The Attorney Commitment in Traumatic Brain Injury Cases
By Matthew D. Barrett
Matthew D. Barrett is associate attorney with Starr Austen Myers & Miller, LLP, in Logansport, Indiana, whose practice focuses on personal injury litigation. He can be contacted at matt-barrett@comcast.net.
Representing a client who has sustained a traumatic brain injury (TBI) or a similar type of catastrophic injury presents many unique and difficult challenges. The brain-injured client often requires a lifetime of care that costs hundreds of thousands or even millions of dollars. Long-term effects of a TBI include cognitive deficits and physical impairment in walking, motor skills, and coordination. To effectively represent a brain-injured client in a TBI case, the attorney must devote the necessary time, money, and emotional resources and prepare in the following ways:
Confirm that the client sustained a TBI. In many cases, people who have sustained TBIs do not have evident or outward injuries. Only a small number of TBIs are detected by Computed Tomography (CT) scan and Magnetic Resonance Imaging (MRI). Therefore, healthcare professionals often overlook TBIs, and the patients do not receive appropriate medical care. As such, the attorney of a brain-injured client should thoroughly review all medical records and obtain a second opinion from a specialist, such as a n europsychologist. Furthermore, the attorney should interview the client and people who spend time around the client to determine if TBI symptoms, such as fatigue, headache, memory problems, mood swings, vision problems, and sleep disturbance, are present.
Learn common medical terms and how the brain functions. TBI cases are a unique area of personal injury law, and the science behind TBI cases is constantly changing. Learning the meaning of the common medical terms used in TBI treatment and the basics of how the brain functions not only assists the attorney with understanding the client’s medical records, it also gives the practitioner the ability to effectively communicate with the client’s healthcare providers and the jury if the case proceeds to trial.
Get to know all of the client’s healthcare providers. A client who has sustained a TBI will encounter numerous healthcare specialists during his or her treatment, including neurosurgeons, neurologists, neuropsychologists, cognitive therapists, speech and language therapists, occupational therapists, physical therapists, social workers, neuroradiologists, and more. Many of these professionals will be required to testify as experts during the trial. Knowing the role of each of these specialists is important in formulating a courtroom presentation that explains the breadth of pain and suffering that the client endures and will endure with a TBI.
Document symptoms. The attorney can build a much stronger TBI case if the records or witnesses document the client losing consciousness, suffering posttraumatic amnesia, and experiencing other signature symptoms immediately following the head injury. Detailed documentation of the client’s condition should be ongoing throughout the litigation and can be kept in journal form. Journals can be especially helpful when the attorney chooses to use “day-in-the-life” videos during trial to demonstrate the effects of the injury on the client.
Investigate all sources of assistance for the client. To assist the client prior to the resolution of the case or in the event that no recovery is obtained, the attorney should investigate alternative sources of financial assistance available to the client through Social Security, Medicare, Medicaid, and other governmental programs. In addition, the attorney should also search for benefits available to the client through state or local brain-injury associations that provide assistance for daily life needs. And most importantly, it is imperative that the client obtains full compensation of all asserted damages in order to pay for all the specialized care that may be required for many years to come.
 

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