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The Personal Injury Perspective on Traumatic Brain Injury

The Personal Injury Perspective on Traumatic Brain Injury

When it comes to the nuanced specialty of Personal Injury law, most lawyers are prepared to try any and all orthopedic injuries; this is because they’re visible, thus able to be proven to the insurance company or a judge during trial. However, the same can’t be said for Traumatic Brain Injury cases. Many lawyers, while experienced in the standard practice of Personal Injury law, are not equipped to handle the complexities of a TBI case. This article will seek to provide our readers with an in-depth look at why only the most experienced lawyers should represent brain injury cases.

“Invisible injuries”: a traumatic brain injury case is more than meets the eye

Within the specialized practice of Personal Injury law, lawyers are most frequently met with orthopedic injuries. What, exactly, can be considered an orthopedic injury? These injuries happen after an accident and usually involve, the arms, legs, neck, back, or all four areas. These are injuries the lawyer can see, so he or she is able to show them to a jury when making their case in court. For example, if an accident or medical malpractice caused a client to suffer an amputation of an arm or leg, during trial a judge would be able to visibly recognize the loss of quality of life the victim has sustained. Due to their visibility, a judge and jury can see these often catastrophic injuries (amputations, paralysis, broken bones) and can distribute damages fairly.

Unfortunately, this is not the case with Traumatic Brain Injury claims. More often than not, a brain injury cannot be seen and therefore a victim’s legal representation must be able to properly support their case using methods other than presenting a physical picture of what one might consider an “injured” client to the judge (many TBI cases go to trial, but each case is different).

When it comes to TBI, the victim may have no trouble speaking when questioned and appear physically unharmed, especially if they’re able to walk into the courtroom seemingly uninjured (an inexperienced “paper pusher”, or younger lawyer may be overwhelmed by this “roadblock”). That’s why for a lawyer that lacks trial experience or hasn’t had many successful outcomes, this can be the thing that ruins their case or sometimes, even their credibility at trial because it’s absolutely untrue! A victim who has suffered TBI can appear fine, physically on the outside, but because TBI occurs deep in the brain, they may still have multiple injuries and their quality of life will have been severely diminished.

We’ve listed some, although not an exhaustive list, of injuries that occur due to TBI below:

  • Headaches
  • Dizziness
  • Trouble focusing
  • Trouble concentrating on tasks
  • Hand and/or leg tremors
  • Eye pain
  • Loss of vision
  • Hearing deficits
  • Memory loss

An experienced lawyer, such as a Board Certified civil trial lawyer, will know that experts in the field of accident recreation, neurology, psychology, and radiology all must present their findings in the form of X-rays, MRI, CT scans, and accident recreation models. Their findings are what’s known as expert testimony. Expert testimony is defined as: 

Expert testimony is the testimony made by a qualified person about a scientific, technical, or professional issue. An expert is often called upon to testify due to his/her familiarity with the subject or special training in the field.

Expert testimony can back a victim’s claim of pain and suffering, and help to further prove that they were injured by the negligence of another. It is exceptionally helpful in traumatic brain injury cases, due to the “invisible” nature of the injury itself. While a lawyer can argue on behalf of their client, what the judge and jury want to see is proof; evidence that the damages to be awarded are warranted and that the victim has truly been seriously bodily injured irreparably.

Experienced accident lawyers prepare for everything

When it comes to a brain injury, it’s important to have not only the right experts on board to better assist the lawyer in doing everything possible to recover compensation for the client, but to have other preparations in place, too. These preparations can include accident recreation, demonstrative aides, and models ready for presentation during litigation. Whether litigation takes place in the form of mediation or trial, these preparations are always important.

As we always stress here on The Law Resource, an experienced Personal Injury lawyer knows that the client, not the compensation, comes first. A client may be injured, suffering debilitating physical and mental injuries, and has more than likely spent a prolonged period of time out of work. This “pause button” on their life can mean medical bills and living expenses piling up by the day.

Assembling the right legal, medical teams after an accident

Aside from an LOP granted to the client by their lawyer in certain instances (remember: each case is different) in order to obtain medical care during an especially lengthy legal process, what–or who–else should be on board the Personal Injury legal team of experts? We’ve provided several examples below.

  • The radiologist: A radiologist has a medical degree in obtaining and reading diagnostic imaging. This could be anything from a simple X-Ray taken in the ER, to a more complex CT Scan or MRI taken while the victim was inpatient receiving treatment after an accident. Regardless of the imaging study performed, it’s the radiologist who reads the scans and reports their findings to the patient’s medical team.
  • The neurologist: inarguably the most important medical professional on a victim’s care team after a brain injury. The neurologist should be considered the captain of the patient’s ship, making diagnoses and consulting directly with the patient’s retained legal counsel. A neurologist, as an expert witness in court, can prove the patient has suffered irreparable injury even though it cannot be visualized by the judge or jury. This doctor can speak to the nature of the patient’s processing, their symptoms (dizziness, blurred vision, and migraines), and how these things have altered their life for the worse.
  • Mental health professionals: mental health professionals are any professionals in the field of psychology, psychiatry, and mental health therapy. These type of professionals can also include social workers and others who can speak to the nature of the victim’s cognitive impairments following a brain injury. In a brain injury case, it’s important not only to prove that the victim has suffered a medical trauma, but that their mental health and cognitive function (and their ability to process) were dramatically affected as well.

The lawyer can’t do it alone!

The personal injury lawyer is at the forefront of a victim’s lawsuit, but it doesn’t mean he or she is able to thoroughly prove their case in court without a confident, experienced team on board to assist them in obtaining the compensation their injured client deserves. Due to the nature of brain injury cases, it’s important for the personal injury lawyer to work closely with the team of experts to fully establish the victim’s pain and suffering. An inexperienced lawyer can lose a case by forgetting, or being unaware to begin with, that these “invisible” injuries are not cut and dry.

The insurance companies are hoping that victims will give up and forfeit their right to a lawsuit after sustaining a Traumatic Brain Injury; that they’ll exceed the Statute of Limitations on their case and won’t attempt to obtain compensation for an “invisible” injury that no one can see. That’s why it’s of utmost importance for a lawyer to fight aggressively, passionately, and with due diligence on behalf of the client. No one whose suffered a brain injury due to an accident that wasn’t their fault should ever suffer in silence, thinking that because their injuries cannot be seen, they aren’t entitled to financial recourse. That’s simply not true! TBI victims and their families have rights, and they deserve to heal, and to be financially compensated for all they’ve lost.

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