Contributing Attorney

Michael P. Earner

the Topic

Shake, Rattle, and Roll: Your Brain on Injury

When damage is dealt to the brain it can’t regenerate cells to fully recover from the damage done. This means when someone sustains a Traumatic Brain Injury (TBI), they will never fully recover to the person they once were, and this can have profound impacts on how someone functions both on their own and with the people they care about. Our brain defines who we are as people, and once these changes start to occur it can interfere with how we lead our life. The cells in the brain are all connected, and once these cells are damaged or the connection between them are broken the functions those connections perform will be lost forever. Those who suffer from a TBI may have permanent difficulties with:
  • Cognitive Abilities
  • Movement
  • Massive Personality Changes
  • Memory
  • Emotions

What are the Different Types of Traumatic Brain Injuries?

There are two kinds of traumatic brain injuries that may occur, an open or a closed TBI.

What is an Open TBI?

An open TBI is often associated with a physical wound as well as a brain injury, such as a laceration to the head or a fractured skull on the area where the brain injury was sustained.

What is a Closed TBI?

A closed TBI is a brain injury that occurred without a physical component, and occurs when the brain violently strikes the side of the skull due to impact.

Despite this difference, both open and closed brain injuries are equal in their severity, so it is important not to mistake the lack of a physical component as any signifier of the injury’s severity.

How do doctors diagnose a Traumatic Brain Injury?

Traumatic Brain Injuries are often difficult to diagnose quickly. Many people don’t experience any symptoms for up to one month after the injury is sustained. It is also often difficult to diagnose a TBI because the early symptoms resemble a concussion rather than the more serious silent injury lurking below the surface. To make matters worse, MRI and CAT scans may also come back appearing as normal. This means that one can be lingering with a TBI for months, if not years, without ever having it formally diagnosed by a doctor. Early symptoms include:
  • Nausea
  • Severe headaches
  • Sleepiness
  • Irritability
As the injury continues to develop, mood swings, memory problems, and other massive personality changes can begin to occur that the injured person’s loved ones may begin to notice. The reality is, the injured person may not be in any shape way or form aware of some of the shifts in personality, further complicating the process. Traumatic brain injuries aren’t only hazardous to one’s normal functioning in life, but are also financially tasking. As a brain injury is being treated the goal is to reach maximum medical improvement. To get there, the costs related to that treatment just keeping adding up and these costs can be expensive – very quickly. While the initial treatment for a TBI is more expensive than later treatments, one can only make what’s called a “functional recovery.” This term refers to the notion that an injured person has made as much of recovery as is possible, and have reached maximum medical improvement. One must also think about the injured person’s ability to work. This would be significantly lower due to the massive implications on the person’s physical health. It is difficult to focus and function with memory problems or a constant headache. Brain injuries also make it difficult for someone to engage with difficult tasks, because they lose the cognitive abilities to be able to figure out how to do something. Physical labor becomes unbearable and jobs that involve too much focus become nearly impossible. Also, constantly having to attend doctor’s appointments to recover from any physical injuries sustained as well as the brain injury cause the injured person to have to miss significant amounts of work. Attorneys exist in part because sometimes you get hurt due to someone else’s negligence. Everything described above is tragic and life-altering. These are often referred to as catastrophic injuries, but catastrophic doesn’t even begin to describe what happens. If your loved one’s personality suddenly changed, it would have a profound impact on both them and you, as someone who cared about them. When someone is hurt in a automobile collision or slip and fall, they shouldn’t have to worry about paying for medical costs, or recovering any wages from time they missed at work. Instead, they should be able to focus on recovery and doing anything that is necessary to make it to maximum medical improvement. An experienced personal injury attorney can help with this. An attorney’s job is to help you recover money to be able to pay for any property damage, any lost wages, and more importantly present and future medical costs. An attorney’s primary concern when it comes time to handle a case where the plaintiff is suffering from a TBI is to make sure they not only can pay off any and all medical costs they have sustained up to that point, but also have money to pay for the future care they will need for the rest of their life.

The financial considerations in a TBI and what should be included by lawyers when determining how much it will cost to treat someone with a TBI.

If you were to suffer from a TBI and retain an attorney, they quickly begin constructing your case by accumulating all of your medical records, and putting together medical chronologies. These are summaries of each and every doctor’s visit that you have gone to. Unlike your doctors, who only build off the records from their facilities, we combine records from any and all facilities that you went to for treatment, allowing for the first time for a narrative to begin to be constructed.

The Narrative

This narrative will tell the story of not only the incident where injuries were sustained, but also how your injuries worsened, and hopefully, how they began to recover.  As part of this narrative, they will also collect letters from your employers about the time you missed at work, any property damage reports, as well as any other damages that you might have sustained, as all cases are different and unique so you might have unique damages.

They will also speak to members of your family and friends, talking to them about who you are as a person currently and what you were like prior to the incident.

This allows an attorney to construct a different kind of narrative, one of who you are as a person. Think about it this way, if you went on a road trip every year with your family, and following your incident, you stopped going at all, that represents your case.

Your attorney may also recommend a specific type of doctor for your case.

An attorney is the first person to really be able to see the big picture of your case, and this allows them to construct the initial narrative. Obviously, however, this is not where an attorney’s work ends. The next thing you should expect from an attorney is to refer you to an expert doctor.

Expert Doctors

Expert doctors are doctors who evaluate you and are very knowledgeable about a specific kind of medicine, for example, in a TBI case they would most likely be neurologists. However, what will set aside an expert doctor from an average neurologist is a few things. Firstly, they are legal experts, they understand how the law works and the inner-workings of how a case progresses, so they are better qualified to assist both you and your attorney in moving the case forward. They are also capable of giving testimony in both depositions and trial in regards to their examination, in addition they will review all of your previous medical records and be qualified as well to testify on behalf of your previous doctors to how reasonable all treatment you received up to that point as well. Moreover, their examination goals are different than the goals of an average neurologist. Their main concern will not be with your current status, but with how much you have recovered up to this point and what future treatment that you are going to need. Their job is to help determine what your maximum medical improvement will look like, which depends on a variety of factors. As I stated earlier, no two brain injuries are the same, even if the symptoms are similar. One person may make a 90% recovery, while another will only make a 40% recovery. An expert doctor as part of their examination will try to determine this specific number, to help your attorney make the first steps towards to determining your future medical care, and the costs that will be associated with it.

Life Care Plan

The next step in a TBI case, and something that is handled primarily by your attorney, is the construction of what is called a life-care plan. A life-care plan is an organized document that discusses what can be expected for your future medical care, what kind of doctors will need to do this care, and estimated costs for what all of this will cost.

This life-care plan will account for the treatment that the life-care planner believes you will need for the entirety of the rest of your life. It is important to remember that a majority of your care will happen immediately following the incident, but that most individuals suffering from a TBI will need some kind of treatment for the rest of their lives so they will be able to live long and meaningful lives.

The life-care planner will speak to you about how you live, what kind of life you look to lead, and how severe your symptoms are, but will primarily rely on previous records and testimony of your doctors to construct this life-care plan. At this point in time, an economist is often brought in to adjust the life-care plan for inflation, as it will presumably account for a number of years.

Vocational Therapists

The last kind of expert that will be discussed here is a vocational therapist, who will be brought in by your attorney to assess your ability to work. This expert will analyze everything that your doctors have said about your health to evaluate your continued ability to work in comparison to your qualification, to see how much less money you will be capable of generating in comparison to what you were previously able to generate. This is definitely one of the cases where you need an attorney. An attorney’s job to look at everything and take it off your hands. Attorneys often have doctors, life-care planners, economists, and vocational therapist that they already know and trust. An experienced attorney works for you not only to build your case, but allow you to not have to worry about it. Moreover, a good attorney will help you get back on your feet, while all of these experts help to build your case, their job is to help you get the things you need to recover. Those suffering from brain injuries deserve to have the time and space to worry about recovering from their brain injuries and building a life that doesn’t prevent them from taking those road trips with your family every year. An attorney is here to fight for you to get the compensation that you need for your injuries to make sure that you are taken care of, but also be a friend to help you. Attorneys listen to you when you tell them about the things you can’t do, they care about you not only as a client but a person. Most attorneys only take cases they truly believe in, so hiring an attorney to help you recover is not only a move that you need to make to get back on your feet financially, but it is also about finding someone who cares about you and believes in what it is you’re fighting for as much as you. If you are suffering from a TBI, hiring an attorney to advocate for you is the best ove you can make.

About the Author

Michael has always had a passion for helping people and always seeks out opportunity to serve others. When Michael was in his early 20’s, he answered a call to give back by joining the US Army shortly after September 11, 2001. Michael was injured during a combat patrol in Afghanistan and he opted to undergo an early, honorable, medical discharge from the military. He is now a disabled veteran rated at 100%. Michael decided to continue his service to others as a lawyer and used his GI Bill to go to law school. Michael has earned five college degrees including two undergraduate (A.S, B.A.) and three graduate degrees (J.D., L.L.M., M.B.A) and has completed additional graduate coursework in the field of Forensic Psychology as well as completing professional courses at Massachusetts Institute of Technology and Cornell University.

Want to be Featured?

Click the link below for more information on how to submit.

Explore More Contributions

How Can A Focus Group Help My Case?

Contributing Attorney the Topic Whenever I speak with a trial lawyer who has never used our focus group services before, the two most common questions they have are: 1) how a focus group can help them win or settle their

Read More »

Circumstances That Warrant DME/IME Attendance

Client Advocate the Topic Circumstances Warranting TTS DME Attendance If your client is actively in litigation for a personal injury claim, there is a high likelihood that at some point, he or she will have to submit to an “Independent

Read More »