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).
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.
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 the 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 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 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 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.
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
Sensitivity to Light
Sensitivity to Noise
|Feeling “in a fog”
Feels “slowed down”
Forgets recent events
“Don’t feel right”
“Pressure in head”
Hard to fall asleep
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 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 related to the loss of consciousness (sometimes referred to as “LOC”), amnesia for events before and/or after the injury, 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.
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 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 mTBI. 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 at https://www.abpmr.org/PhysicianSearch/Search. Physicians obtaining certification in BIM through the American Board of Psychiatry and Neurology can be located at https://application.abpn.com/verifycert/verifyCert.asp?a=4. 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 specialist:
5) Psychiatrist and/or psychologist;
6) ENT for vestibular and/or tinnitus;
7) Physical, vestibular, speech, and/or occupational therapists;
8) Headache specialist;
9) Pain management;
10) 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.
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. Call 203-325-8600 and ask to speak with Stewart Casper about a potential brain injury claim.