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Traumatic Brain Injury The Invisible Injury amnesia


									                           Traumatic Brain Injury
Traumatic Brain Injury: The Invisible Injury ..................................................................... 1
Frequency of Traumatic Brain Injury: You Are Not Alone ............................................... 2
What is "Mild" Traumatic Brain Injury? ............................................................................ 4
Moderate to Severe Traumatic Brain Injury ....................................................................... 7
Biomechanics of Traumatic Brain Injury ........................................................................... 7
Common Testing: Will it Help With TBI Diagnosis? ........................................................ 8
Treatment/Rehabilitative Team ........................................................................................ 12
Organic Brain Injury and/or Post-Traumatic Stress Disorder .......................................... 13
Economic Losses in TBI Cases: ....................................................................................... 16
Concussion in Sport .......................................................................................................... 19
Choosing a TBI Lawyer .................................................................................................... 20
Help for Families and Care Givers ................................................................................... 22
Traumatic Brain Injury Resources .................................................................................... 23

Traumatic Brain Injury: The Invisible Injury

Traumatic Brain Injury (TBI) is not like any other injury. Sadly, because many of the
symptoms of "mild" to "moderate" traumatic brain injury are subtle, and because the
injury commonly avoids detection on our most sophisticated hospital imaging equipment,
it is common for victims to go undiagnosed. This is especially so in the emergency room.

Due to the invisible nature of the injury, victims of traumatic brain injury only rarely
receive prompt treatment for their physical and cognitive impairment. Not uncommonly,
victims' early medical charts are devoid of any mention of "head injury" or "cognitive
impairment". It is only later, if lucky, that a health care professional validates the victims"
injury, and treatment finally ensues.

As with most misunderstood injuries, society and "old school" health care practitioners,
are apt to label the TBI victim a malingerer, or worse. Because victims of traumatic brain
injury appear outwardly just as they did before the injury, it should come as no surprise
that many victims describe their post-injury experience as including progressive social
isolation together with alienation from even immediate family.

Practically, victims of TBI are unable to process information at pre-injury rates of speed.
Nor is the range of subject matter about which an individual can think the same for a

victim of traumatic brain injury. Accurate judgment becomes difficult, at best.
Communication is oftentimes stifled, and the ability to conform behavior is impaired.
Violent behavior may manifest as a result of frustration and inability to respond in a pre-
morbid (pre-injury) manner. Headaches are common, and smell and taste can be affected.
Memory and recall are often times profoundly affected.

Conscious or unconscious awareness of the situation becomes the private "hell" of the
victim, who is alone and unable to diagnose or resolve the injury. Describing this
unfortunate circumstance, Dr. Antoinette R. Appel has stated: "Left to fend for
themselves, the victims of traumatic brain injury, already confused by their inability to be
the people they were prior to the injury, now face the daunting task of demonstrating that
an injury they do not understand and cannot comprehend is producing the confusion they
cannot communicate."

  Frequency of Traumatic Brain Injury: You
               Are Not Alone
If trauma-caused brain injury were instead disease-resulting, it would be labeled a
"plague of epidemic proportions. Only slightly exaggerated, the fact remains that the
frequency of traumatic brain injury is extremely high.

Unfortunately, as could be expected, the failure to properly diagnose and even define
brain injury compromised the accuracy of early studies, whose goal was to track the
frequency of traumatic brain injury in the United States of America. These studies are
commonly referred to as "epidemiological studies".

For example, many of the early studies (1935-1981) required one or more of the
following criterion for inclusion: (i) loss of consciousness; (ii) hospital admission; and/or
(iii) positive neuro-radiological findings. Moreover, these earlier studies sporadically did
not include cases in which the patient actually died before reaching the hospital.

Nonetheless, even utilizing the outmoded, inaccurate criterion of the past, frequency rates
of traumatic brain injury were found as high as 10 per 175 patients, and only as low as 10
per 600 patients.

Modern studies focusing on the frequency of traumatic brain injury (1981-present) have
attempted to resolve inaccurate definitional difficulties and have looked beyond hospital
discharge coding problems. These studies tend to be much more accurate and
demonstrate an alarming frequency rate of traumatic brain injury.

Based on the modern studies, it is likely that the annual incidents of new head injuries
treated in hospitals in this country is 400 per 100,000 patients treated. Accordingly, more
than 1,000,000 new head injuries are treated in hospitals each year. Even these studies,

however, ignore the numerous cases of "mild" traumatic brain injury in which the patient
is never hospitalized.

Corroboration for these numbers comes from the most recent data from the Center's for
Disease Control and Injury Prevention (CDC): It is now estimated that there are 5.3
million children and adults living with the consequences of sustaining a traumatic brain
injury in the United States. This number represents nearly 2% of the population.

TBI does not discriminate. It can happen to a child or adult of any age, gender, race,
religion, or socio-economic status. The risk of TBI is highest among adolescents, young
adults and persons over the age of 75. In comparing the national prevalence rate for TBI
with other more commonly cited and discussed disabilities, it is easily understood why
TBI is often referred to as the "silent epidemic". Examples of other prevalence rates
(from CDC) follow:

400,000 with Spinal Cord Injuries;

500,000 with Cerebral Palsy;

2.3 million with Epilepsy;

3.0 million with Stroke disabilities;

4.0 million with Alzheimer's Disease;


5.4 million with Persistent Mental Illness;

and 7.2 million with Mental Retardation.

An estimated TWO MILLION people receive a traumatic brain injury each year and
someone will sustain a brain injury every fifteen seconds. An estimated ONE MILLION
people are treated for TBI and released from hospital emergency departments each year.
Each year 230,000 Americans are hospitalized (longer than ER booking) as a result of
TBI. Each year 80,000 Americans experience the onset of long-term disability as a result
of sustaining a TBI. More than 50,000 people die every year as a result of TBI.

Vehicle crashes are the leading cause of brain injury. They account for 40% of all TBI's
Falls are the second leading cause of TBI and the leading cause of brain injury in the
elderly. In 1990, Congress responded to the reported increase in TBI by amending the
Individuals with Disabilities Education Act (PL 101-476) to include TBI as a separate
disability category. {See also, Code of Federal Regulations, Title 34, Section

In response to recommendations of the Interagency Head Injury Task Force,
Representative Jim Greenwood introduced the first version of the TBI Act during the
103rd Congress. He was later joined by Henry Waxman as lead co-sponsor in the House.
Senator Orrin G. Hatch and Senator Edward M. Kennedy introduced similar legislation in
the Senate. The Legislation was re-introduced in the 104th Congress and signed into law
as PL 10-166 on July 29, 1996. This Legislation provides for CDC surveillance of
occurrence and cause of TBI (hence the statistics above), as well as development of
medical treatment and prevention. Grants and other public funding mechanisms are also
included in the legislation. In introducing S-96 on January 4, 1995, Senator Hatch stated:
"Sustaining a traumatic brain injury can be both catastrophic and devastating. The
financial and emotional costs to the individual, family, and community are enormous.
Traumatic Brain Injury is the leading cause of death and disability among Americans
under the age of 35. In the State of Utah, for example, the main affected age is 28, which
is often the beginning of an individual's maximum productivity * * *.”

Senator Kennedy's introductory statement included the following: "In 1988, Congress
recommended the Secretary of Health and Human Services establish an Interagency Head
Injury Task Force to identify gaps in research, training, medical management, and
rehabilitation. This legislation responds to the prevention, research, and service needs
identified by the Task Force. This Bill will promote coordination in the delivery system
and assure greater access to services for victims suffering from the disabling
consequences of these injuries. By improving the quality of care, we can reduce severely
the disabling effects and reduce the heavy toll from these injuries".

Unfortunately, while this legislation may help, the public (taxpayer) cannot foot the entire
bill resulting from these injuries, especially where the injury results from the negligent or
intentional wrongs of another. Moreover, due to advances in medical technology,
especially in the diagnostic areas of medicine (PET, MRI, etc.), brain injury is likely to
be diagnosed at greater rates than ever before. It is not necessarily that there are more
brain injuries occurring today, but due to poor diagnostic capabilities in the past, these
injuries were simply overlooked, and unfortunately, left untreated for the most part.

     What is "Mild" Traumatic Brain Injury?
Historically, words such as "mild", "moderate", and "severe" were utilized to define brain
injury. For many years, these terms were utilized based on duration of loss of

Today, it is universally accepted that brain injury can occur without loss of
consciousness,without direct external trauma to the head, and without positive findings
on CT, MRI, or other sophisticated diagnostic testing.

Acknowledging this latter point, in the 1995 Journal of Neurotrauma it is stated:

"Although current computerized tomography (CT) and magnetic resonance imaging
(MRI) techniques have shown great utility in diagnosing various aspects of traumatic
brain injury, damage resulting from mild diffuse brain injury often goes undetected with
these procedures." (Emphasis added). [Smith, D.H.; Meaney, D.F.; Lenkinski, R.E.;
Alsop, D.C.; Grossman, R.; Kimura, H.; McIntosh, T.K.; Gennarelli, T.A.; (1995) New
Magnetic Resonance Imaging Techniques for the Evaluation of Traumatic Brain Injury.
J.Neurotrauma 12(4): 573-577]

We at the Scarlett Law Group find it repugnant to utilize terms such as "mild" or
"moderate" to describe a permanent brain injury. However, until the lexicon of health
care practitioners, experts, and others change, we seem destined to face use of these terms
to describe brain injury. We must, therefore, assist all those seeking assistance, and even
those who are not, with the true meaning of the words "mild" and "moderate" as they
pertain to brain injury. When it describes a brain injury, we believe the word "mild" is
synonymous with "serious".

The Mild Traumatic Brain Injury Committee of the Head Injury Interdisciplinary Special
Interest Group of the American Congress of Rehabilitative Medicine define mild
traumatic brain injury as follows:


“A patient with mild traumatic brain injury is a person who has had a traumatically
induced physiological disruption of brain function, as manifest by at least one of the

1. Any period of loss of consciousness;

2. Any loss of memory for events immediately before or after the accident;

3. Any alteration in mental state at the time of the accident (i.e., feeling dazed,
disoriented, or confused); and

4. Focal neurological deficits that may or may not be transient; but where the severity of
the injury does not exceed the following:

* Post-traumatic amnesia (PTA) not greater than 24 hours;

* After thirty minutes, an initial Glasgow Coma Scale (GCS) of 13-15;

* Loss of consciousness of approximately thirty minutes or less;


This definition includes:

1. The head being struck;

2. The head striking an object;

3. The brain undergoing an acceleration/ deceleration movement (i.e., whiplash) without
direct external trauma to the head. It excludes stroke, anoxia, tumor, encephalitis, etc.
Computed tomography magnetic resonance imaging, electroencephalogram or routine
neurological evaluations may be normal. Due to the lack of medical emergency, or the
realities of certain medical systems, some patients may not have the above factors
medically documented in the acute stage. In such cases, it is appropriate to consider
symptomology that, when linked to a traumatic head injury, can suggest the existence of
a mild traumatic brain injury.


The above criteria define the event of mild traumatic brain injury. Symptoms of brain
injury may or may not persist, for varying lengths of time, after such a neurological
event. It should be recognized that patients with mild traumatic brain injury can exhibit
persistent emotional, cognitive, behavioral and physical symptoms, alone or in
combination, which may produce a functional disability. These symptoms generally fall
into one of the following categories, and are additional evidence that a mild traumatic
brain injury has occurred.

1.Physical symptoms of brain injury (e.g., nausea, vomiting, dizziness, headache, blurred
vision, sleep disturbance, quickness to fatigue, lethargy, or other sensory loss) that cannot
be accounted for by peripheral injury or other causes;

2.Cognitive deficits (e.g., involving attention, concentration, perception, memory,
speech/language or executive functions) that cannot be completely accounted for by
emotional state or other causes; and

3.Behavioral changes and/or alterations and degree of emotional responsivity (e.g.,
irritability, quickness to anger, disinhibition, or emotional lability) that cannot be
accounted for by a psychological reaction to physical or emotional stress or other causes.


Some patients may not become aware of, or admit, the extent of their symptoms until
they attempt to return to normal functioning. In such cases, the evidence for mild
traumatic brain injury must be reconstructed. Mild traumatic brain injury may also be
overlooked in the face of more dramatic physical injury (e.g., orthopedic or spinal cord
injury). The constellation of symptoms has previously been referred to as minor head
injury, post-concussion syndrome, traumatic head syndrome, traumatic dephalgia,
postbrain injury syndrome and post-traumatic syndrome." J Head Trauma Rehabil

 Moderate to Severe Traumatic Brain Injury
Those who sustain concussion, hemorrhage, significant loss of consciousness, coma,
and/or skull fractures are typically diagnosed as having sustained a "moderate" to
"severe" traumatic brain injury.

Injuries of this nature are generally detectable on CT, MRI, and other imaging devices. In
many instances, the patient's very survival is an issue. Brain swelling, contusion and
edema are likely complications. In virtually all cases, quality of life is a premier end goal.

The resulting impairments suffered by the "moderate" to "severe" traumatic brain injury
victim can generally be related to the original insult, although in case after case insurance
companies and their lawyers contest these relationships. Physical consequences of
"moderate" to "severe" traumatic brain injury are diverse and vary from patient to patient.
They may include: paralysis, sensory losses, decreased muscle control, including
hemipareses, weakness, seizures, sleep disorders, speech and eating disorders, as well as
memory and recall difficulties.

Individuals, while in coma, represent the “severe” end of traumatic brain injury. This is
not to infer that one need be comatose to be classified as having sustained a “severe”
traumatic brain injury, but comatose individuals have clearly sustained a “severe”
traumatic brain injury irrespective of its potential transient nature.

Family members of comatose patients are often times left with nothing but hope, as
health care professionals too, must wait as the human recovery process begins. It is no
less important for family members to seek assistance from support groups during the
recovery process.

A multi-disciplinary treatment and rehabilitative approach can be justified in virtually all
cases of “moderate” to “severe” traumatic brain injury.

 Biomechanics of Traumatic Brain Injury
Traumatic brain injury or a closed head injury can occur when the head is subjected to a
direct external impact. Likewise, injury can occur when the head is subjected to a sudden
acceleration and then is suddenly stopped. A sudden acceleration/deceleration often
follows a violent flexion – extension movement of the head. This response is extremely
common in rear-end vehicle collisions.

Condensed to its most simplistic, there are three major mechanisms which contribute to
traumatic brain injury.
These include: (a) impact of the brain against the skull; (b) shear between layers of the
brain; and (c) cavitation.

(a) Brain v.Skull. Depending upon how the impact occurred, be it a rear-end collision or
other source, the head starts its movement to the rear while the brain resists, thereby
leaving a space at the back of the skull. As this force progresses, a centrifugal force lifts
the brain thereby leaving spaces between it. Both inertia and centrifugal force causes the
brain to impact against the skull. This impact may cause damage to the brain.

While the skull provides considerable external protection because of its strength, its
inner-contours are not smooth and are characterized by sharp, bony proturbences. When a
blow is dealt to the head, the brain is flung against these bony proturbences and is bruised
and torn, resulting in brain damage.

(b) Shear – Diffuse Axonal Shearing. Another mechanism of brain injury is that of
shear. Shear is based on rotational acceleration/deceleration, and a sliding effect of one
layer of the brain upon another. Shear occurs within the brain because of the difference of
density in layers.

Axonal shearing can occur where an axon transverses between two or more layers of the
brain which are subject to shearing forces. Often times, damage to the axons is diffuse
and degeneration happens throughout the brain rather than in specific clusters. Diffuse
axonal shearing is a common cause of "miild" traumatic brain injury, and is rarely visible
upon imaging.

(c) Cavitation. Cavitation occurs when mass moves rapidly through fluid. The pressure
in front of the mass is high and the pressure behind the mass is low. Vapor filled bubbles
form in low pressure. When a mass returns in the opposite direction, the bubbles collapse.
If this occurs often, the brain can be injured.

Many times, injuries are found opposite the point of impact. This type of injury is called
the "countre-coup", a French term meaning "against the blow". Cavitation is the most
commonly accepted explanation for this type of injury.

    Common Testing: Will it Help With TBI
Family members, as well as victims, often learn of various tests purportedly administered
following traumatic brain injury. Whether the tests were administered in a given case,
and whether positive results were found, may not conclusively establish, nor rule out, the
existence of brain injury. Nonetheless, brief description of common tests follows:

(a) Glasgow Coma Scale. Often times administered by EMT personnel or paramedics
during ambulance transport from the scene of an accident, the Glasgow Coma Scale rates
(1) a patient's ability to open his/her eyes; (2) motor responses to verbal/painful stimulus;
and (3) verbal responses.

The Glasgow Coma Scale is also used to rate coma victims, and an individual's response,
or lack thereof, may correlate, especially in severe cases, to cognitive deficits:

Eyes ______Score

Open spontaneously 4

Open to verbal command 3

Open to pain 2

No response 1

Best Motor Response to Verbal Command

Obeys verbal command 6

Best Motor Response to Painful Stimulus

Localizes pain 5

Flexion – withdrawal 4

Flexion – abnormal 3

Extension 2

No response 1

Best Verbal Response Oriented and converses 5

Disoriented and converses 4

Inappropriate words 3

Incomprehensive sounds 2

No response 1

Remember, modern definitions of mild traumatic brain injury allow for a Glasgow Coma
Scale score of between 13 to 15. Under the Scale itself, a person generally thought to be
alert and oriented would be rated 15, while an unresponsive comatose individual would
rate as low as 3.

(b) Sophisticated Imaging. Various sophisticated imaging tests may have been
performed diagnostically in the hospital or radiology setting. These include:

(1) Skull x-rays;

(2) CT Scans;

(3)MRI Scans; and

(4) EEG studies.

Generally speaking, this imaging is extremely helpful in cases involving skull fractures as
well as hematomas, or hemorrhages which may occur at a variety of locations in the

Common hematomas include extradural hematomas involving a collection of blood
outside the dura between the inner-table of the skull and the dura; subdural hematomas
involving a collection of blood beneath the dura; and intra-cerebral hematomas involving
a collection of blood within the brain itself.

These imaging tests may reveal no positive findings, however, in cases involving "mild"
traumatic brain injury. Often times, "mild" to “moderate” traumatic brain injury involves
diffuse axonal injury caused by shearing forces. Indeed, axonal degeneration is only seen
in the traumatized brain. Yet, its direct visualization is not presently technologically
feasible except when a large number of clustered neurons are interrupted. Following
death, however, neuro-pathological investigation clearly evidences diffuse axonal

Recently, the development of new, highly sophisticated imaging techniques have helped
the diagnostic process, but are still far from conclusive. Such tests include:

(1)brain mapping;

(2)SPECT scans;

(3)PET scans; and

(4) MRA.

While not conclusive, these tests have provided validation for neuropsychological
assessments, and in the setting of the courtroom may provide the jurors with a picture of
the invisible injury.

(c) The Rancho Los Amigas Cognitive Scale.This scale describes levels of function and
is used to evaluate the progress of a patient and rehabilitative development. Victims
routinely reflect multiple category symptomology.

(i) No Response. No response to pain, touch, sound or sight. (Patient appears to be in
deep sleep.)

(ii) Generalized Response. General reflex response to pain.

(iii)Localized Response. Localized response to pain. (Blinks to strong light, turns toward
or away from sound, responds to physical discomfort, inconsistent response to

(iv) Confused/Agitated. Alert, very active, aggressive or bizarre behaviors, performs
motor activities, but behavior is non-purposeful, extremely short attention span.

(v) Confused/Non-Agitated. Gross attention to environment, highly distractible, requires
continual redirection, difficulty learning new tasks, agitated by too much stimulation.
May engage in social conversation but with inappropriate verbalization.

(vi) Confused/Appropriate. Inconsistent orientation to time and place, retention
span/recent memory impaired, begins to recall past, consistently follows simple
directions, goal-directed behavior with assistance.

(vii) Automatic/Appropriate. Performs daily routine in highly familiar environment in a
non-confused but automatic robot-like manner. Skills noticeably deteriorate in unfamiliar
environment. Lacks realistic planning for own future.

(viii) Purposeful/Appropriate. Patient is alert and oriented and is able to recall and
integrate past and recent events.

(d)Neuropsychological Testing. Neuropsychological testing is the sine qua non for
modern diagnostics of brain injury. It is proven reliable, accurate, and unlike other testing
and evaluative mechanisms which compare patients with the so-called "normal person",
neuropsychological testing evaluates whether a particular patient has himself/herself

The rationale for this distinction is easily enunciated: As an individual grows and
matures, s/he develops and utilizes the most efficient pathways in the brain. When
traumatic brain injury occurs, many times those pathways are severed or unable to
properly transmit or receive information. Methods of learning and behaving are altered.
While this individual may still be within the normal population range, s/he would surely
be outside their individual "pre-injury" range.

Neuropsychological testing allows competent professionals to reach the conclusion, to a
reasonable degree of scientific probability, that organic brain injury has occurred. It
further allows the professionals to pinpoint areas of deficit, be they visual/spacial,
memory, recall or other. Simply put, neuropsychological testing is the most important
testing most "mild" to “moderate” traumatic brain injury patients will undergo.

Neuropsychological assessment is a method of validation, which measures the ability of
the nervous system to perform cognitive functions we minimally need to exist. It
measures compromise of functions against pre-morbid capabilities. Neuropsychologists

are psychologists with specialized training. Neuropsychological assessment is an
interface between science and practice.

Current debate in the field of neuropsychology focuses primarily on approach. Many
neuropsychologists advocate the quantitative approach utilizing the so-called "non-flex"
Halstead-Reitan battery of testing. Still others advocate the "flexible battery" approach.
Statistical accuracy is the issue.

Irrespective of approach, neuropsychological assessment is essential to the proper
diagnoses and treatment of most victims of traumatic brain injury.

              Treatment/Rehabilitative Team
Survivors of traumatic brain injury are likely to receive hospital and rehabilitative care
from a wide range of professionals. Indeed, a multi-disciplinary treatment and
rehabilitative approach is justified in cases of traumatic brain injury. A very brief
summary of the role each professional may play follows. Note, however, that the needs of
each patient are unique, and many of the following specialists may not therefore be
required. Likewise, still other patients may require the services of orthopedics,
otolaryngologists, and others, not discussed below.

(a) Neurosurgeon. Physician specialist trained in the surgical intervention of the nervous
system, including the brain, spinal cord, nerves and muscle.often- times the team
coordinator in cases of “moderate” to “severe” traumatic brain injury.

(b) Neurologist. Physician specialist trained in medical treatment of nervous system,
including brain, spinal cord, nerves and muscles. May be called upon to diagnose injury
and consult on immediate medical care. Seek neuropsychologist opinion if injury called
"mild" or "short-term"

(c) Physiatrist. Physician specialist with emphasis both in physical medicine and
rehabilitative medicine. Directed at renewing function, these doctors are trained both in
neurology and orthopedics.

(d) Neuropsychologist. Psychologist specialist trained to assess brain function through
test batteries designed to measure cognitive deficits. Thereafter,selects and conducts
rehabilitative efforts.

(e) Respiratory/Pulmonary Therapist. Trained therapist that assist the pulmonary needs
of a patient, including maintenance of ventilators employed to insure clear airways,
especially on comatose patients.

(f) Physical Therapist. Trained therapist whose focus is on motor function, coordination,
balance, and endurance. Physical therapists actually work with the patient exercising and
strengthening muscles.

(g)Occupational Therapist. Trained therapist teaching rehabilitation skills to the patient.
The focus is on both gross and fine motor skill within the context of daily living. Areas of
training may include bathing, toileting, feeding, and dressing.

(h) Speech Pathologist. Trained specialist whose sole focus is on speech and
communication deficits. Depending on severity of deficit, oral communication, written
communication and computer training may be utilized and/or analyzed.

(i)Vocational Rehabilitation Counselors. Trained counselors, whose task is to identify,
generally through comprehensive testing, those transferable skills, which will help restore
the patient to the work force. Tests can include the Crawford Small Parts Test, the
Bennett Hand Tool Test, the Purdue Peg Board Test, the Wrest Packaging Test, various
motor coordination tests, manual dexterity test, form perception test, problem solving
test, visual speed and accuracy test, verbal comprehension test, and weight lifting and
carrying test. Victims of traumatic brain injury face almost insurmountable challenges to
job re-entry. Vocational rehabilitation counselors are key to their re-entry to the work

(j) Rehabilitation Case Manager. Generally a rehabilitation case specialists" job is to
coordinate the goals of the patient and patient's family. The case manager coordinates
rehabilitative staff and serves as an advocate for the patient. Case managers" work
directly with the family and often times deal with the intricacies of insurance and funding
for treatment.

 Organic Brain Injury and/or Post-Traumatic
              Stress Disorder
Emotional distress following a traumatic brain injury can be both real and debilitating.
Often times, severe emotional distress will mimic many of the characteristics of organic
brain dysfunction. It is the treatment that differs in each case, however.

In the litigation setting, it is common for insurance companies, and their lawyers, to
contend that the dysfunction and deficits experienced by the victim did not result from
any trauma sustained, but rather from pre-existing emotional difficulties. So standard is
this defense that it is encountered in virtually all cases of "mild" traumatic brain injury.
Therefore, for purposes of treatment, and in order to prevail over unmeritorious defenses,
it is important to understand the distinction between an organic brain injury and a
debilitating emotional injury.

(a)Post-Traumatic Stress Syndrome. Perhaps the most common emotional injury
following trauma is that of post-traumatic stress disorder (PTSD). The most
comprehensive definitions of PTSD can be found in the Diagnostic and Statistical
Manual – IV (DSM-IV). Therein, PTSD is defined as follows:

"The essential feature of post-traumatic distress disorder is the development of
characteristic symptoms following exposure to an extreme traumatic stressor involving
direct personal experience of an event that involves actual or threatened death or serious
injury, or other threat to one's physical integrity; or witnessing an event that involves
death, injury or a threat to the physical integrity of another person; or learning about
unexpected or violent death, serious harm, or threat of death or injury experienced by a
family member or other close associate. The person's response to the event must involve
intense fear, helplessness, or horror (or in children, the response must involve
disorganized or agitated behavior). The characteristic symptoms resulting from the
exposure to the extreme trauma include persistent re-experiencing of the traumatic event,
persistent avoidance of stimuli associated with the trauma and numbing of general
responsiveness, and persistent symptoms of increased arousal. The full symptom picture
must be present for more than one month, and the disturbance must cause clinically
significant distress or impairment in social, occupational, or other important areas of

Onset and duration of post-traumatic stress disorder have been classified into three
general areas: (1) Acute – when the duration of symptoms is less than three months; (2)
Chronic – when the symptoms last three months or longer; and (3) With Delayed Onset –
where at least six months have past between the traumatic event and the onset of

The traumatic events found sufficient to give rise to PTSD are not insignificant. These
events include, but are not limited to, military combat, violent personal assault (sexual
assault, physical attack, robbery, mugging), being kidnapped, being taken hostage,
terrorist attack, torture, and severe automobile accidents or other life threatening events.

Victims of PTSD often re-experience the traumatic event in various ways. Many times,
the victim has recurrent and intrusive recollections of the event or recurrent distressing
dreams during which the event is replayed. In certain rare instances, victims actually
experience dissociative states that last from a few seconds to several hours, or even days,
during which components of the event are relived and the person behaves as though
experiencing the event at the moment.

Avoidance is common for victims with PTSD. Victims tend to avoid anything associated
with the trauma, making a conscious effort to avoid thinking about, experiencing feelings
related to, or even talking about the traumatic event. Amnesia may even develop for some
or all aspects of the trauma. Victims of PTSD often times become "numb" experiencing
"emotional anesthesia" identified by decreased responsiveness to the external world.

Since the development of PTSD can be influenced by a victim's previous history, such as
childhood upbringing, personality, pre-existing mental problems, etc., it is common for
insurance companies and their lawyers to methodically search for pre-existing stressors,
rather than the trauma itself, which could give rise to the claim. However, the severity,
duration, and proximity of a victim's exposure to the traumatic event tend to be the most
important factors affecting the likelihood of developing this disorder. Accordingly,

competent neuropsychologists must spend considerable time analyzing all aspects of a
victim's experience before diagnosis.

(b)Organic Brain Injury. The Diagnostic and Statistical Manual – IV (DSM IV)
describes underlying organic injury as "dementia" due to head trauma. DSM IV defines
dementia due to head trauma as follows:

"Dementia Due to Head Trauma: The essential feature of Dementia Due to Head Trauma
is the presence of a dementia that is judged to be the direct pathopsysiological
consequence of head trauma. The degree and type of cognitive impairments or behavioral
disturbances depend upon the location and the extent of the brain injury. Post-traumatic
amnesia is frequently present, along with persisting memory impairment. A variety of
other behavioral symptoms may be evident, with or without the presence of motor or
sensory deficits. These symptoms include aphasia, attentional problems, irritability,
anxiety, depression or affective lability, apathy, increased aggression, or other changes in
personality * * *.”

In distinguishing PTSD from organic brain dysfunction, the neuropsychological
assessment becomes key. Through neuropsychological assessment cognitive abilities are
typically evaluated through a variety of testing. Since the criteria for diagnosis of
dementia requires impairment in "occupational" or "social functioning", and since there
must be a "decline from a previously higher level of functioning", neuropsychological
assessment greatly aids in the diagnostic process.

Generally, the cause of PTSD is thought to be functional or psychologically based. In
contrast, the cause for organic brain injury involves an actual change in the brain tissue

Treatment modalities differ markedly between the two. PTSD is commonly treated
through psychotherapy or through the use of medications to control anxiety and stress.
Depending upon the pre-existing characteristics of the individual, treatment for PTSD can
be prolonged and the progression gradual.

In contrast, maximum recovery from organically based brain injury, at least in terms of
thinking skills, typically occurs soon after the event in question, with gradual recovery
continuing throughout the first year to two years post-injury. Although technology
changes with each day, treating cognitive problems due to brain tissue changes with
medications has not proved highly fruitful thus far.

Perhaps the easiest manner of determining whether a particular victim is suffering from
PTSD – related symptoms only, versus organically based brain impairments involves
analyzing the overall pattern of neuropsychological assessment results. For example, if
the victim demonstrates problems with motor or sensory abilities isolated on one side of
the body (or other abilities governed by one hemisphere of the brain), such injuries are
more likely to be the result of actual organic brain damage than due to interference in
efficiency of thinking due to PTSD or other emotional distress.

The problem is often times not nearly so clear. Making matters worse, a victim may be
experiencing both PTSD and organic brain injury. In these cases, a synergistic result can
occur heightening dysfunction both in everyday life and on formal testing.

What must be recognized is that deficits can result from either organic brain injury or
post-traumatic stress syndrome. Neuropsychological assessment can do much to identify
the etiology of the deficits thereby allowing prompt treatment to ensue.

              Economic Losses in TBI Cases:
If you or a family member has sustained a traumatic brain injury, the chances are you
already have first hand experience of the overwhelming financial burden that these
injuries cause.

The following two case scenarios demonstrate damages sustained in a so-called "mild"
traumatic brain injury case, as well as a “moderate” to “severe” traumatic brain injury

Case No. 1:

A seventeen-year-old young lady is driving home from her evening class at a local
college when a car operated by another individual swerves across the center divider and
hits her straight on. She is evacuated by helicopter to the closest trauma hospital
whereupon a craniotomy is performed in order to release the pressure resulting from
multiple subdural hematomas. Additionally, as a result of spinal cord injury, the young
lady is rendered quadriplegic. The catastrophic injuries are apparent to all. The victim's
brain damage renders her a functional five-year-old in mental development. She is fed
through a gastrostomy, and will require attendant care the rest of her life.

Case No. 2:

A forty-two-year-old working mother of three is stopped before a crosswalk allowing an
elderly pedestrian to cross the street with her walker when her car is suddenly and
unexpectedly rear-ended. She keeps her foot on the brake in order her vehicle is not
pushed into the crosswalk thereby striking the pedestrian. The force of impact appears to
have been fairly minor. There is approximately $1,200 damage done to her car. She does
not lose consciousness. Other than a diagnosed cervical "strain", CT scans and other
neurologic testing are without adverse finding. Within several months, however,
thevictim's family notices a marked change. She expressed difficulty with attention and
concentration and ultimately loses her job. Her life spirals in denial, confusion and
discomposure. Finally, a treating health care provider concedes that she sustained a so-
called "mild" traumatic brain injury.

The above two case scenarios are a mixture of facts involved in actual cases brought
within the court system in the State of California. The effects of brain injury were

profound on both victims, although due to the extent of those injuries, their damages were
somewhat different.

In a case involving catastrophic injury, the failure to obtain adequate compensation will
deprive the victim of the very funds he/she may need in order to survive. Often times, and
especially where the victim's injury dictates on-going medical care, the future economic
loss may be staggering.

Contrast the catastrophic injury case with a "mild" TBI case. Often overlooked or
misunderstood, a case involving so-called "mild" traumatic brain injury, with
corresponding cognitive deficits, will cause a devastating impact on the vocational
abilities of the victim, not to mention the impairment to quality of life.

Perplexity and distractibility are among the most common problems associated with brain
injury. Any cognitive deficit, including impairment to attention and concentration, will
have a devastating impact on an individual's ability to work and perform properly on the
job. Necessarily, the quality of life is deeply affected.

Areas of financial responsibility will generally fall into the following categories: (1) past,
present and future medical bills; and (2) past, present and future lost wages and earning
capacity. Obviously, the victim has also sustained compensable damages relating to pain
and suffering and emotional distress, although those damages are not discussed herein.

(a) Past, Present, Future Medical Expense. The good news is that even if you are
without insurance, when you are transported from an accident scene, or place of injury, to
a trauma facility, you will not be turned away. Even comatose individuals without
insurance will initially be treated by a trauma facility. However, the length of treatment,
quality of treatment and treatment options may be curtailed in individuals without
appropriate coverage.

If another person's negligent or intentional acts cause the infliction of traumatic brain
injury, there is no reason why that individual should not be held responsible for payment
of your medical expenses. After all, if your own insurance is not sufficient to cover the
losses, then the taxpayers will be left with the burden of funding whatever treatment you
receive. The allocation of financial burden between the taxpayers and a negligent or
intentionally wrongful actor should be an easy decision.

To give you an idea of the staggering health care costs involved in a typical catastrophic
case, once again turn to Case Scenario No. 1, above. In a 1995 case, proceeding to trial in
California, the health care costs of a spastic quadriplegic brain injured young lady were
estimated at $106,000 per year through age 45 and then, when her parents die the costs
were estimated to increase to $303,000 per year. The total future lifetime costs, assuming
a below historically based medical inflation rate of 5%, is over $166,000,000. When
reduced to present cash value (using a historic U.S. Government bond rate), the cost is
still $14,000,000.

Obviously medical expenses incurred in the "mild" traumatic brain injury case are
considerably less. Life care plans developed for victims of "mild" traumatic brain injury
do not typically include ongoing orthopedic care, ongoing neurologic care, round the
clock therapist care, and other expenses more commonly required in the catastrophic
case. However, emergency room bills were likely incurred, and they are never cheap.
Radiological studies, including CT scans or MRI may have been ordered. If properly
followed, a neuropsychological assessment has been incurred, and rehabilitative training
follows. With today's health care costs, the price tag for such treatment is not

(b) Past, Present, Future Lost Wages/Impairment to Earning Capacity. In a
catastrophic injury case, the victim may never be able to hold a job again. Where the
victim is an adult parent, children and other dependents are left without any meaningful
source of support. Obviously, a life is shattered. The loss represents the entire earning
capacity of that adult from the time of injury through his/her work life expectancy. Often
times this amounts to over a million dollars even when relegated to present value.

In a case involving "mild" traumatic brain injury, earning capacity is also dramatically
impaired. Virtually all tasks performed in the vocational setting require concentration and
attention. Where a victim of mild traumatic brain injury has incurred attention and
concentration deficits, job performance is adversely affected or outright prohibited. In
many instances, the victim will require complete vocational rehabilitation training.
Simply put, the victim will be unable to return to his/her former line of work. Obviously,
chances for job advancement are greatly curtailed.

(c) The Lawyers' Role in Presenting Damages. In the litigation arena, it is your
lawyer's job to present your damages in order you be compensated for your injuries. In
the catastrophic case, the presentation of such damage figures becomes an art unto itself.
Jury alienation is always a concern, even where such damage figures are reduced to
present value.

In the "mild" TBI case, the jury must be made to understand that the cognitive deficits
affecting this outwardly-appearing "normal" human being will have a devastating impact
on that individual's ability to work and perform properly on the job.

In most instances, in addition to the testimony of treating physicians, life care plan
specialists, vocational rehabilitation specialists, and forensic economists will be
employed. By using these specialists, a jury is given the entire "needs" framework of the
traumatic brain injury victim. The care given in the past, and the reason for that care is
explained. Future care needs are likewise explained and all care costs are quantified and
relegated to present value. Similarly, earning capacity is explained and mitigating income
is taken into account. In all, the jury is left with a thorough understanding of the severity
of economic needs of a victim with traumatic brain injury.

                         Concussion in Sport
Concussion is defined as a traumatically induced alteration in mental status, not
necessarily with loss of consciousness, and is a common form of sports-related injury.

Traumatic brain injury is common in contact sports, with an estimated 250,000
concussions and an average of eight deaths due to head injuries occurring every year in
football alone. Twenty percent of football players suffer concussion during a single
football season, and some more than once. Repeated concussions can lead to brain
atrophy and cumulative neuropsychological deficits. Repeated concussions occurring
within a short period can be fatal.

Unfortunately, many physicians, coaches, athletes, and athletic trainers trivialize and
dismiss the dangerous possibility of a traumatic brain injury and allow a hurt young
person to continue to play.

Repeated concussions can pre-dispose the brain to vascular congestion from
autoregulatory dysfunction. The congestion leads to elevation of pressure and brain

Amnesia and confusion following an impact to the head are the hallmarks of concussion.
Amnesia associated with concussion can be instantaneous, or delayed by several minutes.
The delayed onset of amnesia or post-concussion symptoms demonstrates a pathological
process occurring gradually. This entire process is missed entirely if the athlete is
returned to the event too early.

The Colorado Medical Society has set forth guidelines for the management of
concussions in sports. Categorizing severity of concussion into three grades,
recommendations regarding treatment and continuing participation attach to each grade.
These guidelines are set forth below:

"Grade No. 1: Confusion Without Amnesia, No Loss of Consciousness. Remove from
contest. Examine immediately and every five minutes for the development of amnesia or
post-concussive symptoms at rest and with exertion. Permit to return to contest if amnesia
does not appear and no symptoms appear for at least twenty minutes.

Grade No. 2: Confusion With Amnesia, No Loss of Consciousness. Remove from
contest and disallow return. Examine frequently for signs of evolving intercranial
pathology. Re-examine the next day. Permit return to practice after one full week without

Grade No. 3: Loss of Consciousness. Transport from field to nearest hospital by
ambulance (with cervical spine immobilization if indicated). Perform thoroughneurologic
evaluation emergently. Admit to hospital if signs of pathology are detected. If findings

are normal, instruct family for overnight observation. Permit return to practice only after
two full weeks without symptoms.

Prolonged unconsciousness, persistent mental status alterations, worsening post-
concussion symptoms, or abnormalities on neurologic examination require urgent
neurosurgical consultation or transfer to a trauma center."

The overwhelming concern is that those sustaining concussion during sports activity are
immediately and promptly treated. The risk of second impact syndrome is significant and
its consequences severe. In "second impact syndrome" the victim is thought to have
sustained a second concussion while still symptomatic from an earlier concussion. The
victim often suffers cerebral vascular congestion leading to malignant brain swelling and
marked increase in intercranial pressure. Brain swelling is many times difficult, if not
impossible, to control.

                     Choosing a TBI Lawyer
Few of us realize how pervasive the law is in our lives until we get into a dispute with
someone else. Then we are amazed to discover what a tangled web of law there is, and
how complex and endless the rules seem.

The threshold question in many situations involving the law is whether you can “do it
yourself” or whether you need a lawyer to advise you on your rights or handle the matter
for you completely.

While many “minor” disputes can adequately be handled without need of a lawyer –
using Small Claims Court or Alternative Dispute Resolution – if you, a friend, or loved
one sustained a catastrophic personal injury such as a traumatic brain injury, there can be
no question but that you are in need of the services of a competent lawyer.

Unfortunately, we live in a day and time where millions of dollars have been spent
persuading the general public (prospective jurors) that should an injured victim exercise
their fundamental constitutional right by bringing suit, that individual is merely adding to
an already “sue happy” society. Nothing could be further from the truth.

Where a lawsuit is not pursued, unless the injured victim is independently wealthy, the
taxpayers will bear the brunt of financial responsibility. Indeed, in catastrophic cases the
victim may end up institutionalized unless sufficient funds are secured in order to meet
the victim’s medical and support needs.

Complicating matters further, many victims of traumatic brain injury, especially mild
traumatic brain injury, are in a state of denial regarding the profound impact of the injury
itself. While victims of “mild” TBI have not sustained the “catastrophic” injuries, which
may cause an individual to be institutionalized, they have nonetheless sustained injuries

which will have a significant impact on their vocational capabilities. In denial, job after
job is lost.

Combining denial with the current disfavor regarding lawsuits may very well prove to be
a recipe for disaster for the injured individual. Only a lawyer can assess the “legal health”
of the injured victim – by investigating the facts, researching the latest developments in
the law, applying his or her legal training and experience, and then advising the victim of
his/her alternatives. A good lawyer can spot the “jagged rocks” that may lie below the
waters of a seemingly simple dispute and can help the victim plan a course of action to
avoid them.

The sad truth is, however, that all lawyers are not created equal. It is a very sad fact of
traumatic brain injury life that many survivors will not receive adequate recompense for
their injury because their lawyer did not have enough experience to know how to analyze,
prepare and present a legitimate claim for damages. Many times, the blame is directly
traceable to the attorney who is not forthright in the first place regarding his/her lack of
experience handling cases involving traumatic brain injury. Time after time the
inadequate result rests with the attorney who did not understand the seriousness of the
injury simply because of its “invisible” nature.

Unfortunately, even where an injured victim has overcome denial, and has further
overcome the social stigmas associated with bringing a lawsuit, s/he may nonetheless
experience further “hurt” due to an association with a lawyer having no idea how to
properly present claims involving traumatic brain injury. BEWARE: EDUCATION,

Most firms represent injured victims on a contingent fee arrangement. This means that we
do not receive any fee or payment unless money is recovered on behalf of the injured
person, and then the attorney fee is paid as a percentage of the amount recovered.

       Contingency Fee: A contingency fee is a charge for legal services that is
       contingent on the lawyer winning the case. If the lawyer does not win the
       case, the client owes no fee. The contingent fee arrangement allows
       individuals and businesses that could otherwise not afford legal
       representation to hire experienced and competent counsel. Simply put, a
       contingent fee levels the "playing field" in the legal arena. In an era of
       increasing legal complexity and escalating hourly professional fees ($200
       to $450 per hour in metropolitan law firms) many clients do not have the
       substantial funds required in order to pay counsel to prosecute their
       meritorious case.

What this means is that you have the absolute ability to hire the most qualified attorney
specializing in representing individuals sustaining traumatic brain injury. Through the use
of the Contingent Fee Agreement, and given that there are excellent attorneys around the
United States willing to advance the expenses in connection with the prosecution of a

TBI case, injured victims have the ability to hire the most qualified attorneys and need
not settle for or accept inexperienced attorneys to handle their cases.

Through the contingency fee, you have the ability to hire a qualified attorney in a crucial
situation, and you need not pay that attorney unless they successfully perform. This is a
powerful position to be in. Do not underestimate your position. After all, the results of
your lawsuit will have an important and long-term impact on your quality of life. Just as
you would not rush to purchase any item of consumer goods, nor should you hastily
choose a lawyer to represent you.

The firm should be: committed to handling claims of individuals sustaining traumatic
brain injury; committed to spending the time with you and your family members to gain
a deep understanding for each and every way the injury has affected your life; committed
to spend the necessary time in order you understand your rights in the progress of your
case. The firms staff should be committed to trying to make your life easier, and put you
in contact with support groups and treating doctors as your case may require.

Given the importance of your choice of counsel, you should be prepared to meaningfully
question prospective lawyers in order to ascertain his or her qualifications to handle your
case. For example, you should determine how many TBI cases that lawyer has been
involved in as principal attorney during the last three to five years. You should determine
what percentage of the lawyer’s practice is devoted to cases involving TBI. You should
not hesitate to inquire of the settlements/verdicts obtained by the lawyer on TBI cases.
(This should be done with a recognition that every case is different.)

You want to make sure that the lawyer is current. In this regard, ask the lawyer how
many seminars or conferences s/he has attended over the past several years involving TBI
issues. Review that lawyer’s website, or ask the lawyer to provide you with any articles
written over the past three years involving any aspect of TBI.

You are about to embark on one of the most important decisions of your life, to wit: The
choice of the right lawyer to represent you. You are armed with a powerful tool, the
Contingency Fee Agreement. This Agreement allows you to retain experienced counsel
without having to pay hundreds of dollars per hour up front. Please, do not make your
decision cavalierly. Ensure that you are comfortable with the counsel of your choice.
Ensure that counsel has the confidence and experience to properly handle your case. The
path is a difficult one, and the choice of counsel can make all the difference in the world.

          Help for Families and Care Givers
"My husband used to be so calm. But after his injury, he started to explode over the
littlest things. He didn't even know he had changed."

When someone close to you has sustained a TBI, it can be hard to know how best to help.
They may say that they are "fine", but you can tell from how they are acting that
something has changed.

If you notice that your family member or friend has some of the classic symptoms, that
are getting worse, or not getting better, talk to them and their doctor about getting help.
You might also want to talk to people who have experienced what you are going through.
Your State Brain Injury Association may be able to help, as may the National Brain
Injury Association. The Brain Injury Association of Oregon has an information and
referral line at (800)544-5243.

You can reach BIA National office by calling the toll free BIA National help line at (800)
444-6443. You can also get information through the National BIA website at Additional information about brain injury is available through the
Center for Disease Control & Prevention (CDC) website at

        Traumatic Brain Injury Resources
Brain Injury Association of Oregon
Provides information on prevention, treatment, and rehab, resources and support groups,
and helps families in their search for facilities and support for loved ones who have
sustained brain injury.

American Academy of Neurology

Brain Injury Association
Provides information on prevention, treatment, and rehab, resources and support.

Brain Injury Association of Queensland

An extensive collection of resources, from Attention & Concentration to Neurological
Physiotherapy, all available for download in .pdf format.

Brain Injury Association of Texas
Helps families in their search for facilities and support for loved ones who have sustained
brain injury.

Brain Injury Ring

Homepages of brain injury survivors, caregivers, friends, family and BI resources.

Brain Injury Society
A quick response service to all brain injured individuals.

CDC Resource Page - Traumatic Head Injury
Many resources, statistics and educational materials are available here.

CDC Heads Up - Head Injury Resource packet for physicians
The CDC, working with a number of partners, has developed a new physician tool kit to
improve clinical diagnosis and management of MTBI.

Coma Recovery Association
A non-profit organization for coma and brain injury survivors, family members, etc.

Head Injury Outline
Guide to head injury facts.

Headway National Head Injuries Association.

Life With TBI
Resource-filled site that centers on surviving traumatic brain injury. Dan Windheim
shares his own story of TBI through writings and poetry, and offers a place for feedback,
and has a question and answer section to deal with the more severe issues of TBI.

National Resource Center for TBI
From Virginia Commonwealth University, this resource center provides relevant,
practical information for professionals, persons with brain injury and family members.
Site provides resources, chat room, ideas and gives information on training and

Neurological Surgeons Association
Neurosurgical information online.

Neurology Journal

Oxford University Press journals.

Neuroscience Center
Source of clinical research information for professional involved in the neurosciences.
find news, research and software reviews.

Neurotrauma-Law Nexus
A guide to understanding the legal system's role in brain injury and spinal cord injury.

Office of Special Education and Rehabilitative Services
OSERS provides a wide array of support to parents and individuals, school districts and
states in the areas of special education, vocational rehabilitation and research.

Ohio Valley Center-Brain Injury and Rehabilitation Center
Through research and education, this center develops programs to improve the quality of
life of persons who experience traumatic brain injury.

SW Brain Injury Rehab Service
Injury rehabilitation server that provides assistance to survivors of brain injury.
Provides information, resources, networking and adovacy services to persons with brain
injury and their families.

TBI Homepage
Chatrooms, message boards, stories and poems written by survivors and caregivers.

Traumatic Brain Injury Resource Guide
TBI resource guide, with information about brain injury and rehabilitation, illustrations
and other resources


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