Brain Damage Blog

One of the absolute cornerstone’s to my belief system as a brain injury advocate, is that brain damage is not an immediate occurrence but part of a complex and multi-factorial process that occurs not just over minutes, but as much as 24-72 hours after the trauma. This is an issue I can almost always get defense experts to admit, but not always within the type of trauma I represent people, concussions from fall and car wrecks. Last week I was blogging on the good and the bad of the huge influx of new brain injury research coming out of Iraq, but today’s new release is clearly all positive.

In research summarized at http://www.jhu.edu/~jhumag/0208web/wholly.html#apl researchers at Johns Hopkins are saying that “Blast exposure, especially repeated exposure, can cause brain damage so subtle that soldiers may not realize they’ve been wounded. Ibolja Cernak, director of the Biomedicine Business Area at the Applied Physics Laboratory, says that these mild brain injuries can lead to gradual neurodegeneration, similar to Alzheimer’s disease.

The main researcher on this work is Ibolja Cernak, director of the Biomedicine Business Area at the Applied Physics Laboratory, at Johns Hopkins.

While there has been little controversy that blasts can cause brain damage, even without a direct blow to the head, presumably from the rapid jostling of the brain matter, inside of the skull. The Johns Hopkins story explains:

“The prevailing argument has been that waves of compressed air emanating from the blast shake the skull with enough force to strain or stretch the brain, not unlike what happens in a bad car crash. ‘It’s like a turbo-charged whiplash,” says Ross Bullock, a professor in the Department of Neurological Surgery at the University of Miami.”

But Cernak’s research posits that the blast energy is transferred in waves to the large blood vessels, which bring blood to the brain. She claims that the drastic pressure changes and rushes of blood thru these vessels from the blast, then damage the small vessels within the brain and the adjacent tissue. While not clearly more complex, analogize this to getting a bloody nose, following a series of violent sneezes.

There clearly is historical evidence to support this as an additive theory as to how the brain gets injured in combat. One of the frustrating things about modern brain injury research, is that it is done with so little historical perspective on what was known about brain damage from what I would call the “collective common sense” of centuries of working with people who were “quite right in the head” after combat. The whole concept of shell shock evolved not just because soldiers were injured by the enemies shells, but also were exposed to brain damage, from being on the sending end of shelling. Sailors on British ships of the line, were known to be at risk of getting funny, if allowed to work below deck for too long.

I once started a lecture with this joke: the most important thing to being a brain injury lawyer, is learning how to type neuro.

It sometimes feels to me, and I am sure as often to the readers of my various web pages, that there are just too many specialities with the word neuro in them. I sometimes have a hard time sorting out the neuro this’s from the neuro thats. Sometimes the specialities can’t even agree on how to spell their speciality. Take for example, the neurootologists, who are specialists in the vestibular system. The same peer reviewed literature will spell the word: neuro-otologist, neurootologist (my preferred spelling) and neurotologists.

Any way, here is my “frontal lobe test” for myself: Name all of the neuro docs I can type in 30 seconds:

neurologist
neuropsychologist
neurootologist
neuroradiologist

If you gave me extra time, I would add… neurosurgeon, neuropsychiatrist, neurobehavioral scientist, and neurolawyer. But I am not sure that the last two are in the actual book (if there were one.)

Neurologist. Most people understand what a neurologist is – a medical doctor who specializes in the neurological system. Most people interested in brain injury don’t understand that the study of neurology is so broad that brain injury only makes up about 1% of what these doctors do. To improve your odds, try to find a “behavioral neurologist.”

Neuropsychologists – these are not medical doctors, but psychologists, who at their best are neurobehaviorists, and at their worst, are test administers, who will take the concept of lieing with statistics to obscene proportions. Neuropsychology is fundamentally based upon the theory that brain pathologies, even though they cannot be directly seen in live subjects, leave behind patterns of behavior that can pinpoint where the pathology is. In its most basic form, it is based on written tests, which will show a pattern of results, where the areas of the brain affected by the pathology, will cause the test subject to do abnormally worse on the test. But any neuropsychologist worth your time, will clearly realize that the role of neuropsychology is not to administer and interpret tests, but to do a full “neuropsychological assessement” that is not a statistical process, but an analysis of all of the “footprints of pathology”, that the written test patterns, are only a small proportion of. In the coming days, I will devote an entire blog (or perhaps series of blogs) to neuropsychology, the hope of my youth as a plaintiff’s lawyer, and the bain of my maturity as one. For more on my theory of the “footprints of pathology”, click here.

Neurootologists are doctors who specialize in the vestibular system, the remarkable and complex way in which your inner ear provides the body with a gyroscope. For more on the vestibular system, click here. Some of the best neurootologists are the ones that started as neurologists, and became more specialized in the disorders of balance and vertigo, but EMT doctors who did a fellowship in the vestibular system qualify as neurootologists as well.

Neuroradiologists are radiologists who specialize in the brain and spine. Radiologists are doctors who specialize in reading diagnostic tests such as XRay, CT scans and MRI. Most of the work of the modern neuroradiologist is in CT and especially high field strength MRI. For more on neuroradiology, click here.

Neurosurgeons are surgeons who do brain and spinal surgery.

Neuropsychiatrists are psychiatrists who cross over into the field of neurology and neurobehavior, where there is an interplay between emotional/psychiatric disease and organic processes within the brain. The irony of course in that definition is that it should apply to all brain specialties, as it is “all in the head”. Again, a topic for a blog of its own, more properly a book of its own.

Neurobehavioral scientist is somewhat my own term. I think it is the role that neuropsychologists should play, on an increasing level. The most important “footprint of pathology” is the change in a person’s behavior, and particularly that change in behavior in the real world. The problem with neurobehavioral science, is that it doesn’t reduce itself to statistical analysis, doesn’t make for definitive research studies and requires subjective analysis. Well, the reason these doctors went to school for all these years, is that they could use subjective judgment to make complicated diagnosis. The human mind is far too complex to diagnose the interplay between organic pathology and emotions, without subjective judgments of trained and experienced professionals. If you doctor is not a neurobehavioral scientist, you have the wrong doctor.

Neurolawyer? There is no such specialization, at least not a recognized one. I consider myself to be a neurobehavioral expert, but not a medical expert, nor a psychological one. I work almost exclusively in the field of brain damage, and have learned from and challenged the best medical/psychological minds in the country with my inquiries, questions and depositions. But most of what I have learned has been from you – the survivors of brain injury and the family members of those survivors. I keep learning, I keep writing, I keep asking the tough questions, the questions that because I cannot be pigeon holed into any of the above specialities, often are questions that require thought, and hopefully research to answer.

I first wrote the an essay on this topic in 1997, and my list has remained mostly unchanged since: http://tbilaw.com/essays/choiceoflawyer.html I still think these questions which are listed below are good questions to start with. But of course, one could argue that those questions were self serving then, as I of course fit all such criteria. I hope I am no less qualified today, but my perspective on things has changed, with more than 100 brain injury cases settled or tried to verdict.

In too many cases, this was a lawyer who had TV ads that told about how much he could recover, with no substance. Way too many times, the lawyers staff knew little or nothing about brain injury. There are undoubtedly great TBI lawyers out there who I do not know of. But a few questions from you should be able to give you a good idea of whether this attorney is involved in the brain injury field.

This is my suggested list of questions:

1. What brain injury seminars has he or she attended?

2. At what brain injury seminars has he or she spoken?

3. Is he or she a member, and check this out, of your state brain injury association?

4. What service and financial contributions has he or she made to their state brain injury association?

5. What trial lawyer groups that deal with brain injury, is he or she a member of?

6. Do they have the kind of knowledge about brain injury that you have found on these webpages?

But my perspective on these issues has changed some over time. A simple list of questions will only point you in the right direction. Doing the best you can for a brain injured client is as much to do with how competent you are in dueling with the misdirection of Defense hired brain injury experts, as how much time you spend with advocacy groups. My current advocacy project is a “For Plaintiff Lawyers Only” web page, which shares many of the hard lessons I have learned over the years in my battles with deceitful Defense experts. Topics on such page will include the experts a plaintiff lawyer must retain, the interplay of medical and economic experts, understanding the advances in neuro-imaging, understanding the vestibular system and understanding the art and the science of neuropsychology.

The medical part of these pages will detail the role played by the neurologist and or other diagnosing M.D. The neuroimaging portions will discuss improvements in field strength, the relevancy of new pathologies identified on the stronger 3 Tesla MRI’s, diffusion tensor imaging (DTI) and the role for tailored protocols in the forensic evaluation process.

The most difficult to tackle (and the reason these pages are still under construction) are the pages that deal with neuropsychology. The role of neuropsychology has changed as neuroimaging has improved, and defense paid for research has exagerated the role of so called “malingering” and “somatoform disorders.” One portion of this page will be devoted exclusively to what I call “MMPI abuse”, the improper use of the MMPI to label people with legitimate medical problems, as people suffering from psychiatric disease.

When completed these pages will included detailed deposition excerpts taken from actual cases which demonstrate the issues discussed and the knowledge that plaintiff counsel must have to beat back the Defense efforts at misdirection. When completed, they will be available only to plaintiff counsel, on a password restricted basis, with only those lawyers willing to sign an affidavit that they do exclusively plaintiff work, being allowed access.

In the meantime, I continue to be available to any plaintiff lawyer who needs help, both in terms of the general information contained on our seminal web pages http://tbilaw.com http://subtlebraininjury.com and http:waiting.com and thru formal or informal consulting. I learned as soon as I first uploaded http://tbilaw.com in 1996, that my capacity to help brain injured people would be leveraged many times, were I allowed to work with other lawyers, to help on multiple brain injury cases. I have continued to devote as much of my practice to co-counseling cases with other lawyers as to those where I am the primary lawyer involved. If you read this and feel that you or your lawyer would be benefit from our assistance, please ask your lawyer to call us at 800-992-9447.

I got this email exchange this week, about something I wrote more than a decade ago:

Is this a typo?

http://www.waiting.com/recoveryexpect.html
A so-called “mild” brain injury may result in substantial deficits which may affect a person’s life permanently, while a person who has suffered a “severe” brain injury may be able to return to a life that is, while not identical to, close to the one they had before the accident.

I answered this email as follows:

No, I don’t think it was a typo. What did you think was the mistake?

That sometimes people with mild injuries can have worse results than someone with a severe injury?

Attorney Gordon Johnson

I got this response back:

Yes, the MILD = worse recovery than SEVERE. Its not something I wanted to hear I guess. My sister was diagnosed with Diffuse Axonal Injury. I guess even though there is no visible damage there is the possibility that more of her brain was actually damaged in comparison to a blunt force. Thank you for your help. Your site has been informative and I am sure it will be a tool we use going foreword.

Today, this news story came across the wire.

Assault and Battery – Florida
Man gets $12.8M for punch that resulted in severe head injury

A jury awarded $12.8 million to a man who nearly died after he was punched in the head at the University of Florida. In 2003, Brandon McArthur, then an 18-year-old baseball player at the school, was struck by Jonathan Head just outside a bar and grill on University Avenue. The attack was unprovoked and without warning. Head pleaded no contest to assault charges, but didn’t appear at the civil trial. McArthur sustained a severe head injury that required surgeries to remove blood clots and relieve presssure on the brain. He was injured when his head struck the sidewalk several times during a grand mal seizure. He remained in the hospital for about a month. He eventually recovered and was able to continue playing college baseball.

That someone got a substantial reward is wonderful, and the lawyer involved should be greatly congratulated. But what struck me about the story was the part in boldface, He eventually recovered and was able to continue playing college baseball.

I had a friend, who was a survivor of a severe brain injury, who rose to a leadership role in the Brain Injury Association, both on the national and state level. I was new to this field when I met her, and I have never forgotten a statement she said: “You know the goal of brain injury rehab is to get severe brain injury survivors to the level of mild brain injury survivors. ” This was the first time I ever thought about this issue, but in my experience, too often the lines of recovery don’t start to run parallel near each other, they cross over in opposite directions. My theory is that severe brain damage, that does also involve diffuse damage, is easier to rehabilitate, because the brain’s capacity for plasticity gives us something to focus on in rehab. On the other hand, mild injury, which often involves significant but not visible injury to the brain’s connective communication network, is hard to pinpoint and even harder to rewire.

A good example which many people will understand: a small electical fire will often completely total a car, because of the difficulty in rewiring an entire car. A high speed front end collision, will often not, because those parts are on the surface and easy to repair or replace.

The other lesson from today’s news story, is you cannot base brain research on the pattern of recovery of young jocks. They just do better in terms of recovery. Far too much of our research, our brain modeling is done based on what we learned about young jocks. They survive much better than do 40 something women. Basic fact. When they start studying 40 something women, then we will learn something about mild brain damage. See http://youtube.com/watch?v=E2Tml2QaSEM

Watch for my coming blog on the good and the bad about basing the next generations brain injury research on Iraq war injuries.

Is it really so unreasonable to expect someone who is working in an Emergency Room, to know a few simple things about concussion and amnesia.

Here is what it says in the medical record I am reviewing now, a record from an emergency room, three days post accident:

“This patient was involved in an accident in a different state. She was evaluated at an ED (emergency department) near the scene of the accident, that is not as full service as our facility. Because of ongoing complaints, she and her husband present here for evaluation.”

OK, so what were the complaints? Did you ask her about her memory? Did you make any attempt to document whether she had amnesia?

I have a series of videos on amnesia and concussion, which I call the Concussion Clinics. Everything in those videos is based upon clear cut medical theory and common sense. Yet, no one invites me to speak at medical schools. I don’t do in-services at hospitals. Why would they? I am only a lawyer. What do I know about medicine? Sadly, infinitely more than the doctor who wrote that report. The only impact I can hope to have on medical professionals is asking tough questions of doctors in depositions and the words I write on blogs and web pages like this.

DAMN IT ALL DOCTORS. LEARN SOMETHING ABOUT HOW TO DOCUMENT AMNESIA. Ask the patient (or the person who brought them back to the ER) about what they remember between 5 minutes after the accident, and the NOW. Almost everyone will remember the accident – it is called adrenaline. It helps with memory. But do they remember the ambulance ride? The intake person? Describe one other person in the waiting room?

And when you are done, don’t refer the concussed to some indefinite family physician for a follow-up. Give them the same care you would if they were quarterbacking your football team. Have the patient come back to see you tomorrow and see if there is any change, and every day until it is clear that they are better. If they aren’t better, continue to document the specific complaints and then the referral to the next doctor will carry with it the presumption that there really is something wrong, not that this is a person with some fundamental psychological flaw. One simple example of amnesia would make justice so much easier to obtain.

“It isn’t fair, I got hurt, what do you mean you don’t want my case?”

I wish I could help everyone. I feel bad when I can’t. A million concussions a year in this country, conservatively 150,000 people disabled as a result. That would make me a very busy man. I am not that busy. I would like more cases. I would take your case if I could help you.

But, I can only represent someone whose concussion or brain damage was caused by the WRONGFUL CONDUCT of someone else, wrongful conduct that is insured or done by someone with a whole lot of money. If there is a major lawsuit, you can presume that there is insurance, unless it is a company that is listed on the NY Stock Exchange. No one is suing Mrs. Jones or the neighborhood hardware store unless there is insurance.

But, not only must an injury be done by someone’s wrongful conduct, it is wrongful conduct that I can PROVE happened. When you get hurt in a commercial establishment, there is a time honored opportunity to make an “incident report.” All insurance companies, and places like a Walmart, will require an “incident report” any time that someone reports an injury on their premises. When done promptly, that is at least the threshold of the kind of “proof” that a lawyer needs to make a lawsuit possible. Without the “incident” report, the insurance adjuster’s professional skepticism and the jury’s natural skepticism will increase the degree of difficulty of settling or winning, so much, that no lawyer make take the case.

I realize that putting this information on a blog may be pointless. If you got hurt, and you didn’t file an incident report at the time, it isn’t going to do you a lot of good to do it now. But it is very frustrating to both myself and a client, to have to say it when a client calls. If you got into a car wreck and didn’t call the police, you probably won’t have a case most lawyers will take. Most people understand that. The incident report is the equivalent to the accident report.

There is an old saying – that in a products liability case (where a defective product causes the injury) there is no products case, without the product. When a car defect (like a tire) causes a wreck, and the car isn’t preserved, there is no case. Likewise with any other product defect. It isn’t fair. It isn’t just. It is just the truth.

In a premises liability case, there is no case without the incident report, a report done immediately after the accident. The only substitute would be eye witness accounts from bystanders who can describe exactly what happened. Sadly, the people who don’t file incident reports, don’t get witnesses names either.

The sad, but unavoidable irony of this is: If you are concussed, you may not be thinking straight. You may not understand the severity of the injury you suffered. That explains you not reporting the injury. But it doesn’t make the lawyers fundamental job of proving that your injury was caused by the wrongful conduct of others, any easier.