Another Look at the Legal Side of Traumatic Brain Injury
When it comes to practicing Personal Injury Law, lawyers are frequently met with orthopedic injuries–sometimes on a daily or weekly basis. These injuries are sustained in car accidents, work-related accidents, slip-and-fall accidents, and motorcycle accidents to name a few. Orthopedic injuries, while not straight forward, are usually able to be seen and presented visibly in trial, should the case end up in litigation. Proving an orthopedic-related injury, while not easier per se, does provide a level of evidence right off the bat.
With an injury that can be proven, the road to recovering damages has fewer twists and turns (though, every case has its own nuances). With these injuries, as we stated, the jury can see these often catastrophic outcomes (amputations, paralysis, broken bones) and can deliberate on damages accordingly. When it comes to Traumatic Brain Injuries, everything changes. More often than not, a brain injury cannot be seen by a jury and therefore requires added preparation for trial that other litigation may not always necessitate.
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 attorney 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 attorney 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 attorney and may be called at any time throughout the duration of the case.
Experts tip the scales
An expert witness may speak to the credibility of the client during:
- Deposition (the process of providing sworn evidence in a legal case; keep an eye out for our upcoming blog detailing everything our readers need to know about depositions)
- Trial, if the case reaches the point that a settlement cannot be reached without one
Now, let's take a brief look at the professionals that may board the legal team as expert witnesses to provide testimony:
- 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 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.
Victims rights victories
Even with everything we've presented in this article, and in previous articles, it's the insurance companies hoping that victims will give up and forfeit their right to a lawsuit that often deters them from seeking legal representation to obtain the compensation they deserve. Insurance companies are hoping that victims simply exceed the statute of limitations on their case and won't know they have rights despite having an "invisible" injury (they do, and they should fight, passionately).
That’s why, as we always stress on the Shaked Law Blog, it's important for an attorney 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.