WHAT CLIENT'S ATTORNEY NEEDS TO KNOW TO HANDLE TBI CASES

 David L. Goldin, 2016

 

 

How Does Attorney's Brain Best Explain Client's Brain Injuries To Jurors' Brains?

 

Part One:  How the Brain Works.

 

This article applies to all types of traumatic brain injury (TBI), mild, moderate, and severe. The existence of brain injuries is usually apparent in moderate and severe TBI, but the extent of damage caused by the trauma is not.  In mild TBI (mTBI), neither the brain injury itself, nor the extent of damage to the brain, is clear. To get justice (fair compensation for the harm), an intimate knowledge of the brain is of singular importance. Handling a brain injury case without knowing about the brain is like trying to fix a clock without knowing what makes it tick. 

 

This article assumes someone other than the client is at fault; liability is not at issue.

 

The article is largely in outline form and is divided into two parts.  Part One describes brain anatomy, and how the brain works before and after undergoing trauma.  Part Two addresses how to handle brain injury litigation (using California law).  mTBI can be hard to prove, and Part Two focuses on that.

 

There is so much material on the Internet, a lawyer's view (mine) of how the brain works is clearly extraneous. Nonetheless, having written numerous articles about the brain, the decision to provide my thoughts about how the brain works is my attempt to consolidate much of that information in an updated and current report.

 

This article, like the others, is intended to provide information and support to survivors of brain injury, and their families and loved ones.  Brain injury is scary. If you feel frightened by your invisible pain and disability, if you and others feel you are a different person from the one you have lived with all your life (yourself), this is a frequent outcome of the lasting effects of brain injury.  If you are part of the miserable minority who suffer long-term consequences from a concussion, or mild TBI, you are not alone. 

 

It is my hope you and your attorney benefit from this article in handling your brain injury case together.

 

If you would like to talk with me, please call or email my office.

 

  1. Facts of Trauma

    1. Motor vehicle accident (MVA), slip and fall, assault, product defect, medical malpractice, etc

    2. Forces involved; effect on brain.

  1. Linear vs. rotational impact. Mechanism of brain injury (B.I.) forces on the brain; motion/vibration of brain within the skull.

  2. Head in vice; snow globe to illustrate differences of linear and rotational forces. Purely linear forces can't cause a concussion. See, Stanford Magazine.

  3. Consistency of brain tissue avocado, jello, or any other gelatinous substance.

  4. Grey and white matter different densities; damage at intersection.

  5. Whiplash (coup-contrecoup) causing brain injuries (B.I), with or without hitting head.

  6. Biomechanical expert re: testing standards measuring the effect of forces on the brain.

  1. How does the brain do what it does? See, The Human Memory, for an excellent detailed description of how our brains work, focusing on memory.

  1. Interaction of neurons in brain. All senses (seeing, hearing, touching, smelling, and tasting), enter the brain as spatial and temporal patterns of electro-chemical activity. This sequence of patterns is all the brain knows. There is no image, sound, touch, smell, or taste in the brain, and the brain itself does not experience pain.

  2. In addition to our senses, the brain controls all of our movements, emotions, feelings, thoughts, and cognition. There are one hundred billion or so neurons in each of our brains, and each neuron has connections (synapses) with from five thousand to two hundred thousand other neurons (depending on who is counting). Putting that in context, there are at least five hundred trillion connections in the human brain. There are more than ten thousand types of neurons.

  3. Cells that fire together, wire together. Certain neurotransmitters are excititory, others are inhibitory, and still others are both. So long as the pattern of neuronal activity is taking place, the axon fires when functionally related neurons connect together to form neuro-networks (sequences of related patterns). These connections are not static and may change over time. The brain slightly rewires itself with each new experience and each remembered fact or event.  See, The Human Memory.

  4. Cortex (grey matter) consists of six layers, in hierarchical form, and has the thickness of about six business cards, and flattened out, the size of an unfolded dinner napkin.

  5. Myelin (white matter) insulates axons, and facilitates electrical signaling of patterns in brain.

  6. Selective parts of the brain (and primary functions): thalamus (relays signals from all senses, except smell, to different areas in the cortex for storage as memories); basal ganglia (clusters of nerve cells surrounding the thalamus initiate and integrate movements); hippocampus (vital for storage of memories, see, HM, the Man with No Memory.); amygdala (limbic area - source of emotions); corpus colossum (divides brain into left and right spheres); Broca's area (speech); Weirnicke's area (understand speech); and frontal lobes (executive functions and control of emotions).

  7. Central role of executive functions (judgment, decision making, multi-tasking, control of emotions, speed of processing, etc.). Cf., conductor of orchestra. Phineas Gage is history's first known case suggesting a tie between brain trauma to frontal lobes and personality changes (act like different person. See, Phineas Gage book.

  8. Limbic area, which includes amygdala, is the emotional core of the brain: fear, anger, love, empathy, and other emotions reside here. Emotion strengthens memories; eg., where were you when you first learned about 9-11?

  9. Lobes of cerebral cortex (frontal, temporal, parietal and occipital). Which senses primarily are located in which lobes? What happens in association areas of cortex? Where are memories found in the brain?  How do you explain this to a jury?

  10. Left and right sides of brain. See, e.g., Drawing from the Right Side of the Brain. There is a crossover from left to right, and vice versa, of all communications to and from the brain. All of our senses, movements and cognition on the left side of the brain come from and go to the right side of the body, and vice versa. Most structures in the brain are bilateral.

  11. Neurotransmitters and synapses-know the gap. See, here.

  12. Inputs to brain from all of the senses are stored in the synapses in different regions of the cortex. These inputs are retrieved as memories through feedback of the stored information. Memories allow us to make predictions about the world which, in the opinion of some, is the core of intelligence. There are at least as many feedback connections in the brain as there are feedforward connections. See, On Intelligence.  Jeff Hawkins, 2004.

  13. A neuron collects inputs from its synapses, and combines these inputs together to decide when to output a spike to other neurons. A typical neuron can do this and reset itself in about five milliseconds (5 ms) or around two hundred times per second. Computers by comparison can compute billions of operations each second. Why can't computers do many basic operations as well as we do (e.g., catch a ball)? Computers operate by computing enormous amounts of data to find an exact match, whereas our brains use memories already stored in the brain, and automatically retrieve the memories when similar information is available. See, On Intelligence.

  14. Evolution of the brain. What several billion years can do.

  15. Brain is 2-3% of body weight, and requires 25- 30% of blood in body.

  16. Neuroplasticity has been proven to occur in the hippocampus by showing the development of new neurons in this area of the brain. Cf., migration of cells in cerebral cortex of developing baby's brain. Helen Keller's senses were critically impacted (blind and deaf) yet she gradually came to perceive the world the same as others with all their senses. How did her brain do this?

  17. How does the location of damage in the brain affect functioning? Which brain areas control what functions? In Spectre, the most recent Bond movie, the villain tries in vain to find where in Bond's brain a specific function is located.

  18. What is the definition of the following terms relating to damage to the brain? Agnosia; agraphia; alexia; amnesia; anosmia; anoxia; aphasia; dysarthria; dysphagia. See, Google (or another search engine) for listing of medical dictionaries.

  19. The brain largely remains a mystery. Sequencing DNA is simple compared to understanding the brain. See, "You are Your Brain.

  20. Before reading further, you may want to watch some of the brain's actions and operations, discussed above. See, the Brain Tour link of the Alzheimer's Association.