Brain Injury Attorney

Fairfax Injury Lawyer Brien Roche Addresses Brain Injury Cases

Brien Roche

Brien Roche is an experienced brain injury lawyer serving all of Northern Virginia, including Fairfax, McLean, Vienna, Burke, Annandale, Falls Church Reston, Centreville, Manassas, Alexandria, Herndon, Arlington, and Loudoun County. Call or contact us for a free consult.

Auto accidents, falls, industrial accidents, physical assaults, hypoxia, sports injuries are all causes of brain injury. Most brain injury cases involve what is called a “closed head injury”.  In other words, there is not an actual skull fracture.   A common diagnosis following a brain injury is post-concussion syndrome.  Brain injuries are mild, moderate or severe.  A brain injury can have lifelong consequences. If you or a loved one has such an injury, you need aggressive and skilled representation. That attorney must recognize the symptoms of brain injury and identify the scope of the injury. Call or contact us for a free consult. For info on proving damages see the page on this site.

Steps to Follow in Pursuing Brain Injury Cases

1.  Recognizing What The Brain Consists Of

The brain consists of four lobes plus the cerebellum and the brain stem.  Injury to any one of those parts produces symptoms that indicate where the injury occurred. The brain is a bundle of neurons.  Neurons are small cells that may be very short in size or may be very long.  For instance some are fractions of a centimeter long.  Others may be many feet long.  Any injury to one or more of those neurons impacts the brain’s function.

The spinal cord and brain are covered by spinal fluid which is a cushion to protect them from injury.  The spinal fluid is also a conductor of electricity.  The brain is a soft Jell-O-like material within the skull.  A blow to the head that causes the head to move in one way results in the brain not moving as quickly as the skull. As a result the brain slaps up against the inside walls of the skull.  Some of those walls are ridged. Those ridges can produce injury to the brain. Also twisting and shearing produce further damage to the blood vessels. Call or contact us for a free consult.

2.  What is a Brain Injury?

a.  Definitions.

The Virginia State regulations define a traumatic brain injury to a child at 8 V.A.C. 20-81-10 as being an acquired injury to the brain caused by an external physical force resulting in total or partial functional disability or psycho-social impairment or both that adversely affects a child’s educational performance.  Traumatic brain injury  or TBI applies to open or closed head injuries resulting in impairments in one or more areas such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual and motor abilities; psycho-social behavior; physical functions; information processing; and speech.  The Federal Regulations found at 34 C.F.R. 300.8(c)12 offers the same definition.

TBI is also defined in the Clinical Practice Guidelines of the Veterans Administration and the Department of Defense.  The definition has several facets.  One of those components is an alteration in mental state at the time of the injury.  The guidelines use the terms concussion and mild to moderate traumatic brain injury interchangeably.

A widely-accepted definition of a mild TBI comes from the American Congress of Rehabilitation Medicine.  It sets forth a definition of a physiological disruption of brain function as seen in loss of consciousness, loss of memory for events, alteration in mental status or focal neurological deficit.

b.  Mild to Moderate Brain Injury

Brain injury is generally described as being mild to moderate.  That is a misnomer.  The injury may be quite severe but it will be classed as mild to moderate.

Personal injury attorneys are accustomed to seeing mild to moderate brain injuries with a host of symptoms such as those listed above.

Any person that has suffered a mild to moderate brain injury needs to have an advocate. The injury prevents the person from doing many ordinary tasks. Therefore they become their own worst enemy. They cannot explain what they have undergone. In addition they cannot carry out tasks given to them. Without an advocate they are adrift.

c.  Loss of Consciousness is not Required

Loss of consciousness at the time of the incident may be important.  It is not a requirement for purposes of a brain injury.  Of course if a person had a loss of consciousness, how would they know that?  All they’d know is that there is a gap in their memory.  If there are no witnesses observing the person, then it’s going to be especially tough to determine if there was any loss of consciousness.  In any event it well established that a loss of consciousness is not a requirement.

The Concussion Quick Check by the American Academy of Neurology states that loss of consciousness occurs in less than 10% of the people with concussions.

d.  Symptoms

The symptoms that may be associated with a concussion or mild to moderate traumatic brain injury are:

  • Physical:  headache, nausea, vomiting, dizziness, fatigue, blurred vision, sleep disturbance, sensitivity to light or noise, balance problems, transient neurological abnormalities.
  • Cognitive:  attention, concentration, memory, speed of processing, judgment, executive function.
  • Behavioral/emotional:  depression, anxiety, agitation, irritability, impulsivity, aggression.

3.  Setting the Baseline

It is critical that in order to determine whether or not there is a traumatic brain injury, you set the baseline.  That baseline is going to be determined by:

a.  prior medical records

b.  work performance

c.  standardized tests such as SATs or LSATs

d.  academic performance

e.  testimony from friends and family who knew the person prior to the injury

f.  any published works of the person

g.  any pre-injury information tests, vocabulary tests, verbal comprehension tests.

As part of any post-injury neurological testing, there probably is going to be a repeat of these above-referenced “fund of knowledge” tests.  Those tests are sometimes referred to as “hold” tests because they tend not to be affected by the TBI.  That is, what the person knew pre-injury has not been lost as a result of the injury and is on “hold”.  Assuming that those pre-injury tests and post-injury tests produce much the same results, then that establishes some baseline as to information processing.  That information processing is then further defined by any post-injury tests that were conducted dealing specifically with information processing.  Presumably those post-injury tests dealing with information processing will show the plaintiff at some percentage category that is lower than what you would expect based upon the hold test.

Most defense neuropsychologists do not engage in any attempt to assess the pre-injury baseline.  What they try to argue is that the post-injury test shows that the plaintiff is within normal limits or average.  Average however has a very broad spectrum.  Average can be anywhere from the 26th percentile to the 74th percentile.  If the plaintiff is now at the 26th percentile and had been at the 74th percentile pre-injury, they may still be within the realm of average but they have also shown a dramatic decrease.

4.  Proving the Brain Injury

a.  Show the Mechanism of Injury

Pictures at the scene of the injury may show this.  Pictures of the actual injury to the plaintiff may show this.  Showing that the injury was to the left side of the head and that’s the part of the brain that is now impacted is important.

b.  Seeing the Injury

Without proof of loss of consciousness, proof of the brain injury is difficult for some people to grasp.  However seeing is believing.

There are a number of tests that allow you to “see” the brain injury.  However you must ask yourself two questions:

i.  How small a defect can the test detect?  Then compare that to the size of a single neuron.

ii.  Does the test only detect blood?

The standard CT scans and MRIs have limited ability to pick up many of these injuries. The injuries are very minute. These studies only pick up larger defects.

There are a number of tests that allow you to “see” the brain injury:

MRIs

  • These tests are used either to prove the traumatic brain injury or to rule out that the problem is a result of some congenital defect, tumor or other problem not related to the trauma.
  • Functional MRI.  These record dynamic changes in the blood flow to the brain.
  • Tesla MRI.  This filming yields very detailed data about the makeup of the brain.
  • DTI MRIs. These studies show water movement within the brain which then allows the doctor to see those areas that are not doing well. The scanner works by tracking the normal pattern of water.  Where that water flow is changed then the DTI scan shows the problem.  The areas where the water flow is blocked are a sign of injury.  The DTI scanner is not new technology but simply involves a software update which allows any standard MRI to perform the DTI scan.  This technology is frequently challenged by the defense.

Scans

CT Scan is a first line scan used in the emergency room to get a good overview of the brain

Spect

SPECT imaging stands for Single Photon Emission Computed Tomography.  This form of imaging provides three dimension info.  The technique involves the injection of gamma emitting isotopes into the bloodstream of the patient.  A SPECT scan is like a PET scan (Positron Emission Tomography) in that they both use radioactive tracers and involve gamma rays.  SPECT scans emit gamma radiation that is measured. PET scans, on the other hand, emit positrons that kill electrons. PET scanners detect the emissions and  provide better images than a SPECT scan.  SPECT scans, however, are less expensive than PET scans.

Pet

PET scans.  These are films of the brain as it absorbs glucose.  An irregular uptake level provides proof of loss of function in that part of the brain. The PET scan is also a three dimension image.  This type of scan is done with the aid of a CT scan at the same time in the same machine.  PET scans are read alongside either CT scans or MRIs. They give info about both form and function. In other words, they produce a picture and also show what the structure is doing. Call or contact us for a free consult.

Meg

There are very few of these scanners in the U.S. They are 90 percent accurate in terms of showing traumatic brain injury.  It is hoped that with these types of scans doctors will be able to parse brain injury from Post-Traumatic Stress Disorder.  The MEG scan works by tracking the magnetic signals from neurons within the brain.  They give a picture of how these neurons are active in the brain and which ones are not talking to each other.  MEG scans provide detail when reviewed with a functional MRI.  The MRI shows blood flow through the brain while the MEG scan shows how these areas “talk” to each other.

Eye Sync

A Boston start-up by the name of SyncThink has a product known as Eye-Sync which the FDA has approved.  It uses virtual reality goggles to see concussions.  The device tracks the eye and produces a number to determine whether or not the person has had a concussion. The company’s founder is Dr. Jamshid Ghajar.  He is in charge of the Stanford Concussion and Brain Performance Center at Stanford University.  He is also the President of the Brain Trauma Foundation. Dr. Ghajar says that the eye is a part of the brain that can be seen and therefore tested.  SyncThink was launched back in 2009.  It produced Eye-Sync with funding from the Department of Defense.   The device has been used to test thousands of U.S. military members and also many school age and college athletes.

How It Works

Headgear is placed over the eyes.  The viewer then sees a point of light.  That point of light rotates in a clockwise fashion.  The device tracks how well the eye follows the light.  It then produces a chart.  That chart tells the tester whether the person’s eyes were off track while following the light. What that means is that the eye and the brain are not working on the same time schedule.

SyncThink believes that it will be able to embed this in other virtual reality headgear including devices such as Facebook’s Oculus Rift. Doctor Ghajar is based at Stanford University.  The Stanford University football team and 36 other sports teams at the school have done baseline studies.  Those studies will be compared against studies conducted after an injury to see whether there is any change. That change may be a sign of injury. This type of brain injury testing provides objective proof in TBI cases.

c.  Neuropsych Testing

Neuropsych testing is reasonably precise without the “picture”.  This may well be the best proof of injury.  A necessary part of this testing is what we identified above as setting the baseline.  “Comparison of Models of Pre-Morbid IQ Estimation”, Neuropsychology, 34(1) 43-52, https://doi.org/10.1037/neu0000569

Call or contact us for a free consult.

d.  Endocrine Testing

The endocrine system is a messaging system within the body.  The other messaging system within the body is the nervous system which sends electrical impulses.  The endocrine or hormonal system sends hormones which convey messages to different parts of the body.  A significant component of the endocrine system is the pituitary gland.  This is a pea-sized organ that is enclosed within a bony structure at about eye-level in the brain.  This pituitary gland has a number of important functions.  It has been found that pituitary dysfunction is reported in many people with TBI.  The growth hormone is the one that is most often involved due to the long veins that are susceptible to injury.  Evidence of this low growth hormone may be seen in the gaining of weight, loss of muscle mass, diminished strength, lack of motivation, lethargy, changes in mood, depression and loss of cognitive function.

It may be important to make sure that the providers are testing for any changes in pituitary function to determine if this is a factor.

An article dealing with this issue is Pituitary Dysfunction Following Traumatic Brain Injury:  Clinical Perspectives in Neuropsychiatric Disease and Treatment, 2015; 11:1835-1843.

e.  Right Eye Diagnostic Study

Right eye diagnostic study is a fairly simple eye test that may be of some diagnostic aid as to a brain injury.  Functional vision problems can be identified.  This simple test allows doctors to pinpoint functional vision problems and brain health problems.  The problem with this test is the screen is flat so it is a test of movement that does not reflect the 3-D nature of human vision.

f.  Saliva Test

In a peer-reviewed article published on March 25, 2021 it is reported that a saliva test may be able to detect concussions.  There is a biomarker in saliva that facilitates such.  Researchers found the genetic markers in saliva determined with 94% accuracy which athletes had been diagnosed with concussions and which had not.  The comparison was with the non-saliva diagnosis.

Doctors typically diagnose concussions by interpreting behavior, symptoms and imaging tests.  These researchers used a statistical composite of 14 small non-coding RNAs (sncRNAs) which provide the cellular blueprint for certain proteins to determine whether a player had suffered a concussion.

Some limitations on this finding are whether or not those who wish to utilize the technology have the ability to actually make the measurements outside of a laboratory setting.  Right now that facility does not exist.  It takes a working day to get the test results.  Another limitation is that the study was limited to male rugby players.  That means that more study is necessary before a test would be applicable for women.  Research suggests that women respond to and experience concussions differently than men do.

In addition the FDA would need to approve any tests before they are used in the US.  The British researchers said they hoped to submit a test for in hospital settings for FDA approval in the near future.

g.  Brain Volumetric Studies

Neuroquant and NeuroGage are volume measuring devices that neurologists can use to determine loss of brain volume.  The trick is determining whether this is due to injury or age.  David Ross, MD from Richmond, VA is the main proponent of NeuroGage.

h.  Cranial Nerve One

There is evidence that head trauma does in fact impact the sense of smell.  This is something that should be explored as this again is physical evidence of injury.

i.  EEGs

EEGs only test the surface of the brain.  As such it does not test the subcortical area.  A person could well have a significant injury, yet have a normal EEG plus an EEG only captures a moment in time.

i.  Breach of the Blood-Brain Barrier

It’s well documented that head trauma can cause a breach of this barrier.  This barrier keeps the brain isolated from certain body fluids that may injure it.  If that barrier is broken, then those harmful fluids can enter the brain and cause damage.

j.  Recognizing the Delayed Onset of Symptoms

There may be two stages to a TBI.  The initial stage is the injury to the nerve cells.  That produces immediate symptoms.  The second stage may be the gradual death of these nerve cells.  That can progress over a prolonged period of time.  It can produce a significant worsening of those injuries, both in scope and severity.

k.  Emotional/Behavior/Mood Disturbances

The emotional injury or the post-traumatic stress disorder suffered by someone with a TBI may be significant.  That should not be overlooked.  That may be the most compelling element of your case.

Some of the frequently reported changes are such things as increased irritability, bad temper, tiredness, depression, rapid mood change, anxiety.  “What are the Disruptive Symptoms of Behavioral Disorders After Traumatic Brain Injury?”, Annals of Physical and Rehabilitation Medicine, 2016; “Traumatic Brain Injury and Mood Disorders”, Mental Health Clinician, November 2020, 10(6):335-345.

l.  Glasgow Coma Scale

The Glasgow Coma Scale (GCS) is a simple test that measures eye-opening response, best verbal response and best motor response.  The best response to each of those simple tests results in a score of 15.  That score does not represent normal neurological functioning.  The person may well have a mild TBI and obtain a perfect score.  The scale is set forth below:

Image result for standard glasgow coma scale

5.  Injuries to Minors

Head injuries to minors are especially difficult to deal with because they may not fully manifest themselves for years.  A brain injury to a child may well be a ticking time bomb.  The child may well have normal neurological examinations for years after the injury.  An MRI however taken years later may show an old bleed from this injury.  Over the course of several years the child may develop attention problems, impulse issues, personality changes, hyperactivity, aggression.  These may all be due to the injury.

That’s why it’s critical that with a significant head injury to a child, time must be utilized.  Savage, “Pediatric Traumatic Brain Injury”, Pediatric Rehabilitation, 8:2, 92-103 (2005)

6.  Litigation Considerations

a.  Lay witnesses

Non-expert witnesses may well be your most important weapon.  The lay witness should ideally be likeable, a good storyteller and someone who has had the opportunity to observe the person.  They may be more effective than the expert witnesses.  Typically your plaintiff is not your best lay witness simply due to the nature of the injury.

However fellow employees may be somewhat dangerous.  It may well be that the plaintiff has hidden the injuries from other employees for fear of this impacting employment.

b.  Find the Right Mix of Simple and Complex

It’s a good idea to try to keep your case simple.  Making it too technologically sophisticated may overwhelm a jury.  That is especially the case if they don’t understand how these various tests are conducted and what they mean.  Mixing simple elements with more complex elements is probably the best way to proceed.

c.  Considering Gender

It’s sometimes said that women are three-dimensional and men are one-dimensional.  There is probably some truth in that.  Women tend to have a better grasp of the emotional.  As a result of that they can be highly critical and suspicious of anyone who is overstating the emotional injury.  At the same time they may be very sympathetic if in fact the emotional component of the case is bona fide.

d.  Maximizing the Neuropsychological Data

It is critical to get the raw data that the defense neuropsychologist may have relied upon.

Frequently neuropsychologists hired by the defense do not want to generate or produce their raw data.  That raw data is essentially the questions that were asked.  All they want to give you are the answers.  The answers without the questions don’t mean anything.  It is critical to get that raw data.

A strong expert designation that expressly says what the baseline is and defines how that baseline was arrived at is critical.  If that baseline is in part based upon standardized tests, then the tests should be identified.  They should reflect that the pre-injury intellectual abilities were in the high average range.  They should define precisely what that numerical range is if you can.  State further that it’s based upon specific scores.  State then what difference in scores may be significant i.e., how many points reflect a true difference.  If that pre-injury score is her baseline and if you know what change in that score would be considered significant, then define that.  State what the post-injury percentile the plaintiff falls into.  All of that shows the post-injury change.  This can be displayed graphically by showing information processing ability, both pre-injury and post-injury.

e.  Challenge the Defendant’s Expert Designation

Typically the defense neuropsychologist never establishes a baseline.  Without that baseline, no comparison is possible and therefore the testimony is irrelevant.  Lanham and Misukanis, Determining Change in Cognition Following Brain InjuryBrain Injury Source, Pediatric Issue, Volume 3, Number 3, Summer of 1999;

f.  Relying on Learned Treatises

There are a number of different textbooks and articles that you may want to take a look at.  Some textbooks are Brain Injury MedicineThe Textbook of Traumatic Brain Injury and The Evaluation and Treatment of Mild Traumatic Brain Injury.  Some articles are “Traumatic Brain Injury and Mood Disorders” found in The Mental Health Clinician, November 2020 and “What are the Disruptive Symptoms of Behavioral Disorders After Traumatic Brain Injury” found in the Annals of Physical and Rehabilitation Medicine published in 2016.

g.  Fear of Increased Risk of Exposure to Dementia or Alzheimer’s

A fear of increased risk based upon a physical injury may be a proper element of damage.  However the key is linking the fear to the physical injury. Whether the actual increased risk is real and whether that itself is compensable, is another issue.  “Does Mild Traumatic Brain Injury Increase the Risk of Dementia?”, Journal of Alzheimer’s Disease, August 2020.

h.  The Amount Sued For

Your jury may need assistance in terms of coming up with a number.  The amount sued for may be important.  Using the Wakole Formula may be of much assistance in that regard.

See other pages within this site on brain injury by using the search function and review the pages on Wikipedia

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