How do you prove something is real when it can’t be seen? This may sound like a deep philosophical question, but it’s a question any attorney has faced when representing a brain injured client. Consider the difference between a broken leg and a concussion. While they have few similarities at all, perhaps the biggest difference is that one is likely to be pretty obvious and the other is hard to spot. A person with a broken leg may have a cast or a boot; they may use a scooter or crutches to help them get around. But the signs and symptoms of a head injury can include things like changes in personality or mood, mental fog, tinnitus and difficulty falling asleep. All of these may wreak havoc on the brain injured person’s daily life, ability to work, and interpersonal relationships. None, however, are visible to the eye. So how will they be proven to an insurance company or to a jury?
When proving a brain injury case, it is vitally important for your attorney to obtain as much information as possible to show your pre-injury status. They will want to gather information to show your capabilities prior to sustaining the injury and objectively quantify your level of function at that time.
Sit down with your attorney and work together to recall as much history as you can, from birth to present. Create a detailed history of every medical provider that you have seen in your lifetime. This includes not only primary care records, but also records from eye doctors, therapists, dentists, etc. Your attorney will order your medical records for as far back as possible. Don’t fail to report any prior loss of consciousness or other head trauma and concussions. The medical literature indicates that repeated mild traumatic brain injuries cause cumulative damage to the brain, which can cause memory loss and learning dysfunction. Your medical history can also help to prove that you did not previously have the symptoms that you are now experiencing. Additionally, providing a complete medical history ensures that your attorney will not be surprised by anything unexpected that shows up in the records. Surprises are best avoided in litigation.
Your attorney will also want education records, including test scores, for as far back as possible. They are likely to request employment records, not only evidencing wage loss, but reviews and production documents. These documents contain helpful information about who you were before suffering a brain injury and if there is any black and white documentation on how well you were doing at school or work before the injury for comparison to your abilities after the injury.
By gathering objective evidence of your pre-brain injury capability and function, your attorney can show the difference in level of function after the brain injury and persuasively argue how the brain injury has impacted your life. Additionally, these documents are important to be able to provide to medical and vocational experts who will be able to look at this information and provide knowledgeable opinions on causation.
In order to effectively prove a brain injury, your attorney should get to know your pre-injury and post-injury support system. To learn more about who you were before the injury, your attorney needs to talk with your family members, friends, and coworkers who have spent significant time with you before and after the brain injury. It is typical that persons close to you may have a better understanding than even you do of the changes you’ve gone through due to the brain injury and how it has affected your life, your personality, and your behavior. For instance, friends or family members may report that you are more irritable since suffering a brain injury and even small noises, such as the ticking sound of a turn signal in a vehicle, can trigger you.
Your attorney will gather stories from friends and family members regarding specific examples of your behavior in the past and how it has changed since the accident. The more examples and stories that your attorney is able to obtain about you before and after your injury will assist in painting a picture for the jury of who you were and can help them to become invested in the challenges you must now face. Perhaps before the injury, you were very active in the community and regularly volunteered for local charities or helped out an elderly neighbor with weekly household tasks, and yet after the injury you are no longer capable of doing those things. This shows that the brain injury affected not only you but also those in the community who counted on you for a helping hand. Such stories help a jury to empathize and understand the full weight of what you’ve experienced. The smallest details or examples of how your life has changed due to the brain injury may end up being the most convincing facts and testimony to prove not only that the brain injury occurred, but that it matters.
Your attorneys must develop a rich understanding of your injury itself and the best providers available to assist you with your symptoms. The types of medical professionals who may be involved in your care include neurologists, neuro-psychologists, physical medicine and rehabilitation specialists, otolaryngologists (ENT), neuro-optometrists and neuro-ophthalmologists, cognitive therapists, speech therapists, vision therapists, vestibular therapists, psychologists, and endocrinologists. Not all brain injuries will require every specialty, but your attorney should be armed with the knowledge of not only who specifically in those communities is fully capable of understanding brain injuries, but what kind of specialist may assist you most effectively in healing.
Your attorney will equip key medical providers, those whose expert opinions will be used to help prove your case, with additional tools and information to inform their opinions on diagnosis, causation, apportionment (assignment or allocation of responsibility for your injury) and prognosis (the forecast for your recovery). Such tools might include the police report, relevant prior medical records, relevant post-collision records, and other documents specific to their specialty and their opinions.
By investing the necessary time and effort to know you, both who you were before your injury and who you are now, your attorney prepares for the inevitable arguments against compensating you fairly for a life-altering injury that others cannot see. With careful selection of medical professionals whose expert opinions will lend significant weight to the before-and-after stories of your family, friends and co-workers, your attorney can build a case that brings your brain injury into clear focus for the insurance company that likely prefers not to see it. And should the case proceed to trial, a jury will be presented with enough information to conclude that invisible damage is damage nonetheless, with real life consequences including physical and emotional pain and economic loss.
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