There are few injuries more worrisome and potentially devastating than traumatic brain injuries. If you or a loved one has sustained such an injury, you shouldn’t hesitate to contact a competent Connecticut brain injury lawyer from Casper & de Toledo. Our firm has extensive experience representing clients who’ve sustained these injuries, and we can put that experience to work for your case as well.
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A Concussion is a Brain Injury
“Really? But at the hospital, we were told that the injury was just a ‘mild concussion.’”
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 full 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). More contemporary publications have claimed that the group of patients who do not recover from an mTBI is around 50%. That figure is derived from actual studies, rather than anecdotal. See Nelson, LD, et al., Recover after Mild Traumatic Brain Injury in Patients Presenting to US Level 1 Trauma Centers: A Transforming Research and Clinical Knowledge in Traumatic Brain Injury (TRACK-TBI) Study., JAMA Neurol. 2019 Sept 1; 76(9): 1049-1059. doi: 10.1001/jamaneurol.2019.1313. Erratum in: JAMA Neurol. 2019 Dec 1; 76(12): 1520 (open access).While that percentage is significantly larger than previously understood, 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.
Emergency Department Visit
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 the 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 within intracranial bleed include excessive sleepiness, loss of facial symmetry including the 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 the appropriate circumstances. 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 a 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.
What Should We Do?
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 made in each case will always reflect our collective judgment about the best interests of the client with the client’s input and concurrence.
Choosing Healthcare Specialists
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 a 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 of spotting signs and symptoms of brain injury than someone else, as well as being more capable of 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 Connecticut brain injury 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 a 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.
What Are the Signs and Symptoms of TBI?
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.
- Loss of Consciousness
- Neck Pain
- Sensitivity to Light
- Sensitivity to Noise
- Balance Problems
- Blurred Vision
- Fatigue/Low Energy
- Feeling “in a fog”
- Difficulty Concentrating
- Difficulty Remembering
- Feeling “slowed down”
- Forgets recent events
- Repeats Questions
- Answers slowly
- “Don’t feel right”
- More Emotional
- “Pressure in the head”
- Sleeping more
- Sleeping less
- Hard to fall asleep
I’m out of Danger; I Have a Doctor – Now What?
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 a 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 the 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 may not require these extra measures that will not be paid or reimbursed by health insurance unless the treatment might change.
As your attorneys, it is our responsibility to plan your case based upon legal standards and the science. While doubtless we have peers who are our equals when it comes to the law, we take great pride that our understanding of the science of brain injury as it relates to personal injury actions is unparalleled in the United States.
What’s Important to Know about the Events Surrounding the Injury?
The most compelling details about a head injury are related to the loss of consciousness (sometimes referred to as “LOC”), amnesia for events before and/or after the injury, or an 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 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 fewer 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. Stewart Casper has been lecturing about the “misclassification of TBI” for years, and issues that he raised are part of the framework for a recent report from the National Academies of Sciences Engineering Medicine entitled “Traumatic Brain Injury: A Roadmap for Accelerating Progress” 2022. (PDF is available at http://nap.edu/25394.)
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 loss of continuous memory 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 a type of amnesia that 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.
Expert witnesses in traumatic brain injury cases are generally a combination of treating health care providers and retained experts. Aside from the initial trip to the emergency room, some patients will see a primary care provider (“PCP”) – often an internist, a family physician, or in the case of a child or adolescent, a pediatrician. Under appropriate circumstances, the PCP may make a recommendation to a specialist. If the symptoms include those listed by the Center for Disease Control, and the referral is to an orthopedic surgeon for a neck injury, that may be a signal that the PCP isn’t very knowledgeable about TBI.
A patient with a concussion should be seen by a neurologist (including a pediatric neurologist), a doctor of physical medicine and rehabilitation (also known as a “physiatrist”), or a sports medicine specialist. In 2011, the American Board of Medical Specialties (“ABMS”) approved the creation of a subspecialty in Brain Injury Medicine (“BIM”) of both the American Board of Physical Medicine and Rehabilitation and the American Board of Psychiatry and Neurology. The first examination for the BIM certification was held in October 2014. Physicians obtaining certification in BIM through the American Board of Physical Medicine and Rehabilitation can be located here. Physicians obtaining certification in BIM through the American Board of Psychiatry and Neurology can be located here. While there are physicians who are extremely knowledgeable about brain injury medicine who have not obtained the subspecialty certification, some because it is unnecessary and some because their training and examination days long preceded the first examination in 2014, for others it may have been required or provided entrée into a coveted job or institutional-based programs. Still, others have sought to capitalize financially on the BIM certification. Proper vetting is advised.
Apart from the medical doctor who can act as the quarterback for TBI medical care, assessment and/or treatment may include the following specialists:
- Psychiatrist and/or psychologist;
- ENT for vestibular and/or tinnitus;
- Physical, vestibular, speech, and/or occupational therapists;
- Headache specialist;
- Pain management;
- Education consultant; and
The mosaic of evidence may also include a vocational expert, a life care planner, and an economist. The order of experts generally follows the order established by the medical “quarterback,” but to the extent an expert is hired for the case, the order may be altered in order to properly sequence the validation that the matter involves a brain injury.
It is beyond dispute that standard clinical neuroimaging, including CT scan and Magnetic Resonance Imaging (“MRI”), is inadequate to rule out the types of structural brain damage that is most often involved in persistent post-concussion symptom presentation. In that regard, for over twenty years, the field of advanced neuroimaging has evolved as a way to detect microscopic (as opposed to macroscopic) damage. A complete summary of the available imaging techniques capable of providing some evidence that might be supportive of a TBI diagnosis is beyond the scope of this website. However, the lawyers at Casper & de Toledo have had the opportunity to use a variety of studies to support their brain injury cases, including but not limited to MRI with Diffusion Tensor Imaging (“DTI”), Susceptibility Weighted Imaging (“SWI), Fluid Attenuated Inversion Recovery (“FLAIR”), as well as other MRI sequences; Single-Photon Emission Computerized Tomography (“SPECT” scan); Positron Emission Tomography (“PET” scan); volumetric analysis including NeuroQuant™; and Magnetic Resonance Spectroscopy (“MRS”).
While the diagnosis of traumatic brain injury is a clinical diagnosis – meaning that for most of the milder forms of brain damage there is no available biomarker or imaging study that standing alone is sufficient to make the diagnosis. Thus, clinicians assemble the cumulative evidence and arrive at an impression for the most probable diagnosis. Physicians engage in this type of analysis every day when making a differential diagnosis. Understandable, we cannot take a biopsy of brain tissue to determine if there is microscopic damage.
When warranted, we believe that any post-head injury MRI should be ordered with advanced imaging protocols and that the study be obtained from a provider who will participate in trial proceedings, if necessary. Sometimes that requires the patient to travel out of the tri-state area because there are a limited number of imaging centers that will provide both the advanced imaging protocols and participation in litigation.
Preventing Brain Injury in Sports and Recreation
The trial lawyers at Casper & de Toledo have not only made a special effort to become highly skilled in representing clients who have suffered brain injury through the negligence of others in car crashes, fall downs, and other fault-based casualty situations, but our lawyers have also become involved with injury prevention.
While he was President of the Connecticut Trial Lawyers Association, partner Stewart Casper developed a program for CTLA that involved the donation by trial lawyers of bicycle helmets throughout the state of Connecticut. That program was used as a model for similar programs around the country.
Casper & de Toledo has also advocated added caution in the area of high school sports, noting that many young people are exposed to brain concussions playing football, soccer, lacrosse, and other sports. A concussion is a brain injury, and it can cause the same cascade of unfortunate consequences that can result from a motor vehicle crash or a fall. When an athlete is injured, there are specific guidelines applicable to health care providers, coaches, faculty, and administrators of school systems. Sitting out one or more games or matches is a far better alternative than experiencing a lifetime of cognitive impairment resulting from a second concussion.
The Center for Disease Control has recently released a package of information made available for coaches, parents, and athletes, enabling everyone to learn more about the problem of sports-related head injuries.
How We Are Prepared to Help You
Here at Casper & de Toledo, our Connecticut Brain Injury Attorneys are in a select group of lawyers nationwide who have not only attended the advanced seminars for lawyers dealing with some of these very significant issues—but who have also lectured at these programs. We are prepared to advise and guide you and your loved ones through an extraordinarily difficult period by focusing on personal and family issues, as well as ensuring that you are exposed to state-of-the-art services in medicine, brain imaging, neuropsychology, rehabilitation, and life care planning. We recognize that brain injury is not merely an occurrence fixed in time but rather is a chronic disease that can affect a patient for a lifetime.
Contact a Connecticut Brain Injury Lawyer
Casper & de Toledo is recognized in the legal community as Connecticut’s brain injury law firm. Certainly, there are other law firms with more lawyers and areas where those firms excel. There are also many law firms that list traumatic brain injury in their menu of areas for which they provide legal representation. But there is no other firm that has consistently participated in brain injury education programs throughout the United State and Canada. Stewart Casper is considered a national stalwart among lawyers who handle traumatic brain injury cases. Furthermore, he has tried numerous brain injury cases to a conclusion, securing numerous multi-million dollar verdicts and settlements. While each case is different, and past results do not predict outcomes in future cases, meticulous preparation, scientific currency, and skills honed as a board-certified civil trial lawyer is a combination that provides the best opportunity to maximize your financial recovery following a traumatic brain injury. We proudly serve clients in New Haven County, Tolland County, Windham County, Litchfield County, Hartford County, New London County, Fairfield County, and Middlesex County. Contact Casper & de Toledo today.