WHAT EVIDENCE IS NEEDED TO PROVE A TRAUMATIC BRAIN INJURY?
It can be beneficial to submit the following into evidence to prove a head and brain injury:
- Accident report
- Scene photographs
- Ambulance/EMT records and interviews
- ER records
- Medical records
- Prior medical records
- Educational records
- Employment records
- Drug use history, long term prescription abuse (with brain injuries all the psychiatric evidence will be considered relevant such as arrest and conviction records, employment records)
- Before vs. after evidence (must show the difference between before the injury and after the injury)
- Accident witnesses
- Collateral witnesses
- Corroborative medical records
PROVING DAMAGES IN TRAUMATIC BRAIN INJURY CASE
The brain is the repository for the soul. The brain controls the emotions. The injured victim may not be able to experience emotions, joy, and passion. The jury must be shown the science behind a mild traumatic brain injury and that it involves sending signals that will never connect. Currently, modern science and medicine do not have a way to show the mis-connections. Therefore, the attorney must be able to convey this to the jury.
Also, when litigating a mild traumatic brain injury case, the defendants must concede that physical impact is not necessary and that loss of consciousness and concussion satisfies the diagnosis of a mild traumatic brain injury. Moreover, mild traumatic brain injury will always have negative MRI and CT Scans by its very definition. The issue then becomes only residual damage.
It is always advisable to only present the injured victim client toward the end of hearing all the witness testimony in the case. Doctors, family members, co-workers, and friends should set the stage before the injured victim’s testimony. TBI cases are generally supported through the testimony of friends and family – as many people as possible who knew the victim before and also knew the victim after the injury, and can therefore testify to the specific problems and changes in the victim’s life. Generally, less testimony from the injured victim may be more in such cases.
Proving damages is different for mild, moderate, and severe traumatic head and brain injury.
In mild TBI cases, it is critical in the opening statement to explain that it is mild because the doctors chose to define it as such to distinguish it from moderate and severe. But mild traumatic brain injuries can be devastating and catastrophic. The jury must be educated from the beginning why it is called “mild.” After the opening statement, the condition should not be referred to as “mild” throughout the rest of the trial. Instead, plaintiff’s counsel should refer to the injury only as a traumatic brain injury.
Moderate and severe traumatic brain injuries are easier to prove. The key is the future – a lifetime of suffering and damages. Big settlements are not obtained unless there is future harm and damage. For moderate TBIs, the jury must see the films, artist renderings of the films, and walk the jury through the depiction. For severe TBIs, a day in the life video is key to allow the jury to see the impact on the life of the victim.
Large awards are given when there is future attendant services and future pain and suffering. California Civil Jury Instructions CACI 3932 for life expectancy which provides the bases for the calculation for future damages.
Plaintiff’s counsel should also educate the jury on the value of money in society when requesting large awards. Compensation must be provided for the life expectancy of the Plaintiff. The injured victim will suffer every day until their life expectancy. Compare the price of an expensive object or a celebrity who makes large annual earnings as an example of the value of money. Or, consider the comparison to a fighter jet going down, and the pilot is presented with the dilemma to eject and save his life or try to save the expensive jet. The life is more valuable than the expensive jet. Society values a person’s life more. Although these are extreme examples, the comparison to the client’s injury is also an extreme injury because he will suffer for the rest of his life. No human being should have to go through this amount of pain.
In these type of traumatic brain injury cases, a juror who is more educated and intelligent may be a good member of the jury panel because they can understand the value of memory and brain functioning.
Concussions are common in athletics, notably football injuries. The athletes in the National Football League (NFL) commonly suffer concussions. In addition, the repetitive more minor head trauma that occurs regularly in football pose the greatest risk to the athletes. The regular impact when playing football increases the chance of the athlete having cognitive dysfunction and brain disease. Concussions may produce unconsciousness or bleeding in or around the brain. During a severe blow or hit, the brain bounces within the cavity, causing neurons (brain cells) to stretch and tear. The primary affected areas are the frontal lobe and temporal lobe.
In 2012 a lawsuit was first brought in the Eastern District of Pennsylvania by the unified NFL players concerning concussions and Chronic Traumatic Encephalopathy (CTE). CTE is a disorder in people who have experienced brain trauma or repeated hits to the head. Its symptoms include many brain related issues including lack of impulse control, aggression, depression, impaired judgment, memory loss, paranoia, confusion and progressive dementia. Petitions have been made to the United States Supreme Court concerning concussions in the NFL. Many times the players in the NFL experienced multiple concussions, but were not provided the proper information regarding the medical terms used by the examining doctors that were hired by the NFL. In the process, many NFL players and their families have been improperly denied benefits.
TRAUMATIC BRAIN INJURY LAWYER
If you or a loved one has suffered a traumatic brain injury or a head injury, contact The Sterling Firm for a free initial consultation. We can help!