Specializing in Personal Injury and Wrongful Death Litigation
 with Emphasis on Trauma to the Brain

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Recovery Of Damages For

Traumatic Injury To The Miraculous Brain
 

David L. Goldin, J.D., M.B.A.

© 2005-2016

 

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INTRODUCTION

The healthy brain is a miracle. It controls everything we do. The 100 billion or so nerve cells in the three pounds of flesh we call the brain direct all of our thoughts, feelings, movements, vision, hearing and memories. Injuries to the brain, even "mild" injury, may change who we are as a person. See "What is "Mild" Brain Injury?" Our brains are what make us human.

Recovery, however, from brain injury, is not a miraculous process. Rehabilitation, to the extent possible, requires hard work and multi-disciplinary approaches which may involve the fields of neurology, neuropsychology, psychiatry, behavioral medicine, orthopaedics, family medicine, pediatrics, physical medicine and rehabilitation, vocational rehabilitation, speech and hearing, physical therapy, occupational therapy, education therapy, social work, case management and life care planning. 

In those circumstances where brain injury is due to someone else￿s carelessness, whether from an accident, malpractice, product defect, or otherwise, it is most important to involve an experienced and caring lawyer at an early date. Recovery of fair compensation from those responsible for the harm may be necessary for rehabilitation and support of the survivor for the rest of his or her life. If the survivor has died, early retention of an attorney is important to establish fault and preserve the evidence.

BRAIN INJURY STATISTICS

Of the 1.4 million who sustain a traumatic brain injury (TBI) in the United States each year, 50,000 die, 235,000 are hospitalized, and 1.1 million are treated and released from an emergency department. The number of people with TBI who are not seen in an emergency department or who receive no care is unknown. The leading causes of TBI are falls (28%); motor vehicle-traffic crashes (20%); sports injuries and blows struck by/against (19%); and assaults (11%). Males are about 1.5 times as likely as females to sustain a TBI. African Americans have the highest death rate from TBI. It is estimated that in 1995 in the United States, the direct medical costs and indirect costs, such as lost productivity, of TBI, total $56.3 billion. It is estimated there are 2.5 million to 6.5 million individuals suffering life long impairments of physical, cognitive and psychosocial functioning as a result of brain injury. 

￿Mild￿ traumatic brain injury is significantly under diagnosed and the likely societal burden therefore is even greater. Although most people recover from mild traumatic brain injury, there is a ￿miserable minority￿ devastated by the effects of this injury. Each year approximately 70,000 to 90,000 suffer a traumatic brain injury resulting in long term, substantial loss of functioning.

The statistical detail is provided in the September, 2005, publication of the Center for Disease Control, ￿Facts About Traumatic Brain Injury,￿ and the publication of the National Institute of Health, ￿Rehabilitation of Persons with Traumatic Brain Injury.￿

ATTORNEY KNOWLEDGE OF BRAIN INJURY

The brain injury lawyer is a specialist who must have knowledge of the neurological, cognitive, behavioral and social consequences of mild, moderate and severe traumatic brain injury. That lawyer must know the architecture of the brain to clearly communicate the mechanism of injury and the harm resulting from it. The brain itself is divided into the forebrain, the midbrain and hindbrain. The forebrain consists primarily of the cerebrum and the structures hidden beneath it. The cerebrum itself is made up of the cerebral hemispheres and the diencephalon, consisting of the thalamus, which primarily relays messages within the brain, and the hypothalamus, which communicates with the autonomic nervous system.

The cerebral hemispheres consist of pairs of frontal, parietal, temporal, occipital and beneath them, limbic lobes. The cerebral hemispheres give the brain its unique shape, like a boxing glove, the left brain looking like a right glove and vice versa. (The left hemisphere appears in the logo at the top of the homepage of this website.) Some commentators have pointed out that Michelangelo￿s ￿Creation of Man￿ panel from the ceiling of the Sistine Chapel, painted in 1512, depicts God and surrounding angels in a swirling cloak which is in the shape of the cerebral cortex. God's arm is extended from the frontal lobe of the cortex, the site of man's highest intelligence. 

 


Interestingly, and for some unknown reason, nearly all of the signals from the brain to the body and back again cross over on their way to and from the brain. This means that the right cerebral hemisphere primarily controls the left side of the body and the left hemisphere primarily controls the right side. For more information about the brain, see Links.

The various parts of the brain also largely control different functions. Injury to the frontal lobes affects executive skills of problem solving, abstract reasoning, insight, judgment, planning, information processing, and organization. The parietal lobes are the primary sensory areas of the brain, receiving information about temperature, taste, touch and movement from the rest of the body. Reading and arithmetic are also functions of the parietal lobes. The temporal lobes receive information from the ears thus controlling our appreciation of music and sound. The temporal lobes are also crucial in forming, retrieving and integrating memories and sensations of taste, sound, sight and touch. The occipital lobes process images from the eyes and link that information with images stored in memory. The limbic lobes and other parts of the brain lying deep within the cerebrum determine our emotional state and allow us to initiate movements without thinking about them. 

Feedback and communication constantly occurs between the various areas of the brain. There are roughly 100 billion neurons (nerve cells) in the cortex of the brain. These neurons send electrical signals along their axons to synapses where the nerve impulse from one cell influences the behavior of another cell. It is estimated that each such cell has at least 1,000 synapses where the message from one cell to the next is chemically transmitted. The simple math is that there are roughly 100 trillion synapses in the cortex, a number beyond comprehension but which does help to explain why it is sometimes difficult to diagnose brain injuries. Obviously, the damage can be microscopic and not visualized on current technology, such as computerized tomography (CT) scan and magnetic resonance imaging (MRI). Neuropsychological testing is one way to help prove the existence of brain injuries which are radiologically invisible. See ￿￿Mild￿ Brain Injury Litigation: Making the Invisible Visible.￿

Often the brain injured survivor appears normal. It is the job of your lawyer to explain the reality of brain injuries that may be devastating, changing the survivor￿s life forever, but not apparent to the casual observer. How this is communicated to the average person (read juror) can make the difference between a nominal recovery of damages and a reasonable verdict in whatever amount is necessary to fairly compensate the survivor and his or her family. 

CONCLUSION 

In some communities, such as San Diego, there are active groups and organizations assisting the brain injury survivor and family in understanding their crisis. The earlier diagnosis is achieved, the more hope there is for adjustment to these devastating injuries and the more completely your lawyer can prepare your case. Early diagnosis and retention of a lawyer is particularly an issue if the brain injuries are perceived as mild and therefore do not compel attention of the medical staff. The San Diego Brain Injury Foundation has prepared a pamphlet, "A Brain Injury Guide for Families". As stated in the publication, this information is the "start of your journey." 

In the event that some third party is responsible for the injuries or death suffered by the brain injury victim and his or her family, maximizing financial resources is imperative to deal with your new reality. The earlier the decision is made to retain a competent lawyer, the more effective his or her legal representation can be. As such, interviewing and retaining a lawyer for the brain injury case should be one of the first priorities of the family. See "How to Interview and Retain a Lawyer for the Brain Injury Case." 



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