Sustaining a traumatic brain injury can be a harrowing experience. Such an injury can impact a person for months, years, or even permanently. For this reason, it’s not surprising that once someone sustains a TBI, they and their loved ones have lots of questions. Below, our Connecticut brain injury lawyer has compiled a short traumatic brain injury FAQ to help shed some light on these injuries and inform victims and their families of the process and their options ahead.
Traumatic Brain Injury FAQ | Answers to Your Pressing Questions
Just some of the most frequently asked questions regarding TBIs that our firm receives are as follows:
- What Is a Traumatic Brain Injury? Are There Different Categories or Classifications?
- What Is the Current Frequency of Traumatic Brain Injury in the U.S.?
- Is There a Particular Age Group or Gender That Sustains These Injuries More Often Than Others?
- When Someone Comes to Visit a Lawyer for Brain Injury, in What Condition Are They?
- Does the Location of an Injury in the Brain Affect the Severity?
- What Would Be Considered Primary or Secondary Injuries Resulting from a Traumatic Brain Injury?
- What Are Some Common Misconceptions and Misunderstandings People Have about Brain Injuries?
- What Are the Most Common Causes of Traumatic Brain Injury?
- Can a Brain Injury Occur if a Victim Does Not Lose Consciousness?
- Is It Always Necessary to Hit Your Head or Strike One’s Head to Cause a Traumatic Brain Injury?
- Is There a Statute of Limitations on These Types of Injuries?
- What Is the Typical Claim Process When It Comes to an Injury? What Happens When a Claim Is Denied?
- How Long Do Traumatic Brain Injury Cases Take to Resolve?
- Do Most Cases Go to Trial or Settle out of Court?
What Is a Traumatic Brain Injury? Are There Different Categories or Classifications?
A traumatic brain injury (“TBI”), sometimes called an “acquired brain injury” or “ABI”, is an injury that disrupts the normal function of the brain. A traumatic brain injury occurs when a sudden “external force” strikes the head or causes rapid movement with sudden deceleration. A TBI will obviously result from a penetrating injury to the brain, or when mechanical forces interact with the brain as a result of a crash, a fall, an explosion or a blast. A TBI can be the product of a whiplash that causes the brain to move within the vault of the skull, followed by a sudden deceleration of the head when the motion stops. A whiplash injury can cause damage to blood vessels, the gray matter of the brain that makes up the cerebral cortex, and the white matter connections that permit the brain to function like complex electrical circuits.
A traumatic brain injury is distinguished from congenital brain damage (that occurs during gestation) and is distinguished from the type of acquired brain injury that occurs as a result of a stroke or a brain tumor.
What Is the Current Frequency of Traumatic Brain Injury in the U.S.?
That’s a question that doesn’t really have a simple answer. There are various classifications of traumatic brain injury, and classification is determined by the acute injury circumstances. Was the victim of the traumatic brain injury rendered unconscious? Did they have amnesia, and for how long did they have amnesia, both before and after the injury? That system is a very old classification system. In its mildest form, you have a brain injury that is often identified as concussion, and we really don’t know how many people suffer concussions because they fall at home, or playing sports, or because they are in circumstances where the injury is not reported or treated.
The data that’s accumulated by the United States Center for Disease Control reports statistics based on emergency department visits, hospitalizations, and deaths, but that data must under-report the frequency of TBIs. We don’t know the statistics for patients who suffer head injuries but who either fail to seek treatment or who are treated at a primary care physician’s office, a walk-in clinic, or a pediatrician’s office. The actual statistics are really difficult to quantify.
Is There a Particular Age Group or Gender That Sustains These Injuries More Often Than Others?
If we’re talking about the global picture of head injury of all severities, we see the greatest frequency in children, teenage boys, young men, and the elderly.
When Someone Comes to Visit a Lawyer for Brain Injury, in What Condition Are They?
Brain injuries are scary, and we see all types of cases. We receive calls that someone has suffered a traumatic brain injury and is in a coma. We have had occasions in which we have been called to hospitals to meet family members of an injured person in the waiting room outside the intensive care unit to give them advice about what to do.
We have received calls from family members about someone who has been in a motor vehicle accident and has already received acute hospital care and has been transferred to a rehabilitation hospital. We have received calls from people who have been in motor vehicle accidents, who have experienced falls, who have lost consciousness, and are having difficulty because their symptoms aren’t going away.
We see people who are absolutely petrified that they are not going to get better. We see people who cannot efficiently function in activities of daily living, or in their occupation, or in school, and we field a variety of questions about what to do about the continuation of school and the availability of support services including tutors and protections available at work. There is an almost endless list of obstacles for people who have suffered brain injuries, so it is difficult to provide a thorough response to the question. The issues will vary depending upon the age, economic status, the scope of the consequences of the brain injury (physical, emotional, cognitive, and behavioral injuries), and the impact on relationships.
We also get frequent calls from people who are already represented by lawyers who may not have the knowledge and background to provide adequate representation for the injuries involved. Clients should understand that they have the right to switch lawyers at virtually any time following the beginning of representation. Clients are better off retaining competent counsel from the outset, but in certain circumstances, a claim can be salvaged and the Bar Association has established a method for resolving a division of attorneys’ fees.
Does the Location of an Injury in the Brain Affect the Severity?
It certainly can. The types of traumatic brain injuries that we see are largely non-penetrating types, generally, but it really depends. The location of the injury will dictate the outcome in a large measure. There are different geographical regions of the brain, and trauma to any particular area will dictate the extent of loss of function or the types of functions that will be lost or impaired. In addition, the brain works in networks involving multiple structures. So performing certain tasks will likely implicate various functions from seeing and reading to decision making that involves executive function and responding or reacting that can involve other cognitive abilities. Simultaneously, the entire process is impacted by emotion that is regulated in the subcortical limbic system. A combination of macroscopic and/or microscopic damage to gray matter or white matter connections can cause one or more functions to perform poorly.
What Would Be Considered Primary or Secondary Injuries Resulting from a Traumatic Brain Injury?
When we talk about the distinction between “primary” and “secondary injury” we talk about the traumatic event inflicting the primary injury. That is the injury that is inflicted as a result of the blow to the skull or other interaction between physical force and the brain and the immediate aftermath of that injurious event. For example, if there were a motor vehicle crash, the primary injury would occur as a result of the blow to the skull and during the acute period following the crash. That period might include a loss of consciousness or a period of amnesia and that period leading up to the initial visit to the hospital when there would be a display of symptomatology, say within the first hour or so after the crash. Medical intervention during that period would assess the acute injury that might or might not be quantifiable, based upon physical symptoms that have arisen since the injury. But not all manifestations of traumatic brain injury appear within the first few hours after the trauma. Some of the symptoms might be directly caused by or related to the initial trauma.
The secondary injury is a cascade of changes that are neurometabolic, electrical, chemical, and structural changes that occur on a microscopic level within the brain. These secondary changes alter the way that the affected cells interact with each other and the way the brain functions as an integrated organ.
So, when you have gray matter or white matter cells that are damaged, that injury sets off the neurometabolic cascade releasing various substances that have a toxic effect on adjoining cells. That toxic effect on adjoining cells, in turn, creates further cellular damage. That’s what is being referred to as the cascade – it’s essentially a snowballing effect.
The cascade of neurometabolic changes plays itself out over hours, days, weeks, and perhaps even months. As a consequence, it is not uncommon for a brain-injured clients to experience a worsening of function for many weeks from the initial trauma. That’s why, contrary to the old wives’ tale that the brain injury condition is that condition that’s reflected in that first hour or so after the crash, TBI patients often experience a worsening of symptoms due to cellular damage. All the new peer-reviewed scientific literature supports this concept of cascade.
With traumatic brain injury, it’s very difficult to actually measure or quantify precisely what’s going on because we don’t open up skulls and take tissue samples of people who are alive, and so there are a very limited number of approaches that can actually monitor brain function following a closed head injury or concussion. Those measures that do exist are not diagnostic biomarkers. But in the proper hands, good clinicians do have the ability to look at converging evidence to arrive at a proper diagnosis and recommend the most effective treatment. In a large percentage of cases, a diagnosis of traumatic brain injury can only be made from a personal assessment by a good clinician.
What Are Some Common Misconceptions and Misunderstandings People Have about Brain Injuries?
One misconception is that an injury to one area of the brain won’t impact other areas of the brain. The circuits, including the degree of interconnectedness within the brain, are way too complex for there to be such discrete and isolated injury.
Another misconception is patients with mild traumatic brain injury all get better and if they don’t get better, then they are malingering. That’s totally untrue.
Another misconception is that if you have a CAT scan and an MRI shortly after you have been injured, and those studies are interpreted as “normal,” then you don’t have a brain injury. That’s also not true because of the limited sensitivity of a CAT scan and a standard clinical MRI that’s performed in most community hospitals.
Another misconception is that other diagnostic tests tell you something if they are interpreted as normal. An example of this is an EEG measuring brain waves and assessing for a seizure disorder that is interpreted as normal. A normal EEG cannot rule out a traumatic brain injury – it can only establish that there is no evidence of seizure activity. However, you can have a brain injury without seizure disorder.
What Are the Most Common Causes of Traumatic Brain Injury?
The two most common causes of TBI are motor vehicle accidents and falls.
Can a Brain Injury Occur if a Victim Does Not Lose Consciousness?
That’s another myth or old wives’ tale. Loss of consciousness is not a requirement for there to be a traumatic brain injury.
Closely related to the “busted” myth about loss of consciousness is the myth about amnesia. The theory was that there was a linear relationship between a period of amnesia (retrograde, that is, before the accident and anterograde, following the accident) and the severity of the outcome in terms of symptom burden. There are no adequate studies to document this claim.
Is It Always Necessary to Hit Your Head or Strike One’s Head to Cause a Traumatic Brain Injury?
Not at all. The skull, obviously, is made of bone. Inside the skull, it’s not all smooth; there are areas with sharp bony ridges. All that has to happen to cause damage to the brain on a cellular level is that there be enough sudden movement that the gelatin-like brain bounces around inside the skull, and even without sustaining a contusion, a hematoma or identifiable hemorrhage, there can be a microscopic injury to the structures within the brain, which include the white matter and grey matter structures. Such injuries can occur in whiplash-type motor vehicle crashes or blast injuries.
Non-strike TBIs can and do cause a mild form of traumatic brain injury, although the phrase “mild” is in large measure a misnomer for patients who experience persistent symptoms. The term “mild” really only relates to the length of loss of consciousness or disrupted memory following the injury. But for classification purposes, there is no linear relationship between the classification of TBI assigned at the outset of the injury and the outcome, although statistically, upwards of 80% of so-called mild TBI victims make a good recovery. However, if a patient experiences long-term sequelae following a TBI and is assigned a diagnosis of post-concussion syndrome lasting more than six months, the problems are greatly concerning and can be long-lasting and life-altering.
Is There a Statute of Limitations on These Types of Injuries?
Yes, and the statute of limitations will vary from state to state.
In Connecticut, that statute of limitations is two years from the date of the injury in almost all cases involving traumatic brain injury. An exception to that would be in a situation where there is an issue of a defective highway or sidewalk, and while the statute of limitations is two years, there is a 90-day notice requirement. Either the municipality or the State of Connecticut must be notified about the injury in accordance with the statute. There are certain specifications regarding information required in order to comply with the statutory notice requirements, and the notice has to be received within 90 days of the date of the injury.
What Is the Typical Claim Process When It Comes to an Injury? What Happens When a Claim Is Denied?
When someone comes into Casper & de Toledo with a new claim, they have an initial conference to obtain all the necessary background information. Under Connecticut law, attorneys are required to have the client sign a fee agreement. Lawyers can’t represent anybody without having a written fee agreement that has been signed.
Then new clients sign a variety of authorizations from HIPAA compliant medical authorizations to wage and employment authorizations, school authorizations, Medicare and Social Security authorizations – whatever is applicable. We also explore whether or not someone has filed prior claims that would show up on an insurance industry database, simply because that’s information that can be useful and the other side will surely obtain that information.
The attorneys then give clients some guidance about what treatment they are having or may require. They listen to what kind of problems clients are experiencing, and because they are so familiar with this area, they can provide names of different healthcare providers who can address the types of symptoms and problems that are being experienced.
Clients are generally informed that their progress and recovery are going to dictate what a claim will look like. We want clients to concentrate on getting better and following healthcare advice. We’ll make some recommendations about evaluations, and eventually, we will arrive at a point when our office is going to be in a position to try to resolve the case or to put the case into suit.
Most head injury cases go into suit, in part, because insurance companies and big corporations think that people with head injuries, particularly people who fall into the mild traumatic brain injury classification, can be worn down, and they also count on the fact that they can exploit lawyers who are not accustomed to working up these cases and trying these cases.
At Casper & de Toledo, we will gather information depending on the nature of the claim and the types of evaluations, and make a decision at some point to place the claim into suit. And one of the reasons a case goes into suit is that the statute of limitations in Connecticut is generally two years – the general period for spontaneous recovery, i.e. the normal healing process from even a mild traumatic brain injury is one to two years.
Generally, 90% of the spontaneous recovery after a TBI will take place in a year, and the rest will pan out by two years. Good attorneys are not going to run out to two years and then think about trying to settle the case. They want to get that case in suit somewhere around the one-year point after the injury, or when they’re actually ready to frame the complaint. That’s when the litigation process commences.
Some of the evaluations in a traumatic brain injury case, even a mild TBI case, are not only healthcare, involving a medical doctor, psychologist, neuropsychologist, psychiatrist, and therapist, but case preparation also looks at vocational and economic issues. The vocational and economic issues are to determine what impact this injury will have on an individual’s earnings and earning capacity.
Attorneys often work with a life care planner. A life care planner is someone skilled and trained in rehabilitation and formulating an individual’s healthcare needs over a lifetime. In the most serious TBI cases, the client may require some sort of assisted living or custodial facility. Others require some type of supportive living situation, and other clients require just someone to monitor them and manage their finances. These are all considerations that would be addressed by a life care planner.
At Casper & de Toledo in Stamford, CT we put together all these pieces and come up with some numbers for economic damages, and we then evaluate the quality of life issues or the loss of quality of life for the purposes of making a settlement demand – that’s what we call the initiation of the negotiation process – “the demand,” and the responses- “the offer.”
So, all that needs to get stirred into the pot in order to figure out what the case is worth, and in many situations, the case is limited or the ceiling on the case relates to insurance coverage. If there is a limited amount of insurance coverage and that limit is below what the full value of the case is, then the attorney would typically obtain the client’s consent to demand the full amount of the insurance coverage.
How Long Do Traumatic Brain Injury Cases Take to Resolve?
If someone has a traumatic brain injury, then the resolution of those cases will generally take around three to four years, unless there is a limit to the coverage and that three years can get extended if the case is going to be tried. Some cases that are tried can end up being appealed, so things can go on for several years. But that’s really something that has to be judged on a case-by-case basis.
Do Most Cases Go to Trial or Settle out of Court?
That answer, likewise, is dependent upon the circumstances of the case, and it will depend on the nature of the lawyers and insurance companies involved.
Generally, defense lawyers and insurance companies know which lawyers will go to trial and which lawyers will likely capitulate to the insurance company. At Casper & de Toledo, we will try the case when the case should be tried, and we will not capitulate unless there is a very good reason to do so. So, a general answer to that question cannot be given. It really depends on the unique circumstances of each case.
Contact Casper & de Toledo Today
If you have more questions regarding traumatic brain injury cases, call Stewart Casper at the law office of Casper & de Toledo LLC for a free initial consultation at (203) 325-8600 or contact us online to get the information and legal representation you’re seeking.