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Traumatic Brain Injury Litigation

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Traumatic Brain Injury Litigation

Every year more than two million people seek treatment for Traumatic Brain Injuries (TBIs) in the United States, according to the Centers for Disease Control and Prevention. TBI claims are on the rise in personal injury litigation, from catastrophic accidents to minor fender-benders. But what are TBIs and how are they diagnosed?  This one hour presentation will provide a fast-paced overview of TBI injuries, the effects they have on an injured person, and how they are diagnosed and measured.


Gerald Connor
Margolis Edelstein


Gerald Connor - Hello, everyone. And welcome to today's presentation regarding traumatic brain injuries. My name is Jerry Connor. I'm an insurance defense attorney in Pennsylvania for a law firm called Margolis Edelstein. And over the past few years, we have seen truly an explosion of traumatic brain injury claims being made a part of personal injury litigation. We thought today would be a great opportunity to review traumatic brain injuries, how they're diagnosed, how common they are, some of the causes of them, and how they can be a driving factor in personal injury litigation. It's critical that you'll now be able to spot these early on, take a look at the medical records, and also recognize if your clients are experiencing any number of symptoms. These may all be related back to injuries suffered in an accident that now can be made a part of their personal injury claim and handled accordingly. Similarly, if you do defense work, this will also give you a number of issues to spot and the early review of medical records so help you defend these claims as you move forward. Of course, as always, this is a general seminar. So, it's always very productive and certainly the best advice to review the laws and procedures of your local jurisdiction.

But let's start right off. What is a traumatic brain injury? Well, a TBI or traumatic brain injury, usually results from a violent blow or jolt to the head. Now, certainly, an object that goes through brain tissue, such as a bullet or piece of glass, or certainly a piece of the skull can also cause a traumatic brain injury. Now, a mild traumatic brain injury may affect your brain cells temporarily. Oftentimes, people feel that they're disoriented. Sometimes the term is they got their bell rung. That's not uncommon. Now, we can handle that just in our daily lives. We bump our head getting out of a car, underneath a table, underneath the sink, as we try to look for something and hit a drawer. Those are certainly very mild. But as they increase in severity, certainly there are an increase of symptoms and short-term and long-term problems that you may deal with. More serious brain injury can result in bruising, torn tissues, bleeding, and other physical damage to the brain. And as I mentioned, these can certainly result in much more long-term complications that you need to be well aware of.

How common are these? Well, it seems that they're increasingly common but partly they've become much more part of the collective consciousness due to the NFL litigation that many of you are familiar with. But every year, more than 2 million people seek treatment for traumatic brain injuries according to the Centers for Disease Prevention, Disease Control and Prevention. Increased emergency room visits are also being seen by more than 50%. And again, they're caused by a bump, a blow, a jolt to the head that can have very long-term and serious sequela. They're being asserted in less serious accidents, such as slip and falls or even minor fender benders. And again, the public has grown increasingly aware of these due to the National Football League litigation that happened over the last 10 to 15 years. There have also been well publicized cases of CTEs, which is chronic traumatic encephalopathy, which can really highlight the long-term and even decades long problems that people have. Another reason we're seeing them in litigation is certainly they can be a very significant value driver On top of broken bones and other problems, traumatic brain injury claims, especially when recognized early on and properly documented and treated, can give an increase in value of any personal injury claim. Traditionally, the insurance industry has always looked at paralysis, scarring, burn injuries as being huge risk factors, red flags to spot as early as you can in a case. Well, traumatic brain injuries are also now being spotted early on and being handled by different levels of insurance adjuster. Again, due to the significant potential exposure these injuries can bring.

How dangerous are these? Well, according to the CDC, car accidents contribute to about 14% of the brain injury cases. And one person sustains a brain injury every 23 section, seconds. And at least 50,000 of these people will die annually following a traumatic brain injury. Again, the statistics are in the materials and it's important to note though that the statistics that are reported certainly have no way of capturing the more minor or less serious traumatic brain injuries. You know, folks who go to an urgent care, that they go to the emergency department, maybe they talk to their doctor, or don't even seek treatment. So, it's always important to note that more than likely the traumatic brain injury exposures and injuries are somewhat underreported for those reasons. These numbers make sense. But again, it helps you when you're speaking with the client recognize that this is some part of damages or potential injury that they have suffered that you need to focus on early on.

So, who are more at risk? Well, these all make sense, but when you talk about them again, they're just a really good tool as you're intaking a client to maybe just keep a little bit better view of whether there is this exposure or whether this person was at a greater risk for a problem based on their age or some of the other factors. People age 75 years or older have the highest number of hospitalizations and deaths related to traumatic brain injury. About 32% of TBI related hospitalizations and 28% of all TBI related deaths are in people age 75 or older. Now, thinking about that makes sense. Certainly, elderly claimants have a higher level of other comorbidities, and they're also more than likely prone to trip and falls or slip and falls.

So, it's not uncommon, certainly, that you would expect that, but that is a huge risk factor to take into account. So as a practice point, and I do believe practice points are sometimes the more valuable information you can gather in these seminars, if you have an elderly person, certainly someone over age 75 who's been involved in a trip and fall or a car accident, perhaps mark that file with just a little more attention to detail. See whether there was the exposure to a traumatic brain injury, collect the records early on, and keep an eye on those issues. Now, again, it's oftentimes very hard to separate out traumatic brain injury from other age related risk factors, such as Alzheimer's and dementia. And again, there's oftentimes a chicken versus the egg argument that you may have to deal with. But again, keep an eye out for that risk factor as being age related. Similarly, not unexpectedly, men have nearly two times more hospitalizations and three times more likely to die than females from a traumatic brain injury. Again, not uncommon. Men are certainly going to be involved perhaps in more contact sports, more recreational sports that involve physical contact. But again, if you are looking at a client as they come in, it's more likely that a male who is involved in an accident has suffered a brain injury.

 Children, from birth to 17 years old, also have a significant number of hospitalizations and deaths. Again, these are generally little kids who have been involved in a car accident. They've fallen down steps. They've had an issue where they've had an injury to their head. And again, the skull of a child is certainly not even fully formed for several years after birth. And they may be involved in sporting activities. Maybe they're not in a car seat or they're not wearing a seat belt properly. They're struck by an airbag where they shouldn't even be in an airbag front seat. Again, these are just pointers of risk factors and populations that you may deal with that need to have more attention paid to them.

Now, where do these injuries come from? Well, at least 50% of all traumatic head and brain injuries are the direct result of a car, bicycle, or pedestrian versus vehicle incident. Now airbags, seat belts, crash avoidance systems certainly have helped reduce that number. And not certainly eliminate it, but help mitigate head trauma and injury. 50% are going to come from car accidents. And I can say from my experience that's the vast number of claims that we see are related to automobile accidents. So, car accidents are certainly the most common cause of these injuries. And then coupled, certainly with slip and falls, where someone falls and hits their head. The CDC has a tremendous amount of resources available and statistics. I've given a link in the materials to the CDC data. And that's constantly being updated as more information is collected and then researched, collated, and then published. But it's really instructive if you wanna get a good deep dive into the traumatic brain injury data.

Well, what are the causes? And again, in our early summary, we talked about that. Traumatic brain injury is generally caused by a blow or injury to the head. The severity and the degree certainly depend on several factors, including the nature of the injury and the force of the impact. Again, we can't stress this enough because, again, when you're looking at accepting a new client, they may or may not have records that talk about their brain injury. They may not recognize that they've suffered a brain injury. It may be mild or it may be moderate. And it's up to you to perhaps early on identify this is being one more level of injury. And again, it's a value driver.

So, you wanna make sure early on you are asking the correct questions. Were they in an incident where they had any type of head or brain injury? Did they strike anything in the car? Were they treated for brain injury? Or do they have some deficits that will talk about that really are things you wanna identify on. So, was there a violent or forceful movement of the person's head? Again, you get hit in a car accident, well, of course there might be. But if your brain is moving around in your skull, really for lack of a better term, even if you didn't hit the windshield, hit the window on either side, if you hit the door, hit the dashboard, hit the headrest, there still could be easily a triggering event for a traumatic brain injury. Again, it's kind of a sloshing, pardon the layman's terms, but that's how I've seen really experienced medical professionals describe it. Your brain moving around in your skull and then having an impact on your cognitive abilities, your physical problems, and other issues that, again, we'll talk about. The most common cause as we mentioned certainly are vehicle collisions, but falls, falls from a bed or a ladder, falls down and stairs or in a bath. And again, think about why older adults and younger children have those as triggering events.

As we talked about, remember some of the risk factors are being significantly older or being under age 17. Well, falling down steps, falling from a bed, people who were fall hazards in nursing homes and hospitals certainly are at a much greater risk for a fall. And then, of course, there's the related cascade of injuries which can include brain injury. Violence, gunshot wounds, domestic violence, child abuse are certainly other causes. Shaken baby syndrome has thankfully kind of grown into the national consciousness and can certainly lead to significant neuropsychological problems, including cognitive issues and brain injuries. Sporting injuries are really where traumatic brain injuries kind of got their footing, at least again, to join the national discussion and the national narrative on how significant these injuries are. And there's also a great discussions in the CDC materials of the cumulative nature. So, someone who is in football for four years in high school may have not necessarily one defining injury, but may have a cumulative in series of injuries that will give very negative dividends down the road. We also see them sadly in our veterans and our troops with explosive injuries, combat injuries. Certainly well beyond the discussions of what we're here to talk about today. But penetrating wounds, being involved with roadside blasts, hidden mines attacks, of those nature certainly can also have devastating lifelong impacts on someone.

Well, again, why are we repeating a lot of this material? Because it's very important that as you speak with folks or your paralegals or your staff interview potential personal injury claimants, you wanna make sure that you're recognizing very early on this heightened level of exposure for adults, perhaps 60 years old and older, males in any group, and young people, either children under age four or young adults, who are getting either living more risky lives, being involved in more risky event, car accidents, doing motorcycle activities, different types of physical activities that do expose them to a greater challenge and a greater risk of head injuries.

Now, what are the complications from brain injuries? Well, these run the gamut and we'll try to do our best to work through these. But again, the critical point here is issue spotting, just like we had in law school. You wanna recognize when you're reading a police report or an ambulance report, or a hospital record, whether these issues are going to come into play. So, what are some of the complications from these brain injuries? And again, you're going to see the gamut here from mild, to nothing, to coma. Well, a moderate or severe brain injury can result in a prolonged or permanent change in a person's state of conscious, their awareness or their responsiveness, whether they know where they are, their time, their place, who other people are. Kind of their state of consciousness and their ability to be aware of where they are and what has happened to them. Again, there are different states of consciousness. Yeah, some of these are somewhat obvious, but a person can be in a coma that's unconscious, unaware of anything, or unable to respond to any stimulus. This results from widespread damage to all parts of the brain.

After a few days or a few weeks, a person may either emerge from a coma or begin to emerge or perhaps enter what is called a vegetative state. A vegetative state is widespread damage. Although, the person is unaware of their surroundings, excuse me, he or she may open his or her eyes, make sound, or respond to reflexes. It is possible that a vegetative state can become permanent, but often, individuals progress to a minimally conscious state. So, someone is experienced, has experienced a brain injury. They've been what we would call in a vegetative state or a coma. Well, it's possible that they may make some improvement and come out of that state. A minimally conscious state would be an improvement and it's a state that someone still has a severely altered consciousness, but some signs of self-awareness or awareness of one's environment. It is still a transitional state from a coma or a vegetative condition to greater recovery. Brain death. Well, when there is no measurable activity in the brain or the brain stem, this is called brain death. This is essentially someone who has been declared brain dead. And if you were to remove their breathing device, a respirator, they would stop breathing. Their body truly has no ability to maintain even the most basic life functions. And without breathing aids, they'll eventually suffer heart failure and they'll die. That's irreversible brain death or brain death is considered irreversible. Now, those are obviously very easy diagnosis to make if you receive a new file. You interview a loved one and they tell you, no, my mom, my dad, my spouse, my child, has been declared brain dead or in a coma. Well, you're obviously going to recognize a traumatic brain injury has resulted. You'll collect those records and handle that file accordingly.

For folks who either are experiencing those cognitive issues, there are also going to be the physical complications such as seizures. And, oftentimes, a seizure may occur only in the very early stages of the incident or at the other end of the spectrum, they can happen years after. Recurrent seizures are called post-traumatic epilepsy. We see this oftentimes in slip and fall cases. In Pennsylvania, we have somewhat severe winters and it's not uncommon in cases that we handle that an ambulance record will report that someone fell, hit their head, hit the back of their head. Generally they fall, their legs go out from under them, and they may have what appears to be a seizure. And that's it. It's reported or it's either recorded by the people who called the first responders or perhaps the first responders reference it and recorded in their emergency notes, but it's not uncommon. And that's certainly a classic sign that someone has that had at least a traumatic injury to their brain.

Now, it may be transitory, but you wanna look for that in a police report, in eyewitness reports, and recorded statements, and certainly in the EMT or first responder records. Fluid may build up in the brain. Cerebral spinal fluid may build up in the brain. And then again, cause increasing pressure or swelling in the brain. People who have had a significant head injury may have infections. A skull fracture or a penetrating wound can tear the layers of protective tissue, the meninges, that surround the brain. An infection of the meninges is called meningitis. We've all heard that before. That is deadly or certainly can be deadly if not treated early on. Blood vessel damage. Well, several small or large blood vessels in the brain may be damaged in a traumatic brain injury. This can lead to stroke, blood clots, or other problems. Other physical complications include headaches. Frequent headaches are very common after a brain injury. They may begin within the week after the injury and can persist for several months. Vertigo is very common in these injuries. People are feeling dizzy. Again, many times, those relatively minor complaints clear up somewhat shortly after an accident, but not always.

And again, every case is different. Every claimant or injured person may or may not subsequently suffer each of these injuries. People may have a general feeling of dizziness or nausea for a few days, and then it clears up. They may have headaches. They may clear up. They may have headaches a week down the road. These are all post-concussive syndromes. And the word concussion is oftentimes used interchangeably with traumatic brain injury. I think the more technical term accepted in the art, in the arts, medically and legally, is the traumatic brain injury. And a concussion is kind of an all encompassing term for that. But people who have post-concussive symptoms are generally released and told to watch out for any number of these signs. And it's very important for us to review the different signs. Because again, you may see a throwaway note in a medical report that will perhaps suggest there was a traumatic brain injury and maybe it's undiagnosed. Maybe the family doctor plays it off or doesn't really focus on on it. And these could be significant medical diagnoses that need to be treated and also significant value drivers. So again, you wanna spot those issues early on.

So, what are some of the other physical complications we need to be well aware of? Well, an injury at the base of the skull can cause damage to the cranial nerves. Now, many of these are obvious to spot and every medical provider will recognize these issues and treat accordingly. But again, they may not always. Paralysis of facial muscles or losing sensation in your face and altered sense of smell or taste, loss of vision or double vision, swallowing problems, dizziness, remember we talked about vertigo, ringing in the ear or hearing loss. Intellectual problems are generally where we see traumatic brain injury claims take their value. Many people who have a significant brain injury will experience change in their thinking, their cognitive skills. Focus may be more challenging. It may take longer to speak or process your thoughts. Brain injuries can result in problems over the wide spectrum of intellectual or cognitive issues. Memory is generally one of the top deficits that we see in folks that have had a significant brain injury. Learning, reasoning, judgment, attention or concentration, these are more executive level problems, but can really have a devastating impact depending on any number of the life choices the person has made. Their work, their career, their recreational activities. Problem solving, multitasking, organization, planning, decision making, beginning a task and then ultimately being able to complete it. There also can be communication problems. Language and communication problems are very common in a traumatic brain injury. These can lead to frustration, conflict and misunderstanding among family members, friends, and even care providers.

Now, some of this is somewhat obvious but it also is important as a legal practitioner to make sure that the people are even able to explain some of these injuries. Think about it. You have a cognitive issue that has impaired your ability to communicate. You may not be communicating that effectively to your medical providers, who may be unaware that this is an issue. Hopefully, family members have noticed changes in behavior and communication, but they may not. You may need, as an outsider during an interview with a potential client, to be the first person to say, "Wow, that seems like someone who is having some challenges understanding me, understanding our retainer agreement, explaining to me how the accident happened." Those kind of things. And the family members may have grown accustomed to this and not really focused on it. So again, as a practice point, you may be able to help spot some of these problems, if in fact the medical providers have not done so or done so effectively. Someone who's had a brain injury may have difficulty understanding speech or writing. They may have difficulty speaking or writing. They can't focus. They can't organize their thoughts or ideas. They can't follow or participate in conversations. They have trouble taking turns in a conversation or speaking and picking a topic. They may have difficulty changing their tone or if someone else changes their tone to pick up subtle differences in meaning. A brain injury patient may have difficulty understanding nonverbal signals. They may have trouble reading cues from listeners. They may have the inability to form words or to capture a word. I've seen that in several of our cases where someone says, "It's on the tip of my tongue." Well, we all have those moments.

But if you've had a brain injury, you may have more of those or you may have to stop and picture the item you wanna talk about, which then allows your brain to process it. But you may have these different challenges in actually moving forward in a communication. You may have difficulty in any of these realms. And again, it's also important to recognize there could be other factors involved too, and we'll talk about those as we move forward, that make brain injuries that much more difficult to diagnose. Again, elderly people are at the greatest risk for traumatic brain injury. But as is common, they may have a host of other unrelated medical issues that are giving them communication difficulty, memory difficulty, focused difficulties. Alzheimer, dementia, autism. There are any number of spectrums of other overlays of cognitive issues that may or may not be related to a brain injury or that may mask a true brain injury. There can be behavioral changes. And again, much of this information will come from love ones and family members. The person who's experienced this injury may or may not recognize it, but family members certainly will. And they can be valuable tremendously important witnesses in documenting behavioral changes and cognitive changes altogether.

But what are some of the behavioral changes to look at? Well, difficulty with self-control, lack of awareness of abilities, risky behavior, difficulty in social situations, verbal or physical outbursts, and emotional changes certainly. Again, family members are the best source of testimony and evidence in this regard, very powerful. Coworkers, certainly, primary care physicians, but people who deal with people every day are the best ones who can recognize something's different now. Depression, anxiety, mood swings, irritability, lack of empathy, anger, and insomnia. Sensory problems, as we had mentioned before, ringing in the ears, difficulty recognizing objects, hand-eye coordination, blind spots, double vision. Bad taste, bad smells, or difficulty smelling. Skin tingling, pain or itching, trouble with balance or dizziness. Now, those are a wide range of sensory issues, communication issues. It can have any number of other factors going on. People may come to an injury with a level of deficit to begin with. But what we're looking for are changes in what was the baseline before the incident, before the accident, before the car accident or the slip and fall and now after. Now, by no means are these always easy to diagnose and establish, but you need to recognize these signs early on and obtain the medical evidence to move forward and litigate those if you need to.

Now, there are degenerative brain injuries and diseases that people experience as a natural part of life, as a natural part of other diseases. It's unclear, still to this day, whether degenerative brain diseases and underlying brain injury are always related, are they connected. The signs and the medical research seems to suggest that a severe brain injury can certainly lead to a risk of degenerative brain disease down the road. But it's very hard on an individual standpoint to say definitively, yes, this brain injury will make you more likely to have Alzheimer's or white matter disease, or dementia, or all of those issues that we hear about. Certainly, our common sense would tell us that seems likely. But from an expert medical standpoint, you need to make sure you have good experts who can either try to make this connection survive to a reasonable degree of medical certainty. And similarly, on the defense side, you may need a really good doctor who can say the state of the art, the state of the research simply will not support the fact that you can say definitively, with any degree of certainty, that this person will be at a greater risk for degenerative brain disease after a brain injury.

What are some of these diseases? Well, as we mentioned, Alzheimer's, Parkinson's, and here is dementia pugilistica, which is really from a career in boxing. A pugilist is a boxer and that's where that comes from. Think almost to Muhammad Ali, some of the deficits he had. Not necessarily that diagnosis, but certainly people who have had repeated head injuries. Just common sense would suggest and much of the research will likely support that there is a connection now, again, on an individual basis. So, many different risk factors, but again, it's something to think about. Well, just as a public service here. How do we avoid, or at least minimize or reduce the risk of brain injury? These are obvious. We don't need to spend much time on them. Seat belts and airbags goes without saying. Car seats are critical. Obviously, don't drink and drive. Helmets are a big one. Certainly, you need to be a well aware of your surroundings. Distracted driving, distracted walking for pedestrians is truly an increasing thing, as we've seen with the advent of cell phones and social media. So again, how much blame can be laid on folks for not paying attention? Well, that's a comparative negligence argument that we always make on the defense side. So again, just as a practice point, you need to know what the people were doing, what steps should they have taken, could they have taken that would've either avoided the accident or minimized their risk to being open for these.

Again, I don't wanna beat a dead horse but it's so valuable to go over these symptoms again. Headache, nausea and vomiting, fatigue or drowsiness, problems with speech, and again, dizziness. If a mild injury happens, well, there could be some sensory symptoms, blurred vision, ringing in the ear, sensitivity to light. That's one we see in almost every brain injury case that I've litigated is a sensitivity to fluorescent lighting, to sunlight, to really bright stimulus from an optical standpoint. That's almost always present. I don't know why that is. But in all the cases I've litigated and I'm currently handling, light sensitivity is almost always a factor. Again, these range from mild, to moderate, to significant. And again, it's just kind of a punch list of items that will help you recognize whether you have this case and whether there is an exposure. Loss of consciousness. No loss of consciousness, but again someone's dazed or confused or disoriented. Memory problems, mood swings, depression or anxiety, sleeping issues. Now, moderate to severe, certainly, as the name implies are much more significant than a mild injury. And they can appear again within the first few hours or the first few days after a head injury. Head aches, vomiting, convulsions. Certainly, these will absolutely trigger a response from the medical professionals. But as you're reading through medical records, whether it's an initial report or ongoing treatment, you want to make sure and see these physical symptoms. Let you know that they're is an issue. Profound confusion, slurred speech, calmness. Well, that's moving them up the scale significantly.

Children and minor claims certainly present a host of other challenges. Children often have certainly verbal limitations and cognitive limitation inherent with their age that make these type of claims that much more difficult to identify and assess and treat. So, little kids can't tell you all of these things, but they can certainly have a traumatic brain injury. Remember, they're one of the most at risk group of potential victims, so to speak. They may experience a change in eating or nursing. They may be irritable, crying. They cannot be consoled. As children get older, again, sleeping habits, seizures. Now, that's an obvious one that's going to get your attention. A change in their ability to pay attention. They may be sad or depressed, drowsy, a loss of interest in toys or activities. Again, thankfully the medical profession has really increased in their focus and training on spotting brain injuries throughout all levels of patient, certainly from adults and elderly people, who are unable to perhaps even communicate, all the way down to children and infants and adolescents.

How do we recognize, at least from a medical perspective, the significance of an injury and how is that captured? This is a real critical part of our talk here today. It's called the Glasgow Coma score and it is the most common scoring system used to describe the level of consciousness in a person following a traumatic brain injury. It's an initial step taken, usually within the first few minutes of an EMT or a paramedic arriving on scene, to at least get a thumbnail sketch, to take an initial measurement of the severity of an acute brain injury. It's simple, reliable, and it has a great correlative factor in how people have an outcome much later after the initial diagnosis. There's tons of research, tons of paperwork, and paper's been written on this. But it was described in 1974 by these two gentlemen as a way to communicate about the level of consciousness of patients with an acute brain injury. It was important certainly before communication was even as easy as it is today for the first responders, the first people on the scene to be able to communicate to the emergency room, to the physicians who were going to continue their spectrum of care. Here's what we saw, initially. Here's when we came upon the patient. This is a snapshot of what we saw.

And the Glasgow Coma score can be done repeatedly. It's non-invasive so there's no harm. And it can be done among different professionals as they move care from an EMT to a paramedic, to an advanced life support crew, all the way into the emergency room. And it helps kind of minimize the risk that someone describing, "Oh, that person was dazed." Well, that may be a much different diagnosis of an impairment that someone else has. So, it's certainly the medical professionals, certainly best way of at least early on kind of taking a snapshot of a person's abilities following a brain injury. There are limitations as we discussed. Drug use, alcohol issues, low blood oxygen, low blood sugar, someone being in shock, or someone already having a host of physical or preexisting mental or cognitive issues can impact the Glasgow Coma score. So, it's not carved in granite but they can lead to an inaccurate score. So, always take those with a grain of salt. But it's just a great way of initially making an observation objectively of someone's level of consciousness.

Well, what is it? Well, it provides a score in the range of three to 15. So, this is a score where the bigger numbers are better. You don't want a low score. The easiest way of certain of trying to remember that is if you're a zero, you're dead. You have no hope of survivability. So if there's any way of remembering it, I mean you certainly wanna do better. Higher numbers are better just like in school, just like on the LSATs or your bar exam. Bigger is better. But a zero is you're done. So, it ranges from three to 15. Patients with a score between three to eight are usually so it to be in a coma. And what it is, again, it's a snapshot. You take the best eye opening score, the best verbal response, and the best motor response. You add those three numbers together and that's how you come up with the Glasgow Coma Scale. There are seminars focused solely for medical providers on this. I certainly don't wanna give anyone the impression that we're giving medical training or medical advice, but it's a really good way of having a snapshot. If you've seen this on ambulance reports, it didn't even used to exist up until a few years ago. It's very common now. Almost every medical record will have a Glasgow Coma score, a GCS. You'll see it in the emergency room records. And it's a very good tool to see early on. Ambulance arrives at the accident scene. Here's their score. By the time they got to the emergency room, it's now improved, hopefully, or it's decreased, sadly. That's not a good development. But here's how they come up with it. And when you see these scores, it'll make sense. Someone has a severe brain injury, a Glasgow Coma score. And again, we call it the scale, but I also use the word score, A score between three and eight is potentially fatal. So, a three is a vegetative state. If it's moderate between nine and 12, there's generally a good chance of recovery. Someone had an injury. They've definitely had some impact, some impairment, but it's the type of injury that generally has a very good chance of recovery. And the maximum score is 15, which is the very best prognosis. So, between a 13 and a 15 is either a very mild injury or perhaps no injury at all. Most of us participating in this seminar currently, absent any other underlying medical issues, should be pretty much at a 15.

So, how are these points assigned? Well, again, it's over a scale of three different evaluations. An eye opening response, spontaneous, and you're blinking, you get a four. If someone says, "Jerry, can you open your eyes?" And you are able to comply with that without any challenges, that's a three. So, someone's eyes may be closed. You're kind of in a daze or you're just a little wiped out from having had a traumatic accident just happen. But if you can open your eyes when someone asks you to or blink, well, that's a three. If someone can only open their eyes in response to pain and not applied to your face, you're not poking someone in the face, that's two points. That's oftentimes a pinch, an elbow pinch, a sternum rub, any other way of kind of giving someone a painful response. And they wake themselves up or they they're able to open their eyes. People with no response are at a one. They're out. You cannot get them to raise their level of consciousness, but you cannot get them to open their eyes. And non-testable, that can be for any number of reasons. There could be severe injury to someone's face, a burn injury, or a really significant physical injury. That just means there's no way that you could ever obtain a result because their eyes are simply unable to cooperate, so to speak.

Verbal response. So, we have the eye opening and a verbal response. Someone's oriented. Person place thing. They know where they are, when they are, who they are, or where they are and what they're doing. There that's five points. Someone might be a little confused, but they're able to answer questions, that results in a four. Inappropriate words. So, that means you ask someone their name and they give you something that's inappropriate. But again, they're words. They're just not coordinated over to what your question was or what your statement was. That's a three point score. Incomprehensible speech. That's two points. Now, again, always remember there's the overlay of drug use, other mental issues that are underlying, cognitive issues, age related issues, drug and alcohol are usually the reason why you may get incomprehensible speech to begin with. No response. Again, that's someone in a coma. Someone who's truly in a vegetative state. Doesn't mean they won't improve, but that just means they were unable to respond to the verbal cue that you were trying to elicit. Again, non-testable. You don't get a point one way or the other, but again, that results in a very low score. And again, that can be for any number of reasons. Someone could have an injury to their face, to their vocal cords, to their wind pipe. But you're unable to get a verbal response because these have such an injury that there's just no way of doing it.

And the final of these three prongs of the Glasgow Coma Scale are motor responses. So, someone is able to obey a command for movement. Wiggle your toes, touch your nose, raise your hand, show me four fingers, show me three fingers. Six points if you're able to do that on command. You're able to have purposeful movement to pain stimulus. So if I pinch someone's elbow and they're able to reach over and swap my hand away, or move their elbow in response, or any type of purposeful movement, that's the key to a painful stimulus, that's a five point. And you can see the motor stuff really has, I don't wanna say a little more weight to it, but it's certainly, you're making sure that the different neurological pathways are up and running, so to speak. Now if someone just withdraws in response to pain, that's four points. But again, it's not purposeful Flexion in response to pain. And there's two different types of posturing. Each one results in a lower pain or a lower score on the Glasgow Coma score. There's decorticate posturing, which is an abnormal posturing. It really shows a severe injury to the brain. You can read the description. There's actually pictures that can accompany this type of score and it makes a little more sense. But it's decorticate and decerebrate and these are abnormal body postures. It's almost like you're frozen and stiff. And depending on which of these you have, you will either be assigned three points or two points. That is not good. That's generally someone who's kind of frozen in place with their toes pointed out, their head and neck arch backwards, their muscles are rigid or tightened. Not good. A suggestion of significant brain injury that result in a very low score on the motor response scale. No movement, no response, again, one point. And non-testable is basically someone who's paralyzed and it's pretty obvious that that's the key.

Children. Again, it's not usually used with children, certainly not in its full form, because children are generally too young to have reliable language skills. There is a pediatric Glasgow Coma score or scale, that is a modification. And it still uses the three tests. EVM, eye, verbal, motor. But the three values are considered separately as well. And again, it has to be modified for children. And it ranges the same way, a three to a 15. A three is a deep coma or death. While the higher number, the better. 15 is fully awake and aware. It's commonly used for children. Again, it does have to be modified. I didn't feel the need to get into that, but again, it follows generally the same pathway as it does for an adult. But, obviously, children can't verbalize and have the same cognitive abilities, so it has to be modified. And if you did the research, certainly, it's very easy to access that information, as to how children are graded. But again, the overall pictures is the same. Again, just as a practice point, you always wanna look at what the Glasgow Coma Scale was for a child or a minor involved in an accident and see if there is any concern there with them having a brain injury.

Now, that's a lot of information. But to tie this back into litigation and the legal practice, why is this all so important? Well, insurance companies understand, they always did, but they certainly understand it even greater levels now that a brain injury case can involve substantial damages, including past and future medical bills, loss of income, and non-economic damages. Now when an insurance company recognizes those red flags are present, they'll respond accordingly. They certainly may fight harder because they recognize there's just a bigger exposure to damages. As a general rule, each case, however, is fact specific and depended on many different types of factors, of the mechanism of the injury. Did a drunk driver go through a red light and hit your client? Or did your client have a skiing injury because they were skiing on a slope that was beyond their ability and the ski mountain, who you may want to sue, truly had no way of, of policing against the risky behavior taken by your client. Much different dynamic involved. And again, Quimbee certainly offers a host of personal injury seminars from the perspective of all sides. But that's what we're trying to get there, it's very fact specific.

A brain injury for a blameless party can be much more valuable than a brain injury for someone who perhaps has a comparative component that needs to get addressed. Well, how do you do this and what can you expect? Well, early on, you need to get the ambulance records, the medical records, the police reports, the first responder records. You wanna take statements from witnesses or make sure that those statements are preserved. You wanna take scene photographs, vehicle photographs, any videos that you can. And again, you may not take them. You're the attorney. You wanna make sure that if they exist, they're preserved. One of the worst comments that we ever have is, "Oh, I took video and pictures. Well, that was on a cell phone from two years ago. It's long gone." Not good. If you're retained early on, make sure you either collect that information directly from the parties involved. Send out preservation letters early on to make sure that whatever documentation there is of the incident, it's preserved and collected. And you have the ability to analyze it and review it down the road. You wanna check the emergency room and ambulance records for the Glasgow Coma Scale. You'll generally see that on the reports now. So, make sure it's there. If it's not, that might be substance that can be examined in a deposition.

In the correct case, you wanna get experts involved early on. And trust me, insurance companies will do that. So if you represent someone with these injuries, it's critical that you retain experts early on, and these can be the whole gamut. These can be life care experts, neurologists, economists, mental health professionals, cognitive psychiatric or psychological experts. On the defense side, you want to perhaps consider social media investigations and sweeps as early as possible. And again, the insurance companies are going to do that. So, it's critical for you to counsel your clients accordingly. What damages can you look at? Well, the damages can get big very quickly, depending on the person's age and condition. But you are looking at current and future medical expenses, such as potential surgery, hospitalization, hospital rehab, inpatient rehab, subacute and postacute rehab. Some of the numbers here are just taken from averages provided in different websites, but they are significant. Out patient therapy, skilled nursing, assisted living in the right case, counseling, suicide prevention, prescription medication treatments. And again, the worry there is an overuse, or an abuse, or an overdose. Treatment may be provided by a really comprehensive team of care providers, physical therapists, speech therapists, occupational therapists, neuropsychologists, social workers, rehabilitation nurses, and physiatrists.

 Depending on your unique plaintiff and the injuries, you may have lost wages. Economic damages are very powerful because they're basic numbers. They're not warm and fuzzy, pain and suffering type arguments. They're boardable damages that any jury can understand. So, you need to certainly take a look at your client's age and life expectancy, their occupation and education, their professional qualifications and skills, the physical requirements of the job they are now doing and perhaps unable to do.

What is their post-injury earning capacity? What benefits are they losing? Pension contributions, union benefits, union seniority, that's a big one, health insurance, any number of fringe benefits that they are no longer getting, because they're unable to work. In addition to the lost wages and the lost earnings capacity, brain injury settlements can include other financial losses, vocational training, retraining, modifications to a person's home or their vehicle. They may now need to have a much different level home. They may not be able to function in a two story home or they may need a walk-in tub. They may need lowered cabinets to accommodate wheelchairs. They may need an entirely new home, similarly with a car. If the person has significant cognitive problems, they may need a wheelchair accessible van or car. They may need to have domestic services brought in, housekeeping, companionship, either when they're recovering or perhaps permanently.

And, of course, the noneconomic losses. Pain and suffering, mental anguish, emotional distress, loss of enjoyment of life, loss of consortium, the loss of companionship of a spouse. Your state, your jurisdiction will easily define what damages are available to which level of claimant and the claimant's family. But these are the items that can be so critical in a brain injury case. And sometimes, they're a little harder to quantify. They're not black and white dollar figure damages, but the ground game in these is oftentimes the impairment that the person has. They may still be able to go to work. They may still be able to drive a car. But they're unable to read. They're unable to process. They're unable to have social interactions like they did. They may have to depression and anxiety. All of these factors can layer into a very value driven case. Again, as we mentioned at the very outset, there may be an increased risk of dementia. The items here talk about, again, these are overall numbers, a 2.3 time higher risk of dementia and a four and a half times greater risk after a severe traumatic brain injury. These can develop decades after the incident. Again, they're very fact specific. So, these percentages are accurate but they tend to be incredibly fact specific about the person's prior health, their prior lifestyle choices, and any number of issues.

Now, there's also an increased risk of mental illness. It can expand exponentially. Bipolar disorder, schizophrenia, depression, and post-traumatic stress. There can be an increased risk of chronic headaches and migraine headaches. Substance abuse. And remember, we mentioned prescription overdoses or prescription medication abuse. It doesn't have to be prescription. It can certainly illicit substances. Alcoholism. But again, these can be layers that can be added into damages. And depending on your jurisdiction, many of these damages are likely recoverable if you can connect them medically with expert testimony.

And you may also find your client is at now a higher risk of an additional concussions and the dangerous effect of multiple concussions. That can sometimes be a very big factor, right? The person has already had a significant brain injury, they've recovered. But now they're an eggshell plaintiff. so to speak, where their bigger worry is now what happens if I get another incident. You've now made me much more susceptible to problems than I ever was to begin with. Those are all reasonable measures of damages that may or may not be able to be proven. You will need expert medical testimony and neurological cognitive testimony in order for that to be connected and then compensable, depending on the unique facts of your case. But it's critical that you recognize early on that these may be measures of damages. And in the correct case, you will want to do everything you can to litigate on behalf of your client and obtain this level of damage.

With that, we're at our end. And just from a very brief overview, I hope we've been valuable in helping you identify this information early on, meeting with your clients, gathering firsthand the information, alerting your client and their family members to this potential layer of damage. Recognizing, either directly in speaking with your client or their family and by reviewing the ambulance records, the EMT records, the first responder records, all the way through to the emergency room and the subsequent care records what impact this injury has had on people.

From there, as you're reading the records, I hope we've given you a very good map of the different types of injuries and sequelae, the complications people may be having from a brain injury, both the physical, the cognitive, the emotional, the psychological. So as you read records, keep an eye out for any of these red flags, any of these issue spotting injuries or complications that may be all related to the initial brain injury suffered by your client. They are bigger cases. If you know what you're doing, you can recognize these cases and litigate them properly. You wanna involve medical professionals and other experts early on. And again, as is always the case, if you don't what you're doing or you feel you have a case that is more significant than you're comfortable with, make sure you involve experienced counsel and experienced practitioners early on. So as to maximize your case and also prevent any ethical issues on your end. You don't want to mess up these cases. They're very valuable in the right circumstances.

With that, I thank you for your time and attention. Certainly if you have any questions, please feel free to reach out to me directly. But with that, good luck, stay safe and healthy, and I look forward to chatting again. Thank you.

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1h 4m 43s

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