Things a Brain Injury Lawyer Needs to Know
- That the initial categorization of the brain injury as mild, moderate or severe does not necessarily determine the long-term outcome/consequences from that injury. Nevertheless, a brain injury that is categorized as severe by medical definition, holds out the strong possibility that there will be negative long-term consequences for the patient that might well adversely affect his/her functioning within the community and particularly relative to his/her ability to engage competitively in his/her former employment.
- Either from experience and/or the literature on the subject, of the following typical impairments following a traumatic brain injury:
- Physical Impairments: speech, vision, hearing, tactile, and olfactory (smell) dysfunction; headaches, lack of coordination; altered balance, altered gait, muscle spasticity; paralysis; dizziness and seizures.
- Cognitive Impairments: short and long-term memory deficits, concentration, attention, slowness of thinking, impaired reading and writing skills, problems with perception, sequencing, judgment and communication.
- Psycho-social-behavioural-emotional impairments: fatigue, mood swings, denial, loss of empathy, self-centeredness, anxiety, depression, lowered self-esteem, sexual dysfunction, restlessness, lack of motivation, inability to self monitor, difficulty with emotional control (lability), inability to cope, agitation, emotional volatility and general difficulty in relating to others.
- That a medical team experienced with brain injury issues must be assembled if not otherwise in place through the medical system. The medical team, at a minimum, should include a general physician (well informed on brain injury care), neurologist, neuropsychologist/psychiatrist or both, physiatrist, occupational therapist and counsellor. A vocational expert will certainly be necessary at some stage of the process.
- That because of the complexity involved, case management of the client within the community will be required and that can be carried out by the law firm retained or some other professional knowledgeable about brain injury issues. Commonly this role is assumed by an occupational therapist. An occupational therapist experienced in brain injury rehabilitation, can be invaluable as he/she is in a much better position than most lay people to recognize the effects of cognitive/personality changes. Much of this information can be gathered by the occupational therapist acting in the role of a case manager, throughout the rehabilitation process as he/she monitors their recovery progress and function of the brain injured client at home, in the community and the work place.
- Anticipate that many of the problems being experienced by the brain injured survivor will be subtle and that pre-motor vehicle accident personality traits that were not problems can turn into traits that become dysfunctional. He will set out to establish that while the survivor shows these tendencies before the accident, those who knew him/her saw them as being essentially neutral or positive traits that were within the normal range of functioning, but that those who knew the survivor afterwards perceive those traits as being weaknesses or barriers to adequate functioning.
- That many brain injured clients present, following an initial period of recovery, as quite normal to the world at large, when the reality is something quite different and in fact these clients experience great difficulty when they attempt to resume their responsibilities at home, work or school. Accordingly, to determine if this, in fact, is happening to the brain injured client, the lawyer must develop a pre-and post -accident profile of the client by interviewing, in detail, family, friends and co workers to determine the changes in function. The lawyer will understand that quite often the client will lack insight into his own predicament, and be completely unaware of his dysfunction, particularly if that dysfunction stems from subtle brain injury deficits.
- That accepting a brain injured client at face value is not an option because there is a significant chance that the brain injured client will lack insight into his dysfunction.
- That it is crucial that field observations from the appropriate rehabilitation specialists and/or important witnesses be provided, particularly to the physiatrist, neuropsychologist/psychiatrist and vocational experts retained, in order to provide them with a better understanding of the client’s functioning within the community, as interviews with the client by these professionals will almost certainly not reveal the existence of all and of the range of the problems being experienced by the brain injured client.
- Be very conversant with the concept of “competitive employment”. In the time period in question, and still to this day, I frequently refer to a definition of “competitive employment” defined by Dr. Schmidt (Neuropsychologist) in a report dated February 17, 1993 and quoted with approval by Lander J. in Browning v. Girard, May 18, 1994, BCD. Civ. 3389 63.
