Brain Injury Awareness Month: Further Exploring the Legal Side of TBI
With an injury that can be proven such as broken bones, herniated disks, Spinal Cord Injury, or any number of other injuries visible either from the victim or through their diagnostic imaging, the road to recovering damages has fewer twists and turns. With these injuries, the judge and the insurance company can more readily see these often catastrophic outcomes (amputations, broken bones, disfigurement, burns, the need for a wheelchair or cain) and can rule on damages to be awarded accordingly.
When it comes to practicing Personal Injury Law, lawyers are frequently met with orthopedic injuries–sometimes on a daily or weekly basis–and these injuries make up the basis of cases that less experienced, or non-Board Certified lawyers will see throughout their careers. More experienced, Board Certified lawyers see more complex cases come through their firms more often; this is the type of lawyer a client wants representing them, because their level of experience is unmatched by younger or less experienced lawyers.
Orthopedic injuries, while not always straight forward, are usually visible and presented during trial through MRI, X-ray, or the victim being present in court themselves, should the case end up going to trial. Proving an orthopedic-related injury, while not easier per se (every case requires adequate preparation), often provides the burden of proof necessary to recover financial compensation right off the bat. These “visible” injuries are sustained in car accidents, work-related accidents, slip and fall accidents, and motorcycle accidents to name a few.
When it comes to Traumatic Brain Injuries, everything changes, and that means a lawyer must be prepared and have seen similar cases to verdict with successful outcomes. This is because more often than not, a TBI cannot be seen by a judge, or the insurance company that may be present, and therefore requires added preparation (and therefore experience) for trial that other litigation may not always necessitate.
Within this writeup, we’ll address the following topics:
- “The book of the client’s life”
- Why call in expert witnesses during trial?
- Who is considered an expert witness?
- The importance of experienced legal representation
“The book of the client’s life”
When it comes to brain injury, one of the important things to have access to is the right experts. Having experts able to testify on behalf of the victim on board the legal team can provide the lawyer with much needed evidence should the case go to trial. For this reason, it’s extremely important that a client provide their lawyer with “the book of their life”. What, exactly does that entail one might ask? This “book” should include:
- All doctors seen in the last 10 years (or as many as the client is able to remember)
- All surgeries, procedures, and therapies that the client has undergone prior to and after the accident
- All prior injuries, illnesses, or accidents the client has sustained before and after the accident
With this information on hand, the lawyer can proceed with “discovery” and obtain any and all medical records necessary to try the case either in trial, or present the case elsewhere such as in a mediation, where a settlement may be more easily reached.
When the client provides their lawyer with the necessary information and remains honest and credible throughout the legal process they give their case a better chance of reaching a resolution that’s most favorable to them. This is especially important in Traumatic Brain Injury cases, where much of the testimony must be provided based on what the client feels and experiences, rather than what a jury is able to see. The client’s credible testimony will then be supported by a team of experienced doctors, mental health professionals, and therapists. These are what’s known as expert witnesses. Expert witnesses can provide a strong support system for the lawyer and may be called at any time throughout the duration of the case.
Why call in expert witnesses during trial?
An expert witness may speak to the credibility of the client during:
- Deposition (the process of providing sworn evidence in a legal case; for further reading, read our new writeup detailing everything our readers need to know about depositions Deposition, Mediation, Litigation: What Do They Mean For Your Case?)
- Trial, if the case reaches the point that a settlement cannot be reached without one (for more information on this subject, read The Top 3 Reasons Accident Lawyers Take Cases to Trial)
Who is considered an expert witness?
Now, let’s take a brief look at the trained professionals that may be called upon to join the legal team as expert witnesses to provide testimony on behalf of an accident victim:
- A radiologist: A radiologist has a medical degree in the science of diagnostic imaging; this includes imaging such as simple X-Rays taken in the Emergency Room, more complex CT Scans or MRI (magnetic resonance imaging) taken while a patient was being treated in the hospital, receiving treatment after an accident. It’s the radiologist who reads the scans and reports all their findings (unbiasedly) to the patient’s medical team. What’s seen in a scan cannot be disputed by the defense, as it is visually able to be explained by an expert witness who presents it. Scans during litigation are invaluable.
- Mental health professionals: mental health professionals are any specialists in the field of psychology, psychiatry, or mental health. These professionals usually also include social workers and others who can speak to the nature of the victim’s emotional impairments following a brain injury (mental anguish, PTSD, flashbacks to the accident). In a Traumatic Brain Injury case, it’s necessary not only to prove that the victim has suffered severe medical trauma, but that their mental health and emotional well-being were also drastically affected.
- A neurologist: when it comes to Traumatic Brain Injury, this specialist is the most important medical professional on a victim’s care team. After a brain injury, the neurologist should be considered the lead physician on the patient’s care team. When making diagnoses and consulting directly with the patient’s retained legal counsel, their testimony on behalf of the brain-injured client is priceless. A neurologist is the only expert witness able to prove to the judge and jury that the patient has suffered life-threatening injuries–even though they cannot be seen when looking at the victim in person or in photographs. This doctor is the one who will speak candidly to the nature of the patient’s cognitive function, their symptoms (dizziness, blurred vision, nerve damage, vision disturbances), and how these complications have changed their life negatively.
The importance of experienced legal representation
Even with everything we’ve presented in this article, and in previous articles, it’s the insurance companies hope that victims will give up and forfeit their right to a lawsuit. The game of Deny, Delay, Don’t Pay deters many accident victims from seeking legal representation to obtain the compensation they deserve. Insurance companies give beneficiaries the runaround, play games, and wait until victims simply exceed the Statute of Limitations on their case. Without legal representation, victims may not know they have rights despite having an injury; whether that injury is visible or not. In truth, they do have rights, and they should seek experienced legal representation as quickly as possible following an accident.
That’s why, as we always stress on the Shaked Law Resource, it’s important for a lawyer to fight aggressively, passionately, and with due diligence for their client until the very end–all the way to trial if necessary. No victim that sustains a brain injury due to an accident for which they weren’t at-fault should ever suffer in silence.