Strategies to Maximize Recovery in the Mild Traumatic Brain Injury Case
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Prosecuting the mild traumatic brain injury (“mTBI”) case is a multi-faceted endeavor. It requires not only understanding the medicine, but also identifying the providers who can give our client the appropriate treatment health providers to ensure their path to recovery. It also requires effectively presenting your client’s case in the most effective manner to obtain the type of compensation that can help them live out a productive and meaningful life after the legal ordeal is over. According to the National Head Injury Foundation, there are approximately two million Americans who will suffer a traumatic brain injury every year. Of this, mild traumatic brain injury accounts for seventy five percent [75%] or more of those brain injuries. Automobile collisions are one of the most common causes of traumatic brain injury. Yet, there are medical research that shows people with mTBI can be left with disabling symptoms that leads to permanent and profound impairments in their life, work, and activities of daily living. Unfortunately, because the vast majority of victims “appear normal” and are not usually self-aware of their own problems, it is also known as “silent epidemic” according to the Center for Disease Control. Hence, many persons with mild traumatic brain injuries are often victimized due to a lack of understanding by many medical professionals to make the proper diagnosis early on. In many cases, instead of diagnosing a concussion or mTBI, many health care professionals usually overlook the diagnosis and veer to another diagnosis such as post-traumatic headaches, dizziness, anxiety, PTSD, or depression. This leads to an insufficient workup which results in little or no medical documentation of the head injury being entered early on or near its onset. This non-documentation of the head trauma creates a "false medical chart" for the brain injured patient that creates the recipe for later medical and legal mistreatment. The purpose of this presentation is to present some strategic approaches for the attorney on how to better serve these clients and maximize compensation for them. The suggestions are not intended to be exhaustive and intended to reflect only the views of this author. The goal is to provide some suggestions on what to do if you suspect your client sustain a mild traumatic brain injury.
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Strategies to Maximize Recovery in the Mild Traumatic Brain Injury Case
- 1. STRATEGIES AND APPROACHES TO MAXIMIZING RECOVERY IN THE MILD TRAUMATIC BRAIN INJURY CASE Edward K. Le, Esq. Edward K. Le, PLLC 135 Park Ave N. Renton, Wa 98057 (425) 336-2255 Email: edward@edwardkle.com www.edwardkle.com
- 2. mTBI IS A MULTI-MODAL INJURY COG- NITION BEHAVIOR ENDO- CRINE VISUAL VESTIBULAR PSYCHO- MOTOR SLEEP EPILEPSY PHYSICAL
- 3. THERE ARE MANY MOVING PARTS THAT THE BRAIN CONTROLS EACH SYSTEM IS DEPENDENT ON THE OTHER Edward K. Le / www.edwardkle.com
- 4. HANDLING THE mTBI CASE KNOW THE MEDICINE KNOW THE PROVIDERS TO TREAT THE INJURY KNOW THE EFFECTIVE WAY TO PRESENT THE CASE
- 5. 1. Carefully Vet and Screen Client at Intake for Potential mTBI Edward K. Le / www.edwardkle.com
- 6. CONDUCT AN INVENTORY OF YOUR CLIENT’S SYMPTOMS Edward K. Le / www.edwardkle.com
- 7. HAVE CLIENT FILL OUT A CHECKLIST • HEADACHE • DIZZINESS • MEMORY IMPAIRMENT • IMPAIRMENT OF ATTENTION • SLOWLED MENTAL PROCESSING • MENTAL AND PHYSICAL FATIGUABILITY • LOWERED FRUSTRATION TOLERANCE • APATHY/POOR MOTIVATION • DEPRESSION • PROBLEMS IN ABSTRACT REASONING • IMPAIRED LEARNING PROCESS • CONFUSION OF MENTAL STATE • DISTURBANCE IN SLEEP • NAUSEA • DECREASED TOLERANCE FOR STRESSEdward K. Le / www.edwardkle.com
- 8. FIND OUT FROM FAMILY AND FRIENDS IF THEY NOTICED CHANGES
- 9. EDUCATE CLIENTS ABOUT T.B.I TO HELP THEM SEEK TREATMENT Edward K. Le / www.edwardkle.com
- 10. 2. Know the Recent Sea Change in Medical Research Regarding mTBI
- 11. “There has been a sea change regarding the potential long-term consequences of mild traumatic brain injury (mTBI). Initial results suggested limited and transient behavioral changes and no long-term neuropsychiatric consequences for the majority of mTBI patients. The first decade of the 21st century was marked by an increased incidence of blast-related mTBI in the military and associated reports of high disability rates. Recent studies, predominantly based on autopsy and late-life data collected in select cohorts of semiprofessional and professional athletes, suggest that the effects of mTBI may be more severe.” 2017 META REVIEW ARTICLE FROM ACADEMY OF NEUROLOGY
- 12. 2017 LONGITUDINAL REVIEW ARTICLE FROM JOURNAL OF NEUROTRAUMA “We examined recovery from postconcussion syndrome (PCS) in a series of 285 patients diagnosed with concussion based on international sport concussion criteria who received a questionnaire regarding recovery. Of 141 respondents, those with postconcussion symptoms lasting less than 3 months, a positive computed tomography (CT) and/or magnetic resonance imaging (MRI), litigants, and known Test of Memory Malingering (TOMM)- positive cases were excluded, leaving 110 eligible respondents. We found that only 27% of our population eventually recovered and 67% of those who recovered did so within the first year. Notably, no eligible respondent recovered from PCS lasting 3 years or longer.”
- 13. ……, we performed a scoping review of the literature that behaviourally assessed short- and long-term cognitive function in individuals with a single mTBI, with the goal of identifying the impact of a single concussion on cognitive function in the chronic stage post-injury. …Data relating to the presence/absence of cognitive impairment were extracted from 45 studies meeting our inclusion criteria. Results indicate that, in contrast to the prevailing view that most symptoms of concussion are resolved within 3 months post-injury, approximately half of individuals with a single mTBI demonstrate long-term cognitive impairment. Study limitations notwithstanding, these findings highlight the need to carefully examine the long-term implications of a single mTBI 2017 McINNES META-ANALYSIS STUDY
- 14. 4. Identify Appropriate Doctors and Health Professionals To Provide Treatment Edward K. Le / www.edwardkle.com
- 15. FIND PROVIDERS WITH APPROPRIATE “FIT” TO ISSUES
- 16. THE BRAIN IMPACTS MANY SYSTEMS IN THE BODY AND EACH AFFCTS THE OTHEREdward K. Le / www.edwardkle.com
- 17. UNDERSTAND THAT EACH PROVIDER IS A PART OF THE REHAB BUILDING BLOCK TO YOUR CLIENTS’ RECOVERY Edward K. Le / www.edwardkle.com
- 18. PART OF OUR DUTY AS “PERSONAL INJURY” ATTORNEY IS TO PROVIDE GUIDANCE SO CLIENT MAY BE INFORMED Edward K. Le / www.edwardkle.com
- 19. 4. Understand the Role of Comorbidities and Its Effect on Long Term Recovery Process Edward K. Le / www.edwardkle.com
- 20. SPINE INJURY AND CHRONIC PAIN DEPRESSION AND STRESS DISORDER COGNITIVE DISORDER FROM BRAIN INJURY BALANCE/EQULIBRIUM DISORDER CLIENTS WITH POLYTRAUMA ARE MOST LIKELY TO EXPERIENCE PROLONGED INJURIES Edward K. Le / www.edwardkle.com
- 21. Edward K. Le / www.edwardkle.com
- 22. LOOK AT EFFECT OF INJURIES ON PERSON AS A WHOLE OVER LONG TERM Functionality Ongoing Medical Care Needs Quality of Life Relatationships Activities of Daily Living
- 23. 5. Find a Way to Objectify the mTBI Case & Be Familiar With New Neuroimaging Techniques Edward K. Le / www.edwardkle.com
- 25. PET SCANS
- 26. FUNCTIONAL MRI
- 27. QEEG
- 28. 6. Conduct As Many Focus Groups As Possible Edward K. Le / www.edwardkle.com
- 29. FOCUS GROUP CAN BE INFORMAL Edward K. Le / www.edwardkle.com
- 30. OR FORMAL
- 31. GOAL IS TO IDENTIFY POTENTIAL WEAKNESS IN THE CASE Edward K. Le / www.edwardkle.com
- 32. 7. Cultivate Compelling Lay Witnesses Who Can Accurately & Vividly Describe Your Client’s Injuries Edward K. Le / www.edwardkle.com
- 33. LAY WITNESS HELPS CONNECTS TECHNICAL ISSUES OFFERED BY EXPERTS TO JUROR’S EVERY DAY EXPERIENCE
- 34. JURORS RELATE TO LAY TESTIMONY BECAUSE it CORRELATES TO THEIR OWN EXPERIENCES
- 35. 8. Change the Lexicon that You Formerly Use from “Brain Injury” to “Brain Damage” Edward K. Le / www.edwardkle.com
- 36. INJURY HEALS DAMAGE IS PERMANENT HOW JURORS SEE THE WORLD
- 37. 9. Develop Trial Themes Early and Develop the Narrative to Fit the Theme THEME Edward K. Le / www.edwardkle.com
- 39. 10. Anticipate the Common Defenses Edward K. Le / www.edwardkle.com
- 40. A Negative Brain MRI or CT Scan Does Not Rules Out a TBI
- 41. Profound Brain Damage Can Occur Without Loss of Conscioussness PHINNEAS GAGE CASE – SEVERE BRAIN INJURY BUT NO LOSS OF CONSCIOUSNESS
- 42. Edward K. Le / www.edwardkle.com C.D.C REPORT TO US CONGRESS IDENTIFY RESEARCH THAT VICTIMS SOMETIMES ARE NOT AWARE OF SYMPTOMS UNTIL MONTHS LATER
- 43. BE WILLING TO TRY THE CASE TO GET JUSTICE FINAL ADVICE ON MAXIMIZING VALUE
- 44. Email: Edward@edwardkle.com https://www.linkedin.com/in/edwardkle https://plus.google.com/+EdwardKLePLLCRenton https://www.facebook.com/EdwardKLePLLC CONNECT WITH ME FOR MORE INFORMATION Edward K. Le / www.edwardkle.com
Editor's Notes
- You know. I been practicing for 24 years and I have attended literally hundreds of CLE during that time and the one mantra I always take away from these seminars if there’s one tip that can help my practice, then that CLE HAS been a worthwhile endeavor. If there is one thing that you should take away from this paper and seminar is that mTBI is not one dimensional but a multifaceted disorder that affects just about every part of a person’s life – from their cognition, mood, personality, sleep, hormones, vision, hearing, balance, energy level, perception of pain, and relationships with others.
- And it’s your job, as an effective attorney to know those moving parts and systems are interdependent on each other. For example, if your brain isn’t working right, it’s not just the brain but a whole host of other system in your body – sleep, endocrine, visual, vestibular, and many other parts.
- SO IF WE WANT TO MAXIMIZE THE VALUE OF OUR CLIENT’S CASE, WE HAVE TO DO A LOT OF THINGS: WE NEED TO KNOW MEDICINE KNOW THE PROVIDERS WHO CAN PROVIDE TREATMENT KNOW HOW TO EFFECTIVELY PORTRAY THOSE INJURIES AT TRIAL OR DURING SETTLEMENT CONFERENCES AND SO FOR THE NEXT 2O MINUTES, WHAT I LIKE TO DO IS TO GIVE YOU MY TOP TEN LIST OF THINGS TO DO.
- This is the starting point. You can’t represent your client nor can you adequately maximize the amount you get for them if you don’t know what type of injuries they have
- Need to conduct an extensive inventory of their symptoms at the intake. Find out
- And the only way you’re going to do this is if you have checklists, process, and procedures in place to help you and your staff identify what they are.
- This means not just getting to know the client, but meeting with their loved ones, their friends, or coworkers. A lof mTBI clients are not going to be aware of their own problems and so their spouses or famil will most likely know more
- Ten years ago, many neurologist, neuropsychologist, and neuropsychiatrists I worked would tell me that eighty five percent [85%] of patients with mTBI usually get better within three months unless there were significant and complicating factors such as higher age, lower education, and the existence of a significant comorbidities.
- DON’T TAKE MY WORD FOR IT. THIS IS STRAIGHT FROM A RECENT META REVIEW ARTICLE FROM THE ACADEMY OF NEUROLOGY
- THERE’S BEEN MANY LONGITUDINAL STUDIES WHERE PATIENTS WHO SUSTAIN MTBI ARE BEING FOLLOWED FOR 20 YEARS AND THE FINDINGS HAVE BEEN ASTONISHING.
- PERHAPS ONE OF THE MOST IMPORTANT STUDY IS WHAT I TERM THE MCINNESS STUDY.
- IDENTIFY DOCTORS AND HEALTHCARE PROFESSIONALS WHO HAVE THE EXPERTISE WHO CAN HELP YOUR CLIENT
- NOT ALL NEUROLOGIST WILL BE EQUIPPED WITH THE LATEST RESEARCH NOT ALL NEUROLOGIST OR PHYSIATRIST CAN HANDLE AND ADDRESS ALL OF YOUR CLIENT’S INJURIES SUCH AS SLEEP, HEADACHES, VISUAL PROBLEMS, VESTIBULAR PROBLEMS. THAT’S WHY YOU NEED TO IDEFNITY THOSE WHO HAVE TH RIGHT FIT TO TREAT YOUR CLIENT
- IN MY WRITTEN MATERIALS, I IDENTIFY SEVERAL TYPES OF PROFESSIONALS WHO YOU MIGHT WANT TO CONSIDER BEING PART OF YOUR CLIENT’S REHAB TREATMENT TEAM. IT’S BEEN MY EXPERIENCE THAT ALTHOUGH IN MOST PHYSICAL INJURY CASES, THE LESS NUMBER OF EXPERT YOU USE, THE BETTER. IN TBI CASES, IT IS USUALLY THE CASE OF THE MORE EXPERTS, THE BETTER.
- I will not discussed this topic in detail since it will already be covered at length by another speaker at this seminar. Nevertheless, documenting the existence of comorbidities is one of the most important task for a traumatic brain injury litigator
- MEDICAL LITERATURE SUBSTANTIATE THAT CLIENTS WITH GREATERE NUMER OF COMORBDIITIES OR MEDICAL CONDITIONS TEND TO SUFFER THE WORSE IN TERMS OF PROGNOSIS.
- IN FACT, ONE OF THE MOST COMMON COMORBITY IS DEPRESSION. DEFENSE WILL CLAIM THAT YOUR CLIENT’S COGNITIVE DEFICITS ARE ALL DUE TO DEPRESSION. That even if your client had depression, that itself can be disabling; 2. That depression can last a lifetime; 3. That depression can cause psychomotor retardation; 4. That depression can cause cognitive retardation; 5. That depression can cause vegetative symptoms that are even worse than a brain injured person would sustained; 6. That ongoing depression can itself lead to permanent brain damage by causing irreversible damage to the structures and neural pathways in the brain; 7. That depression can lead to early death, suicide, and a substantially diminished quality of life; 8. That depression can destroy relationships, lead to divorce, and cause estrangement in the parent-child relationship. 9. That depression can cause so much misery and pain that make a person feel like their life is not worth living
- CAN’T SEPARATE THE INJURY OUT FROM THE IMPACT IT HAS ON THE PERSON AS A WHOLE TBI, WHEN COMBINED WITH OTHER COMORBIDITIES, CAN HAVE PROFOUD IMPACT ON YOUR CLIENT’S LIFE.
- THERE ARE NEW ADVANCES IN NEUROIMAGING THAT HAVE BEEN REVOLUTIONARY IN THE WAY MTBI IS NOW BEING DIAGNOSED. YOU SHOULD KNOW WHAT THESE NEW NEUROIMAGING TECHNIQUES ARE BECAUSE IT CAN LITERALLY CHANGE YOUR PRACTICE. IN FACT, YOU’LL FIND THAT WHERE YOU’RE SETTINLING YOUR MTBI CASE FOR 300 TO 500K, THESE NEW NEUROMAGING TECHINQUES CAN SIGNIFICANTLY BOOST THE VALUE OF YOUR MTBI CASE INTO THE SEVEN DIGITS.
- WE BEEN INCORPORATING THESE NEW NEUROIMAGING STUDIES AND QEEG INTO OUR PRACTICE WITH GREAT EFFECT
- Focus groups are essential not only to cases involving mTBI, but to the preparation of any case. There are so many variables in the mTBI cases that subtly affect the value of the case that it is incumbent on the attorney to do the focus groups early on to understand the nuances involved. Given all of the recent media coverage on concussions and brain injuries involving blast survivors from the Iraq and Afghanistan wars and concussion in the NFL, it benefits the attorney to know what preconceptions these potential jurors may hold before they reach your jury pool.
- YOU NEED TO PREPARE FOR WHAT JURORS THINK ABOUT YOUR CASES AT TRIAL
- LAY WITNEWSES ARE PROBABLY ONE OF THE MOST IMPORTANT PART OF ANY CASE No medical expert in the world can ever help you obtain a fair verdict unless you have compelling lay witnesses who can vividly describe the everyday impairment and limitations that your client struggles with as a result of mTBI. As countless lawyers who handle mTBI cases have previously shared in lectures, having and presenting good lay witnesses can make the biggest differences to your case
- Jurors do not typically identify with medical experts, unless they are in the medical field themselves. Some may understand the medical jargon, but many will struggle with the complexity of the medical science Yet, it has been my observations from trying many cases that these same jurors will connect more with your lay witnesses. They may not know what diffuse axonal shearing is but they definitely know how confused, forgetful, and unfocused impact your client’s ability to perform his work and engage with his family. They may not know what executive function deficit is, but they know that missing a mortgage or bill payment is important.
- IN THE MATERIALS I SUBMITTED, I RECOUNTED EVENTS WHERE HAVING LAY WITNESSES SERVE AS INSTRUMENTAL PART OF THE SUCCESSFUL RESULT IN SOME OF MY CASES
- EVERY CLIENT HAS A STORY. EVERY STORY HAS A THEME CANNOT TRY THE CASE EFFFECTIVELY UNLESS YOU HAVE A TRIAL THEME SOME MTBI CASES CAN BE VERY SCIENTIFICALLY AND MEDICALLY COMPLEX. THEMES HELP YOU SIMPLY THE CASE DOWN
- YOU NEED TO WEAVE ALL OF THOSE TRIAL THEMES INTO YOUR CASE AT EVERY PART OF THE TRIAL
- It is my firm opinion that, as an attorney, you cannot be an effective advocate for your client if you do not anticipate and prepare for the typical defenses. In fact, there are whole books that are written by the defense on how to defend the mTBI case. To be a successful advocate for your client, you must know how to deal with these defenses in advance
- There is one other final tip that I would like to emphasize and that is the decision to try the case. Although not specific to the mTBI case, I have found that the amount that an insurance company is willing to pay often is dependent in how it perceives the willingness of counsel to try the case. As an attorney, your reputation, ability and willingness to try the case is a significant value driver. The more cases you try, the more the insurance company is willing to negotiate with you in good faith. From my experience, there are few cases that are as fun to try as the mTBI case. Hence, if you are willing to try more of these cases, you will see substantially better outcomes with your other mTBI cases by becoming more verse in the medicine and trial tactics involved.