoms. Even a mild brain injury can present a pattern of cognitive and psychological symptoms that disrupts psychosocial functioning and results in occupational disability.(7)

An attorney with a brain-injured client must develop a working knowledge of brain structure, how brain injuries occur, and how they may affect everyday life. The attorney must understand that a person can sustain a brain injury without losing consciousness and without leaving evidence of structural damage that can be detected by traditional neurodiagnostic tests. Many people who have sustained injuries to the brain look perfectly normal.

Interestingly, the attorney may be the first person to recognize the manifestations of brain injury, particularly when the trauma was relatively mild, as in a concussion, or when subtle problems have gone unnoticed by physicians because neurodiagnostic test results were negative.

The client's disprupted manner of speaking, difficulty in understanding conversation, distractibility, irritability, or apathy may create the erroneous impression of a mentally deficient or emotionally disturbed person. Instead of hastily assuming a mental disorder, the attorney should consider the possibility of brain injury. In addition to recognizing problems caused by brain injury, attorneys must make their undestanding of the situation clear to clients by reviewing symptoms in a rational, compassionate manner.

It is especially important to explain what might be expected from the legal proceedings, including the length of time it may take to resolve the case, the likelihood of frequent delays, and the need for referrals to experts. Working with a brain-injured client will probably take more time and effort because the client may not process and act on information as would someone not suffering from a brain injury. The client, for example, may have difficulty adjusting to changes and delays or coping with frustrations.

When collecting information for the case, the attorney must be guided by the understanding that invisible injuries lie at the heart of disability caused by brain injury. Winning the case will have less to do with proving physical damages than with establishing how cognitive and behavioral impairments changed a person's ability to handle everyday life.

Personal injury attorneys are accustomed to compiling information about injuries. Medical records made during emergency treatment and hospitalization must be examined, as well as reports of physicians who provided care outside of the hospital. Ambulance (paramedic) records, police reports, and emergency room records should be examined for notations that might suggest brain injury, such as whiplash, head trauma, or alterations in consciousness. Medications or the presence of mind-altering substances should be noted.

It is also important to obtain additional information that can be used to compare the client's pre-injury capacity with post-injury capacity. Generally, attorneys should collect medical records from physicians who treated the client from childhood to adulthood whenever such records can be found. These records should be reviewed with an eye for any diseases and disorders--including nutritional deficiencies, endocrinological problems, and exposure to chemicals or toxins--that could have affected brain functioning.

Also, information from any psychiatric records can show whether cognitive and behavioral symptoms are manifestations of the injury, an exacerbation of a preexisting; mental condition, or evidence of a tendency to exaggerate symptoms or malinger.

School records may help determine if symptoms are associated with a longstanding learning disability or attention deficit disorder or any other cognitive or behavioral problem. Retention in a grade, referral to special education classes, or a need for tutoring might suggest these problems.

Employment records are also valuable sources about a person's cognition and behavior. These records generally reflect the person's ability to learn new tasks, apply knowledge on the job, and relate to coworkers and superiors.

Generally, the attorney must spare no effort in collecting all past and present records that might reflect on the client's brain functions. These need to be examined by appropriate experts as they consider and possibly rule out preexisting, coexisting, or alternate etiologies.

Selecting Experts

Selecting appropriate experts may be one of the most important factors influencing the outcome of a brain injury case. The attorney can be guided by answers to three important questions:

* What information do I need to handle this case?

* What kinds of experts can get this information?

* Can the experts present findings in an understandable way to jurors?

The attorney should search for experts who can integrate an array of clinical findings into a cogent picture of a person with brain injury and who can relate these findings to everyday life.

Four kinds of experts are usually needed in these cases: medical experts, neuropsychologists, vocational experts, and loss experts.

Medical experts, usually neurologists or neurosurgeons, can attest to the relationship between physical manifestations of brain injury (coma, paraplegia or motor weakness, vertigo, headaches) and the presence or absence of structural brain damage. Their testimony is often supported by results of neuroimaging, such as CT and PET scans or MRIs.

This testimony can make a powerful impression on jurors in severe cases. In cases of mild brain injury, the testimony of these experts must make clear to jurors how brain damage can exist without gross evidence of structural changes.

The attorney may also refer to a physiatrist, a specialist in physical medicine and rehabilitation with advanced training in evaluation and treatment of brain-injured patients after hospitalization. These experts typically work in rehabilitation hospitals, where they focus on improving a patient's physical condition and adjustment to the disability. Consequently, they are experienced in assessing, from a medical perspective, real-world effects of brain injury, such as how the residuals of an injury that affect speech may also alter sociability and cause depression.

Other medical experts who can support presentation of a brain injury case include

* psychiatrists-preferably a neuropsychiatrist who can evaluate the complex relationship between mood or thought disorders, abnormal behavior, and brain injury;

* ophthalmologist--preferably a neuroopthalmologist who can assess the relationship between disturbances in vision and brain injury;

* dentist--preferably a specialist who can address the problems of temporo-mandibular joint (TMJ) syndrome as well as jaw, head, or facial pain often associated with head injuries; and

* speech pathologists-who, although they are not trained in medicine, can provide scientific evidence in support of medical findings pertaining to language and communication disorders.

Neuropsychologists are doctoral-level psychologists who specialize in the relationship between a person's brain function and behavior. Neuropsychologists can provide quantitative and qualitative evidence about loss or diminution of brain capacities, describe the nature and consequences of brain injury on everyday life, provide a prognosis for improvement or deterioration, and delineate the probable causes of demonstrated losses.(8)

A neuropsychological evaluation is composed of psychometric tests that assess the nature and degree of disruption in brain functions. These tests and test batteries, such as the Halstead-Reitan(9) and the Luria-Nebraska(10) neuropsychological batteries, have been extensively researched and validated on many populations. In some cases, neuropsychological evaluations have been shown to be more sensitive as a detector of brain damage than neuroimaging techniques.(11)

A comprehensive neuropsychological evaluation tests alertness, attention and orientation, perception and integration of sensory information, motor abilities and coordination, language and communication, learning and memory, higher-order cognitive and executive abilities, and academic skills.

The evaluation also involves a thorough clinical interview with the patient to obtain a description of behavior before and after the injury in a number of important areas (marriage and family, work, education, social relationships, sexuality, substance abuse). The interview allows the neuropsychologist to form opinions about the patient's psychological state and to evaluate the possibility of symptom exaggeration.

Interviews should also be conducted with the client's family members, friends, and coworkers to discuss the client's cognitive and behavioral functioning before and after the injury. These interviews may uncover changes that are not apparent to the brain-damaged person.

With neuropsychological test results and findings from interviews and available records, the neuropsychologist is in a unique position to provide testimony about the significance of brain injury in the context of the client's whole life. This testimony also sets the stage for clarification of the effects of injury by vocational and loss experts.

Vocational experts evaluate the impact of brain impairments on the ability to earn a living. They know that the psychological and cognitive changes after brain injury have a more profound effect on a person's work capacity and community reentry than the physical changes.(12)

Vocational experts typically conduct interviews and tests aimed at analyzing behaviors and interpersonal skills related to employment. They identify the abilities needed for return to pre-injury work or transfer to other work settings. These experts can also determine the client's occupational interests and potential for learning new skills, particularly if impairments make it likely that the person cannot return to a previous job.

Loss experts include life care planners and economists. They can project the need for future care and its cost. These experts evaluate the need for services, such as physical and cognitive rehabilitation, neuropsychological counseling for adjustment problems, and specialized nursing care. They can also estimate the value of lost earnings and pensions.

By attaching realistic costs to the identifiable needs of brain-injured clients, these experts help determine the probable extent of damages in a case. The loss expert's analysis can serve as a documented basis for moving toward a fair settlement or for showing a practical, real-world rationale for compensation.(13)

Loss experts are widely used in catastrophic brain injury cases, but their testimony is also useful in mild brain injury cases. Many of the same future needs are relevant to mild brain injury cases.

Proving Damages

A focus on proof of structural brain damage alone may be insufficient to win a brain injury case. More important, it misses the point that the functional impairments arising from trauma to the brain are what are disabling.

Attorneys need to develop cases premised in the notion that there is no direct and absolute correspondence between a degree of neurologic impairment and the consequential effects on a person's ability to work, socialize with family and friends, and enjoy life. The injured brain has reduced functional capacities regardless of the extent of physical damage.

The neuropsychologist, in particular, may play a pivotal role by helping jurors to understand this important concept. In fact, the neuropsychologist's answers to key questions can help the attorney fashion trial strategy. For example:

* Are there brain deficits or impairments that are evident on neuropsychological testing?

* How valid and reliable are the tests that show these deficits?

* How can a person have a brain injury if there was no coma or loss of consciousness and no positive neuroimaging results?

* Were the circumstances necessary to produce these deficits present at the time of this injury?

* What are the effects of residual deficits on everyday life?

* How do present findings compare to estimates of this person's pre-traumatic functioning?

In anticipating the defence, the attorney will want to know what the neuropsychologist thinks about the possibility that the client may be misrepresenting deficits. Are there other explanations for the client's symptoms, such as preexisting problems in behavior?

In essence, the medical and neuropsychological experts must be able to explain to the satisfaction of jurors that other disorders or conditions, if present, could not have produced the findings offered as proof of brain injury.(14)

Attorneys should use experts to help overcome stereotypes of people with brain injury. The layperson's perception, unfortunately, is often based on movies and cartoons that show characters who easily bounce back from being knocked unconscious. Because brain-damaged clients often appear to be normal and may muster enough control to behave normally in court, jurors may incorrectly conclude that they are not seriously injured.

Experts have to clearly show that many people with brain injury can function appropriately in many social situations but easily become confused, agitated, or dysfunctional in situations that demand more complex thinking.

To successfully handle brain-injury litigation, attorneys must learn how to select experts and use them wisely. Working together, attorney and experts can help jurors focus on the client's documented loss of brain function, the real and lasting effect of brain injury.

Notes

(1) Bryan D. Fanue & Bryan Kolb, The Problems of Prognosis, in NEUROPSYCHOLOGY AND THE LAW 186 (Jane Dwyan et al. eds. 1991); Thomas Kay et al., Toward a Neuropychological Model of Functional Disability After Mild Traumatic Brain Injury, 6 NEUROPSYCHOLOGY 371 (1992). (2) Head Injury With and Without Hospital Admission: Comparison of Incidence and Short-term Disability, 77 J. PUB. HEALTH 810 (1987) (3) J.F. Kraus et al., The Incidence of Acute Brain Injury and Serious Impairment in a Defined Population, 119 AM. J. EPIDEMIOL. 186 (1983) (4) See, e.g., COLO. REV. STAT. [sections] 26-4 683 (3) (1995) (5) Frederick J. Holding & Tricia Raymant, Catastrophic Injury: A Call for Change, NEUROLAW LETTER, Oct. 1995, at 7. (6) Sanford H. Auerbach, The Pathophysiology of Traumatic Brain Injury, in 3 PHYSICAL MEDICINE AND REHABILITATION: STATE OF THE ART REVIEWS (Lawrence J. Horn & D. Nathan Cope eds. 1989); see NEUROBEHAVIORAL CONSEQUENCES OF CLOSED HEAD INJURY (Harvey S. Levin et al. eds. 1982). (7) Thomas Galski, Mild Traumatic Brain Injury, TRIAL, Mar. 1995, at 76. (8) Maureen Dennis, Assessing the Neuropsychological Abilities of Children and Adolescents for Personal Injury Litigation, 3 CLINICAL NEUROPSYCHOLOGIST 203 (1989). (9) For a discussion of the Halstead-Reitan test see generally MURIEL D. LEZAK, NEUROPSYCHOLOGICAL ASSESSMENT 440 (1976). (10) For a discussion of the Luria-Nebraska test batter,v, see generally CHARLES J. GOLDEN ET AL., LURIA-NEBRASKA NEUROPSYCHOLOGICAL BATTERY (1985). (11) See Christy L. Jones, Recovery from Head Trauma: A Curvilinear Process? in HANDBOOK OF HEAD TRAUMA: ACUTE CARF. TO RECOVERY 247 (Charles J. Long & Leslie K. Ross eds. 1992). (12) Rob Roberts, Vocational Evaluation and Planning, in HANDBOOK OF HEAD TRAUMA, supra note 11. (13) E. A. Provder, Life Care Plans-Documenting Damages in Catastrophic Injury Cases, 16 TRIAL DIPLOMACY J. 5 (19935. (14) Antoinette R. Appel, Recognizing Closed Head Injuries, NEUROLAW LETTER, June 1994, at 3.

Thomas Galski is director of psychology and neuropsychology and of the brain injury program at Kessler Institute for Rehabilitation, East Orange, New Jersey. George Carnevale is assistant director of the program. Both are also assistant professors at New Jersey Medical School, Newark, New Jersey.