The first thing to understand is the significance of the above heading “A concussion is a brain injury.” There are several terms or diagnoses that are used interchangeably for head injuries. The synonyms include mild head injury, sports concussion, mild concussion, concussion, acquired brain injury, brain injury and mild traumatic brain injury (sometimes referred to as “TBI”). The terms at the beginning of the list sound a lot better than those that include the words “brain injury.” And so, not surprisingly, emergency department staff and medical doctors often try to avoid a diagnosis that includes terms that sound ominous. Fortunately, most head injuries, concussions and even mild traumatic brain injuries not only improve but are felt to completely resolve. The problem is that improvement does not necessarily equate to complete recovery.
From an epidemiological standpoint, there are probably in excess of 2.5 million assorted head injuries in the United States each year. The precise figure is somewhat elusive because those statistics rely in large measure on hospital visits. There are likely many more head injuries that never become part of hospital statistics because the victim never goes to the hospital. In addition, there are studies that demonstrate that head injury symptoms are often overlooked in the emergency department because of greater concern with more serious co-occurring injuries. And when it comes to data about recovery, the data is “soft,” because most head injury patients are lost to follow-up for subtle signs of injury that can only be detected with sophisticated and expensive testing, providing for evaluation of visual disturbance, neuropsychological symptoms and behavior issues.
Nonetheless, the general scientific literature on traumatic brain injury does contend that most patients who suffer a concussion and even mild traumatic brain injury make a full recovery in 3-6 months. The patients who do not make a fully recovery within the narrow window of 3-6 months comprise a group that has sometimes been referred to as the “miserable minority.” Brain Networks Subserving Emotion Regulation
and Adaptation after Mild Traumatic Brain Injury, J Neurotrauma. 2016 Jan 1;33(1):1-9. doi: 10.1089/neu.2015.3905, 2016. The miserable minority has been estimated to make up anywhere from 7-40% of the total brain injury population, with a general consensus settling at about 15-20%. See Lezak, M.D. et al, Neuropsychological Assessment, Oxford University Press, (5th Ed. 2012). While that percentage is not huge, the math tells us that somewhere between 200,000 – 400,000 people yearly who suffer a concussion do not make a complete recovery. That’s huge.
As noted above, many head injured patients visit emergency rooms in U.S. hospitals each year. The statistics for the rate of emergency room visits have been rising steadily, largely by reason of greater public awareness of potential morbidity from concussion. Over the same period, the rate of actual hospitalization has increased gradually.
If a patient is cleared for release and discharged from the emergency department following a head injury, that news should be viewed as encouraging. Yet there are several reasons that the discharge instructions following a head injury warn that if any symptoms worsen, the patient should return to the emergency room. Of the complications that can arise after an initial visit, intracranial bleeding is probably the most feared. Symptoms that are consistent with in intracranial bleed include excessive sleepiness, loss of facial symmetry including disparity in the size of the pupils, changes in vision, speech or facial functions, or alteration in any other neurological function. It is important to understand that in the emergency department, a patient is screened for life and limb threatening conditions. See Initial assessment and treatment with the Airway, Breathing, Circulation, Disability, Exposure (ABCDE) approach, Int J Gen Med. 2012; 5: 117–121 (open access). In the context of head injury,assessment is accomplished by a survey of systems, a physical exam including a fairly rudimentary neurological exam and imaging under appropriate circumstance. The Gold Standard for imaging in the emergency department following head injury is a CT Scan. However, a CT Scan is most reliable for identifying skull fractures and gross internal bleeding. It is not a reliable study to rule out the most common types of brain injury that occur on a microscopic basis. Even a standard clinical MRI cannot rule out microscopic gray and white matter damage to the brain that can cause the chronic symptoms experienced by the “miserable minority.” The bottom line is that an Emergency Room visit cannot rule out a brain injury. See generally Bigler, E.D. et al, Neuropathology of mild traumatic brain injury: relationship to neuroimaging findings, Brain Imaging Behav. 2012 Jun;6(2):108-36 (abstract).
Hospitalization & Rehabilitation for Traumatic Brain Injury
Brain injury patients will generally require in-patient hospitalization for their head injury under various circumstances including but not limited to: 1) history of loss of consciousness; 2) abnormal neurologic signs/symptoms; 3) abnormal acute neuroimaging including hemorrhage (subdural or epidural hematoma); 4) need for surgical intervention; and 5) co-occurring injuries. From a legal standpoint, we would like family members or friends to record representative video and/or digital images of events – “a picture is worth a thousand words.” Ultimately, we will want the images together with the date taken and the name of the photographer. The same request applies if the patient moves on to a rehabilitation facility, including rehabilitation hospital or convalescent facility.
In cases involving severe injuries, if we are engaged in time, we will send a professional video team to the facility to record a “day in the life” video that can later be used to show the semi-acute stage of recovery and examples of therapies that assist in relearning skills required to engage in activities of daily living.
Please understand that we cannot actively undertake representation unless and until a retainer agreement has been signed. Further, there is little we can do without also receiving signed authorizations to obtain medical, education and employment authorization. Notwithstanding the need for signed documents, at Casper & de Toledo, we think we are generous with our time providing free initial consultations both over the telephone and in person, providing guidance about quality healthcare providers, therapeutic facilities and initial impressions about legal rights and remedies.
When it comes to ultimately pursuing legal claims, sooner is always better from our perspective, and sooner doesn’t necessarily mean filing a quick lawsuit. We are not a law firm that tries to make a publicity splash by filing a lawsuit right away. Nor will you find us advertising on TV, the side of a bus or on a billboard. Decisions to be made each in case will always reflect our collective judgment about the best interests of the client with the client’s input and concurrence.
At Casper & de Toledo, we think about all of our injury cases in much the same way. But in brain injury cases, perhaps more so than in many other traumatic injury cases usually involving falls and car accidents, we emphasize the importance of trying to be seen by a suitable health care specialist as soon as possible. The choice of physician can make all the difference in the world. It is important to promptly follow up with healthcare providers who truly understand the science of concussion and traumatic brain injury.
There are many well-meaning physicians practicing medicine who really do not focus on head injury as a subspecialty, even when they specialize in neurology, neurosurgery or physical medicine and rehabilitation as examples. A TBI specialist will be more capable than someone else of spotting signs and symptoms of brain injury, as well as following the unfolding cascade of symptoms that can worsen over days, weeks and months following the injury. Primary care physicians can be a good resource for referrals to a concussion or brain injury specialist. But identifying a brain injury specialist among a group of well-trained practitioners in Connecticut, New York or elsewhere can be tricky. An alternate resource is a trial lawyer whose practice focuses on TBI, concussion and brain injury.
The lawyers at Casper & de Toledo are not reluctant to go to trial in the right circumstance. Interestingly, insurance defense lawyers will generally ask how you decided to see doctor so and so. Their goal is to “score some points” by pointing out that the client was referred to a doctor or other specialist by one of our lawyers. Bring it on. That’s part of our job, and we take it seriously. We will not ever recommend a healthcare provider to treat you that we wouldn’t use or to whom we wouldn’t send a family member.
There are many signs and symptoms of traumatic brain injury. In the more severe classes of brain injury, the signs and symptoms are generally very obvious and revolve around structural damage readily identified on standard CT scan or MRI, such as skull fractures, abnormal neurologic signs, cerebral spinal fluid leak, or blood in places it shouldn’t be, including the ear canals.
In less severe head injury and concussion cases, the most common signs and symptoms of traumatic brain injury are contained on the following lists.
Aside from locating a good physician, it is important to follow the instructions for rest, recuperation and rehabilitation. Naturally, you want to “get better.” Highly motivated people with concussions are generally in a rush to return to normal activities ranging from return to the playing field to returning to work. They also struggle with cognitive dissonance caused by the conflict of perhaps appearing fine but feeling lousy and being unwilling to accept that existence of a brain injury.
In most clinical practices, healthcare providers will maintain a fairly consistent diagnosis without taking the extra steps to “prove” the existence of a brain injury. When we handle brain injury cases, we sometimes retain the services of forensic consultants in different specialties to “prove” the injury. In the litigation context, we need to do that. In the clinical context, a confident diagnostician does require these extra measures that will not be paid or reimbursed by health insurance unless the treatment might change.
The most compelling details about a head injury relate to loss of consciousness (sometimes referred to as “LOC”), amnesia for events before and/or after the injury, and altered state of consciousness that can be described as being dazed, confused or just “out of it.” The most common definition of mild traumatic brain injury used in the United States was adopted by the American Congress of Rehabilitation Medicine (hereafter sometimes referred to as “ACRM”) in 1993. These signs and symptoms take on heightened importance when there are no hard neurological signs of injury and if standard clinical neuroimaging is reported as normal.
It is also important to understand that when insurance companies contest a diagnosis of brain injury, the contest usually focuses on the initial evidence of head injury. So it is critically important in the context of a potential negligence to identify witnesses and other evidence that can help prove: 1) Loss of consciousness – not moving or responding to commands at the scene at any time including the period before the arrival of the police or paramedics. 2) Amnesia for events preceding and/or following the traumatic event. This can include someone who suffers a concussion and is actively engaged in conversation – even walking around but who cannot remember the events following the injury. An example of this phenomenon was the 1994 NFC Championship game involving Hall of Famer Troy Aikman. Football, Violence, and Troy Aikman’s Concussion Story: League of Denial (Part 2 of 9) | FRONTLINE. 3) Being dazed or confused.
Loss of consciousness of less than 30 minutes falls under the definition of mild traumatic brain injury. An injured person can experience a LOC for literally a second, minutes, hours, days, weeks, and so on. The general rule is that there is a linear relationship between the length of loss of consciousness and the severity of the brain injury, but it does not necessarily follow that that there is a linear relationship between the length of loss of consciousness and the symptom burden of post-concussion syndrome.
A witness may be able to identify a loss of consciousness, but it is doubtful that a patient can differentiate between a LOC and a failure to restore memory – indicative of amnesia and a potential problem in an unwitnessed injury. The failure to store memory about some event surrounding the injury is a form of amnesia. So when the ACRM definition references amnesia, it does not require “Hollywood amnesia” where the protagonist awakens in a hospital bed without memory of who they are or where they are from. Instead, amnesia, as used in the ACRM definition, can relate to either continuous memory losses or gaps in memory. Thus a patient seen walking and talking at the scene of a crash might not have complete memories of the event. That’s type of amnesia is entirely consistent with TBI. A patient can also regain consciousness but not experience restoration of continuous memories for over twenty-four hours, and that can justify increasing the classification of brain injury to “moderate.”
While the classification system for TBI seeks to employ specific criteria, many practitioners generally consider the system to be antiquated. As previously noted, it was adopted and published in the early to mid 1990s. It evolved more from an attempt to arrive at a consensus based on anecdotal evidence, rather than true scientific evidence. Moreover, at the time the ACRM system was adopted, the field lacked evidence of microscopic injury now available with the use of advanced neuroimaging using diffusion tensor imaging and volumetric analysis. Thus, somewhat arbitrary labels can, and often do, unjustifiably prejudice a potential brain injury case, underscoring the importance of experienced brain injury physicians and trial lawyers.