The CDC estimates that 1.5 million people every year suffer traumatic brain injury (TBI) due to accident, injury, birth defect, or other less common causes. The legal aspect of this proves difficult for attorneys. It takes an experienced attorney to take on a TBI case. As we previously established in “The Legal Side of TBI Part 1″ this is because TBI victims are said to have an “invisible” injury.
To the naked eye, a traumatic brain injury cannot be seen, therefore the insurance companies are quick to attempt to use this to their advantage. This practice is not only deceitful and wading in murky legal waters, it hurts accident victims! The insurance companies will do everything in their power to try and convince an injured, frightened victim that they’re not entitled to compensation because they don’t have a visible injury. This is simply not true.
When an attorney isn’t prepared, clients pay the price
But, there are other aspects of TBI law that if left unexplained will hurt victims just as much as the insurance companies playing schoolyard bully. One other aspect is that many attorneys will tell victims they’re ready and willing to take on their TBI case, only to founder when they get in front of a judge. That’s because a great deal of attorneys have never tried a brain injury case in a court of law at all! In theory they believe they can handle the complexities of TBI law, but in reality, they’re unprepared for the massive task in front of them.
With TBI, legal becomes more complicated than medical
When it comes to traumatic brain injuries, legal claims become complicated. Sometimes even more so than the medical complexities of this type of injury. The answer to why this is isn’t a simple one, but can be explained as such: a traumatic brain injury cannot be seen, therefore it’s difficult for a judge and jury to rule on whether the victim is injured. That’s why it’s imperative that a victim retains experienced legal counsel that’s aware of what’s needed to successfully convince a jury that their client is, in fact, injured to the point of both losing their quality of life and ability to function normally. Due to TBI, these things will render a victim isolated, in physical and mental pain, and unable to life the life they enjoyed prior to their accident.
So, what does a personal injury attorney need to be well versed in aside from preparing witnesses, understanding TBI law, and being able to protect the rights of their client? Let’s take a look at another important aspect of a TBI case that the insurance companies will attempt to hide the necessity of from victims.
New, improved psychological evaluations are proving TBI, and the insurance companies don’t want newly injured victims to find out
Even ten years ago, there were nearly no psychological evaluations or any kind of neurological tests that could be considered viable for use in a court of law. This is because only in recent years has psychological testing in victims advanced to the point of being able to prove mental deficit, and brain damage, are due to a TBI sustained after an accident.
Psychologists, social workers, and other mental health professionals can now confidently and expertly testify in court on behalf of victims. They can provide expert testimony that the victim’s impairments (loss of ability to focus, dizziness, slurred speech, mental anguish, depression, and PTSD) are all due to the brain injury they sustained in an accident and not due to something unrelated.
Of course, “before and after” witnesses may also provide insight to further drive home the expert testimony. Those who know the victim best can provide impactful, emotional insight to a jury about who their loved one was before they became injured. This emotional testimony, however, should not be heavily relied upon when fighting for the rights of the client. An attorney cannot ever anticipate the jury’s reactions to anything, and must always rely on their own knowledge, expertise, and research, research, research before getting in front of the judge.
When it comes to protecting the client in a brain injury case, it’s of utmost importance that the attorney work closely with the family of the injured victim, should they seek to be involved. More often than not, a victim of TBI is suffering from PTSD, inability to focus or complete tasks, and a great deal of pain (migraines frequently occur after brain trauma).
This is why mental and psychological testing is of utmost importance as well, as mental health professionals can attest to the fact that the victim cannot perform simple tasks such as focus on what their attorney has to say, and will require lifetime or at the very least, an extensive amount of medical and mental health care to return to any aspect of normal life.
An experienced attorney is passionate about the law, and their clients
As we continue to provide a deeper look into the legal side of traumatic brain injury, we’ll continue the series with a look at case law, the importance of precedent and prior experience when trying nuanced cases, and offer our readers even more insight into what the insurance companies try to keep from victims. On top of all of this, we’ll continue to present nothing but the facts from the perspective of a personal injury attorney whose successfully tried and won countless TBI cases for clients.