Recovering Compensation for Pediatric Traumatic Brain Injury(1)

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					                                    Recovering Compensation for Pediatric
                                                   Traumatic Brain Injury
                                                      TBI Challenge! (Vol.4, No. 1, 2000)
                                   By Roberta Clark Robinson, Esq. & Patrick E. Carr, Esq.


Childhood often is thought of as a wonder-filled time of life riddled with new curiosities to
explore, puzzles to solve and perpetual learning. Like the ocean, children are usually in constant
motion, sometimes stormy and sometimes placid, but always changing, moving and traveling
towards the horizon. This process of growing into a unique individual is filled with enough
obstacles to overcome but an encounter with a brain injury can cause devastating setbacks during
the growth process.

While the crisis of a traumatic brain injury will affect a child throughout his/her development,
early decisions made by the family will enhance or detract from future outcomes. The quality of
life the child can obtain will be determined by factors including whether a mild brain injury is
detected and treated, appropriate rehabilitation is offered in the course of treatment, school and
community integration is successful and competent professionals are involved early enough to
assist with these issues. Because funding is often the key factor that determines whether these
goals are accomplished, the parents should consult with an attorney to determine what resources
may be available.

Taking Early Action: Dealing With Legal Concerns

Selecting an Attorney

Early intervention by an attorney who focuses his/her personal injury practice on helping
individuals with brain injury will aid the family in knowing whether they have a claim, what
their legal rights are and if there may be financial assistance available for rehabilitation. A
competent attorney who focuses his/her practice on neurologic injury cases also will be able to
assist the family in locating medical facilities and doctors who specialize in pediatric neurologic
rehabilitation. Most importantly, early intervention by a competent attorney will ensure that
witnesses, evidence of the incident and resulting injuries are preserved while memories are

Many attorneys who focus their practice on neurologic personal injury litigation are involved
with the Brain Injury Association. Each year, BIA publishes a National Directory of Brain Injury
Rehabilitation Services that also includes information by state regarding attorneys who have
experience with brain injury. (The directory is $16 and can be ordered by calling 800-321-7037.)
Additionally, local rehabilitation facilities and family support groups often will be aware of
attorneys who practice in their respective areas.

              Brain Injury Association of America   .   .   1.800.444.6443
The initial interview is the time to determine if the attorney does indeed have substantial
experience in dealing with TBI cases. The attorney should be questioned on such items as:

   §   Has the attorney previously settled pediatric TBI cases?
   §   Does the attorney work with BIA and/or other associations and organizations in the field
       of brain injury?
   §   Has he/she attended any brain injury conferences?
   §   Has he/she ever spoken or written on TBI litigation?
   §   Are there any medical publications and/or information on TBI in the attorney's office?
   §   Has the attorney ever worked with a neuropsychologist, physiatrist or life care planner?
   §   Does he/she understand the impact of a pediatric TBI on the developmental process?

Estimating Expenses

Most attorneys offer a free initial consultation and will provide this to a prospective client before
a formal relationship has begun. If the client decides to hire an attorney, he/she usually can find
one who will represent him/her on a contingent fee basis; in other words, the attorney will collect
his/her compensation only if and when he/she recovers money for the client. Most attorneys
accept a percentage of the money they have obtained as a compensation for their fee. Expenses
spent preparing for trial, including filing fees, court reporter costs and expert witness fees, are
reimbursable from the settlement, relieving the family from any “up front” costs. The best
benefit of a contingent fee agreement is that the family can afford the most qualified attorney to
handle their child's case and the parents can afford to interview several attorneys before hiring


Guardianship is the legal relationship between a guardian and a ward, which gives the guardian
the right to act on behalf of the ward and make certain decisions for him/her. The guardian
usually has a duty to handle the ward's personal, legal and financial affairs, and must protect the
ward's welfare. Parents are considered by the Court to be the natural guardians of their children.
They do not need to file a petition with the Court requesting appointment as guardian unless the
child is incompetent as a result of his/her brain injury and then not until he/she reaches the age of

A guardian ad litem is someone independently appointed by the Court to represent the child's
interests when the natural parents cannot protect the interest of the injured child adequately.
Usually the guardian ad litem is appointed for the purpose of bringing a personal injury claim on
behalf of the child where the parents are either deceased, unavailable or were responsible for the
accident. An attorney can determine if the child needs a guardian ad litem.

               Brain Injury Association of America   .   .   1.800.444.6443
Statute of Limitations Concerns

Neurologic injury cases must be filed within a certain period of time or the person injured is
barred forever from bringing a claim to recover money damages for the injury. Because these
deadlines vary, depending on the facts of the case and the state law that applies, an attorney
should be consulted immediately to protect the person's right to monetary compensation.

Because minor children sometimes sustain injuries resulting in developmental delays and
learning disabilities that are not recognized immediately, most states provide that the child has
the right to file his/her own suit within a time specified by that state after the date of majority.
This provision protects the child's rights against an individual or company, but not the parents'
individual claims associated with their child's injury.

Another extremely important reason to consult an attorney as soon as possible after TBI is
because the above-mentioned deadlines do not apply when a government entity is involved.
Parents often are not aware of potential claims against schools, municipalities, counties or states
and the time deadlines for these cases are very strict. Because notice of the injury and potential
claim must be sent to the representative agency very soon after the injury is sustained, competent
counsel must evaluate the possibility of such a claim very quickly.

Understanding The Impact Of TBI On The Developmental
When litigating the pediatric brain injury case, the attorney must take into account the
developmental process and the impact of a brain injury on childhood development. At first, it
may seem that the child has fully recovered from a brain injury; however, many times the
impacts of damage to the brain may not show up until later in the developmental process.
Because the child's brain is constantly developing and children only are expected to function at
age-appropriate levels, the damage to a particular area of the brain may not manifest until the
child is ready to engage in that age-appropriate skill (Levin et al., 1989).

Thorough evaluation of the child's brain injury should allow time for the assessment of cognitive,
motor and behavioral problems that may arise as the child develops. These symptoms may
increase with growth but the cause of them will never be known if they are not thoroughly
investigated after the incident. The impact of these cognitive and motor impairments can be
devastating but the behavioral issues especially complicate return to normal functioning. If not
recognized as a residual impact of the initial injury, these issues can complicate accurate
diagnoses, treatment and social skill functioning later on in life.

               Brain Injury Association of America   .   .   1.800.444.6443
Children are uniquely vulnerable to a brain injury because they do not have the same life
experience or established level of cognitive functioning to draw upon that an adult has.
Arguably, young children may be considered more susceptible to brain injury than their adult
counterparts as an adult is relearning previously acquired skills while children are having to learn
new material with altered brain function (Kolb & Fantie, 1989).

After a mild brain injury, the child may appear to return to previous levels of functioning.
Settlement should not be attempted, however, until it is determined whether the child can acquire
and store new information adequately. If there is an interruption of the ability to acquire new
learning, then the child's knowledge base and future intellectual growth will be limited (Selz &
Wilson, 1989). Not only will academic achievement be affected by the interruption of new
learning, but eventually, vocational potential also will be compromised.

Identifying And Documenting TBI In Children
Identifying the existence of deficits due to mild brain injury in young children is extremely
difficult; however, it is the first step in determining monetary compensation. Often, medical
records document the existence of an initial injury to the child but they do not document the
residual impacts of the injury. The young child cannot describe something like memory loss or
may be unable to speak yet. Neuropsychological sequelae such as cognitive, behavioral and
motor deficits that commonly occur with post-concussive syndrome are therefore difficult to
assess with younger children. The best course of legal case management with a very young child
who has sustained a mild brain injury is to closely monitor the developmental process after the

Finding Appropriate Diagnostic Measures For Children

Finding the appropriate diagnostic measures to document the residual impact of a brain injury in
a child is difficult because most diagnostic measures are more appropriate for adult
neurobehavioral functioning. Measures that commonly are used, however, are
neuropsychological testing, the Glasgow Coma Scale, assessment of post-traumatic amnesia and
developmental and educational assessments. There are experts who specifically work with the
neurobehavioral consequences of pediatric TBI and know which combination of assessments to

Testing by a neuropsychologist who is comfortable working with children is beneficial from age
six and beyond. The neuropsychological evaluation is a comprehensive examination which
includes obtaining a history, interviewing the parents and administering several different tests
designed to measure the child's intellectual, cognitive, behavioral and emotional functioning. The
use of these tests enables the neuropsychologist to identify the deficits associated with the
underlying neurologic disorders (Sbordone, 1991).

              Brain Injury Association of America   .   .   1.800.444.6443
The Glasgow Coma Scale commonly used with adults may have to be modified in use with
young children, thus making it less precise. Because the scale measures changes in the levels of
consciousness through documentation of eye opening and motor responses, it is assumed that the
person with an injury has acquired language development. The scale, therefore, would have to be
modified for use with very young children. Despite these limitations, the Glasgow coma scale is
used widely in pediatric medicine (Michaud et al., 1993).

The identification of memory loss as an assessment of the existence of post-traumatic amnesia
also requires the development of language skills. If a child has not developed language skills,
then it will be difficult to test memory.

A qualified psychologist trained to administer developmental assessments should monitor any
delays in the young child's attainment of normal developmental milestones after a brain injury.
The psychologist will be able to evaluate thoroughly the attainment of normal developmental
milestones in cognitive, language, social and motor skills. They also will be able to observe and
thoroughly document behavioral or emotional disturbances that may be associated with early
TBI. Pediatricians also often document gross deviations from the normal.

Because children are in a constant process of development and each child's brain injury is so
unique, a combination of assessments often is more useful in documenting the impacts of the
injury. Along with the neuropsychological assessment, educational and development assessments
should be included in the evaluation process. This flexible approach tends to result in a more
complete evaluation of neuropsychological strengths and weaknesses (Telzrow, 1993).

When evaluating what the child's case is worth in terms of monetary compensation, it is
important to consider the long-term cognitive, social, motor, emotional and behavioral
implications of a pediatric brain injury. As mentioned earlier, the crisis of a brain injury may
impact a child developmentally for years to come. Sometimes, development of certain skills will
be delayed and sometimes they will never develop. Other times, the child will have to
compensate in other ways for a non-acquired skill.

Behavioral disturbances frequently develop after a child sustains a traumatic brain injury. The
child's ability to deal adequately with frustration or anxiety may be affected. Often, the child
exhibits aggression and poor control of anger. Poor impulse control and judgment also are
documented sometimes after TBI. Inappropriate behavior for a certain social context, therefore,
often is exhibited (Michaud et al., 1993).

After TBI, poor memory and concentration often impair a child's cognitive functioning. These
and other residual impairments can diminish the child's ability to learn new information, develop
abstract reasoning and develop competent written and verbal language skills. Fine motor
functioning impairments also may affect the child's development of written language skills.
Balance, gait and gross motor functioning deficits impact the child's physical performance
overall. When evaluating damages based on these deficits, the attorney must consider how motor
functioning deficits will offset the child's ability to participate in sports, enjoy recreational
activities and develop physical strength and coordination.

              Brain Injury Association of America   .   .   1.800.444.6443
Increased seizure risk is another consequence of TBI that the child should be compensated for.
Often, the medical record will reveal that the child experienced some type of seizure during acute
hospitalization or rehabilitation. Where the medical record is void of such an occurrence,
however, the neurologist should be questioned regarding the injury and the likelihood of seizures
occurring at a later date. The risk of seizures occurring increases when the client has sustained
extensive skull fractures or a hematoma (Bigur, 1988). The actual development of post-traumatic
seizures may constitute permanent injury to the client and the side effects of treatment for the
seizures can constitute further damages.

Because the child's self-concept is in the process of developing, a brain injury seriously can
disrupt the development of healthy self-esteem. The child especially may be susceptible to
emotional frustration and depression when coping with the loss of cognitive and physical
function. Further, these setbacks can complicate successful return to academic achievement
and/or vocational opportunities (McClean et al., 1993).

The occurrence of a brain injury in a child's life can delay and/or completely alter the course of
future academic development. Students sustaining moderate to severe TBIs most likely will
require the assistance of special education services. Advocates of students who have sustained a
TBI need to be aware, therefore, of the Individuals with Disabilities Education Act (IDEA),
providing free and appropriate public education for all children with disabilities.

IDEA covers children who are disabled in that their educational performance is affected
adversely and, therefore, they require the assistance of special education. More importantly,
IDEA specifically includes TBI within its definition of children with disabilities, and provides
special education that is of no cost to the child with a disability which conforms with an
individualized education program (IEP).

The IEP is a comprehensive written plan which must include statements on: 1) the child's current
level of educational performance, 2) annual goals, 3) what specific services are to be provided to
the child, 4) transitional services the child needs, 5) a projected initiation date and 6) an
anticipated length and duration of appropriate evaluation procedures. The IEP is a legally
enforceable document that holds the school district accountable to provide the services listed in
it. The IEP also is useful in determining how the injury has altered the student's academic
functioning. Parents should have their child's own independent physicians present documentation
supporting programs they request be included in the report.

Developing Evidence Of The Impact Of Pediatric Brain Injury

Evidence of mild pediatric brain injury often does not show up on x-rays, MRIs, CT scans or
EEG studies. Usually, there are no skull fractures or scars that provide visible evidence of a brain
injury. Yet even mild cognitive impairments can have a serious impact on the child's future
developmental progress. The attorney plays a key role in directing the parents to the medical
providers who will provide appropriate services for and the best evidence of pediatric brain

              Brain Injury Association of America   .   .   1.800.444.6443
In any brain injury case, the lawyer will need several key experts to present the client's case to
the jury. These medical experts are essential witnesses painting a picture for the jury of how the
brain injury has changed the client's life. Without these witnesses, the jury and the defense
counsel will be unable to see the impact of this invisible trauma. Evaluations and testimony by
neuropsychologists, physiatrists, psychiatrists, speech language pathologists and vocational and
life care planning specialists are essential. The value of the claim can be illustrated graphically
through an economist. Finally, an accident reconstructionist and a biomechanical engineering
expert may make or break the case.

Because of the unique nature of pediatric brain injury, additional experts will be required to
prove the impact of a brain injury on a child. Undoubtedly, the pediatrician already will be
involved in the case, but the attorney also may need to direct the family to other pediatric
specialists. The use of a developmental specialist will determine whether the jury understands the
impact of brain injury on the developmental process. The developmental specialist also will be
able to assist the attorney in knowing how the child is recovering and whether settlement should
be delayed. The other key witness in a pediatric neurologic injury case is the educational
specialist, who will be able to determine how the child's academic functioning has been altered.
With this information, the attorney will be able to determine possible changes in future
vocational opportunity.

Legal documentation of the child's change in academic performance should include an in-depth
review of prior school records and current educational assessments by a qualified educational
specialist. The records reviewed should include all standardized tests, yearly grades, behavior
reports and achievements recognized. This data also will be useful to the education specialist
when evaluating the results from current academic functioning tests. The specialist also may
want to interview teachers the student had before and after the brain injury, and observe the
student during a typical school day in order to thoroughly assess the case.


In order to ensure the best possible future for a child with brain injury, litigating the pediatric
neurologic injury case—though challenging—is a virtual necessity. Being an advocate for a child
requires an understanding of the difficulties in identifying and documenting the impacts of a
brain injury to the child. This requires an understanding of the developmental process itself and
how a brain injury can alter it. Furthermore, developing the evidence of a pediatric brain injury
requires a good working relationship with key medical experts who can assist the jury and
defense counsel in understanding how devastating this "silent epidemic" is. Finally, being a
child's advocate provides the rich opportunity to be a key player in enhancing the child's future
educational and vocational opportunities and quality of life.

              Brain Injury Association of America   .   .   1.800.444.6443
Patrick Carr, Esq. has more than 20 years of legal experience, including practices in product
liability, wrongful death and catastrophic, neurologic and personal injury litigation. Roberta
Robinson, Esq. combines more than 10 years experience in medical social work and case
management with her law practice to effectively document damages for individuals with
traumatic brain injury.

Bigur ED: Diagnostic Clinical Neuropsychology Review. Austin: University of Texas Press,
1988. Pg. 122.

Kolb B & Fantie B: Development of the child’s brain and behavior. In: Handbook of Clinical
Care Neuropsychology. C Reynolds & E Fletcher (Eds). New York: Janzen Plenum Press, 1989.
Pgs. 18 & 26.

Levin H, Eisenberg H & Benton AL: Mild Head Injury. New York: Oxford University Press,

McClean A, Dikmen S & Temkin N: Psychosocial recovery after head injury. Arch Phys Med
Rehab. 73:1041, 1993.

Michaud LJ, Duhaime AC & Batshaw M: Traumatic brain injury in children. The Pediatric
Clinics of North America. 40(3):557-561, 1993.

Sbordone R: Neuropsychology for the Attorney. Orlando: Paul M. Deutsch Press, 1991.

Selz M & Wilson S: Neuropsychological basis of common learning and behavior problems. In:
Handbook of Clinical Care Neuropsychology. C Reynolds & E Fletcher (Eds). New York:
Janzen Plenum Press, 1989. Pg. 132.

Telzrow CF: Neuropsychological applications of common educational and psychosocial tests.
The Pediatric Clinics of North America. 40(3):228, 1993.

Wilkening GN: Techniques of localization in child neuropsychology. In: Handbook of Clinical
Care Neuropsychology. C Reynolds & E Fletcher (Eds). New York: Janzen Plenum Press, 1989.

              Brain Injury Association of America   .   .   1.800.444.6443

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