Tackling Traumatic Brain Injury Cases Effectively

00:03 Speaker 1 Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda and I'll be your host. Today we're going to talk about traumatic brain injury cases. We're going to dive into what is a traumatic brain injury, Tips for handling those types of cases, such as how to investigate them, and some of the challenges that you can face when handling a brain injury case, especially if it's your first time. I'm Jack, and here today to help us dive into this topic are two of our top trialers, Burgess Williams and Chrissy Hagan, along with our brain manager, Kelsey. Hey, guys. 00:51 Speaker 2 Hey, Jack. 00:52 Speaker 3 Hey, Jack. Hey, Zach. 00:54 Speaker 1 Well, I'm really excited about this topic. I really enjoy working on traumatic brain injury cases. I find that they are very challenging. They deal with cutting edge medical issues, and the way you can change someone's life can be very rewarding. 01:11 Speaker 3 I agree. You know, I've seen the firm deal with a lot of these cases, and I'm excited to explore the topic further and kind of learn more about how we address these often devastating injuries. So let's start with some questions. First, what kind of qualifies as a traumatic brain injury? 01:33 Speaker 1 You know, what's really interesting, and Burgess, I don't know if you found this in your practice, but in the last five to 10 years alone, what qualifies as a dramatic brain injury has changed significantly. I remember when I first started practicing law, a traumatic brain injury was only if it was very severe. You could clearly tell from the initial impact that there was a catastrophic injury, potentially, you know, a fractured skull with parts of the brain missing even. And what qualifies as a traumatic brain injury has changed a lot as technology and medicine has changed. 02:10 Speaker 2 Yeah, I agree. We've learned a lot about traumatic brain injury over the last 20, 30 years. And, you know, we've really honed in on the lesser degree of injuries, which are mild traumatic brain injuries. You know, really, those can occur with very little force. You know that it can be an impact as low as 18 miles per hour, and it doesn't even require you to have an impact if you're in a car with another vehicle, just a sudden deceleration where that causes the brain to impact the interior of the skull. So, you know, there's lots of arguments over, you know, the clinical definition of a traumatic brain injury. But we've really been able to learn from a scientific standpoint that brain can have a permanent injury off of a lower impact that we didn't really realize before this. 03:14 Speaker 2 You know, A great amount of research that's been done over the last two. 03:18 Speaker 1 Decades, you know, and I really. I think it started with the NFL cases. I feel like when the NFL cases picked up steam, the amount of research that went into traumatic brain injuries picked up. And I think a lot of it had to do with the fact that, you know, kids were involved and the amount of injuries that were seen to children was going up and parents got really concerned. 03:41 Speaker 2 Yeah, I agree. And additionally, being at war for the last 20 years, the Department of Defense has put a lot of money into doing research into post concussive disorders. And we've learned a lot by virtue of that as well. 03:59 Speaker 3 And as Bert said, these injuries range in severity. So what are some of the key pieces of evidence you look for. For each end of the spectrum? 04:10 Speaker 4 Oh, you just. You wanna look for loss of consciousness, although that's not required. And then just mechanism of the injury, how the actual incident happened, what manner, what ways the body moved, if it was a car crash or a truck crash, for example, what kind of initial symptoms you're seeing, if there is kind of stumbling of words, trouble recalling exactly what happened. You know, that initial memory loss, headaches, and then just any other cognitive issues, blurred vision, slurred speech, stuff like that can be good initial indications. 04:52 Speaker 1 But I know, Chrissy, you and I have worked on a lot of cases where at first, you know, you meet with the client, and maybe they had some loss of consciousness or maybe they had an impact to their head. But what the injury ends up being is not clear in that initial meeting, you know, and you start talking to the client, and you talk to the friends and family members, and they. They start indicating that we've seen a change, we've seen a shift in how this person's behaving. I remember one of the very first cases I handled, and this was involving traumatic brain injury, you know, at this point a while ago. And my client actually was a. As a gas explosion case, and they got impacted against the wall, and they actually did not lose consciousness, but the. 05:38 Speaker 1 About 75% of their body caught on fire. And I learned that you can actually get a traumatic brain injury from a fire injury due to a lack of oxygenation to the brain. And there wasn't anything in the initial emergency room records because they were just looking at his burns. But his wife said, this is a changed man. We hadn't had a fight in 25 years. We have an amazing marriage, and all of a sudden he's becoming verbally abusive. He's yelling at him, he's throwing things across the room. He had never exhibited that behavior before. And she was just at a loss about what was going on there. 06:15 Speaker 1 And so through talking to the client, were able to get our client to meet with a specialized neurologist who was able to show that he actually had some shrinkage in his brain, which was affecting his ability to handle his emotions. And that only came from talking to the client and talking to his spouse. You're not going to find that at the crash scene. You're not even necessarily going to find that in a medical record. But I think starting with the records is really important. Burch, where else would you look for? We're trying to get that evidence of a traumatic brain injury. 06:48 Speaker 2 Yeah, I think at the intake of a case, when you're considering taking the case on and trying to determine if there is a brain injury, like Chrissy said, you run through that list of symptoms. The CDC publishes a pretty comprehensive list. And so you want to go through and look at the symptoms and see if they match up. And then you want to talk to family members and friends who know the person well and can paint a really good before and after picture for you, because those witnesses, at the end of the day, are the ones that are going to make and break your case. The medicine and the imaging is great to have, and it helps confirm things, but those lay damages, witnesses are crucial. 07:39 Speaker 1 And I really think it comes down to what is your belief about the severity of their injury. And you can't find that out sitting in your office just looking at notes. You actually have to go out there and talk to people. So if you're trying to put together a checklist on what you want to check out. So you want to first talk to your client, talk through the symptomology that they have. You know, look for loss of consciousness and those symptoms that Chrissy mentioned. I think, number two, you want to check the emergency room records and the EMS records. Three, talk to friends and family. And four, look for any physical evidence of an impact to the head. And keep in mind, it does not have to be a big impact to cause a traumatic brain injury. 08:25 Speaker 2 And another thing to keep in mind, too, is the emergency rooms are notoriously bad at diagnosing concussions. There are studies out there that show they miss upwards of 50 to 60% of diagnosis concussion diagnoses. So just because it doesn't show up in the medical records does not mean that it doesn't need to be explored. And if they're having those symptoms, a neurologist can really help make that diagnosis for you and help get the client the care they need to cope with it. 09:01 Speaker 1 You know, and that's not the emergency room's fault. A lot of times they're there to make sure you're not going to die. I mean, that's why I look at it. ER's job is to make sure you're going to live and get you off to either back home or to another doctor to help you out. So they're not looking for as much detail as another doctor might look in, especially what they call, quote, unquote, mild traumatic brain injury. 09:22 Speaker 3 So what does the discovery plan for these cases look like? Can you draw that out? 09:27 Speaker 2 Yeah, I think that, you know, starting with a really thorough intake, figuring out symptoms, seeing if there's something there that needs to be looked at, and encouraging a client to see a specialist to figure out what all is going on. And then you need to really dig into their past. We make a habit in all cases, but especially in traumatic brain injury cases, of finding out what kind of medical conditions the client had before to make sure that you can prove the causal connection between the incident and the injury. And just because your client has had concussions in the past doesn't mean, well, you can't prove causation after this incident. That actually can make the case stronger because they're more prevalent to further injury, having had previous concussions. 10:21 Speaker 4 Yeah, that's a really good point. I was talking to a neurologist the other day one of our cases and he wasn't surprised that one of our clients was still experiencing the effects of her TBI that she suffered, you know, longer than, quote, unquote, what's typically seen as far as the recovery period goes in a tbi. Because he was like, well, she has a history of anxiety and depression, so, you know, that's another risk factor. Also, being a female is one of the risk factors for prolonged symptoms when it relates to a TBI or moderate or, I'm sorry, mild tbi. So kind of that history of having depression in the past that helped him kind of with his understanding and explanation for why she's still experiencing all of these symptoms months and months after the crash. 11:15 Speaker 5 Zynda Law Group is a plaintiff's personal injury law firm made up of over 30 lawyers that handle catastrophic personal injury and wrongful death cases throughout the United States. We regularly counsel and joint venture with firms across the country. Over the last several years, we have paid millions of dollars in joint venture counsel fees to the law Firms we work with. If you are a law firm or attorney and have a catastrophic personal injury or wrongful death case you would like to joint venture or work with Zindalaw Group on, please reach out to us at 800-863-5312 or email us@infodferm.com and we can set up a time to discuss your case. 11:52 Speaker 1 You know, I think something that can be intimidating to new attorneys is how do you even get a doctor on the phone? 11:57 Speaker 2 Right. 11:58 Speaker 1 I remember when I first started practicing, the idea of trying to get a neurologist to talk to me was kind of intimidating. What tips or any do you have, Chrissy, for? You know, you're trying to get ahold of a doctor to talk to you about a case. How do you go about even starting that process? 12:13 Speaker 4 Yeah, so I usually just reach out to the doctor's practice directly. You know, say that I am representing one of their patients related to a crash that they were involved in and that we have received copies of their records. Indicates that there may be a lot of future treatment recommendations. And I'm just trying to get a better understanding of what all that entails, kind of what that whole prognosis is, how long that future treatment is going to last, approximate cost for that type of treatment, so that we have a fuller picture of the full treatment process and each treatment phase that our client's going through. And typically they're willing to speak with me, knock on wood. I haven't really had a doctor straight up turn me down. 13:02 Speaker 4 You know, Their goal is also to make sure the client's getting better and on the right track. And if they can help explain things, they're typically inclined to do so on a brief phone call. And then they almost always, I would say they almost always charge for that. So just make sure you get their fee agreement, their fee schedule beforehand, know what you're getting into. Lots of times a 15 minute call is super expensive, but different doctors have different fee schedules. So it really all depends on how things they bill their time for that specific type of call. 13:33 Speaker 1 Yeah, I remember one time there was a doctor whose hourly rate was 10,000 an hour and he said, I will never testify at trial for anything ever. And it'll be 50,000 an hour if you call me to trial. So yeah, the calls can be really expensive. We did not call that doctor. 13:51 Speaker 4 Yeah, that's a good point though. I've seen doctors who make their deposition fees like, much lower than trial deposition and conference call fees. I think to encourage that instead of going to trial, like you said, you know, so they're more inclined to get on the phone with you in the hopes that it will prevent them from being called at trial. 14:11 Speaker 1 You know, and one thing that I found is really interesting about these cases as they've evolved over the years is that in the beginning, it used to just be a battle between what are called neuropsychologists. And this was before a lot of the objective testing. You know, a neuropsychologist is someone that interviews the client, runs testing to evaluate if they have a traumatic brain injury and what the impacts might be. But as some of the testing has evolved, it's been really cool to see that there's a lot more objective evidence that proves out that our clients have been telling the truth the whole time, even though a lot of the insurance companies and defense lawyers tried to make them out to be liars. 14:50 Speaker 1 So, you know, Burgess, what are some of the experts that you see get involved or different medical providers beyond just a typical neurologist in these cases? 14:59 Speaker 2 Yeah, I mean, you can see a whole wide array of them. Like you mentioned, neuropsychologist. On the medical doctor side, you can see specialized neurologists. You can see neuroradiologists who can run tests like a dti, which is an MRI that's kind of souped up, if you will, to be able to look in each individual slice and figure out if there's any pathology in the brain. And that can be very effective in finding kind of trace injuries and being able to show them to a jury. And we've seen neuro ents who run tests such as a video nice tomography or a bng. Those are effective in being able to create another data point. If there is a problem with how the brain and the inner ear are communicating, that can be another data point for brain injury. 16:13 Speaker 1 How does a B and G work? Those are really interesting. 16:15 Speaker 2 Yeah, so it's really trying to figure. 16:18 Speaker 1 Out how. 16:22 Speaker 2 The brain is reacting to stimuli. So they will show you. They'll take the patient and put some goggles on, and then they'll run a bevy of tests, one of which includes showing visual stimuli. And the machine will track how quickly the eye is following that stimuli. And they've got such a baseline of data that what is a healthy brain reaction time if you fall outside of that is data that would show that the person suffered an injury as a result of a concussion, which can be an important part of proving that brain injury. Because if you test positive on the bng, there's A pretty high likelihood that you're going to test positive on the D. So, again, those are more objective tests that are, if your client is injured and has suffered a tbi, can bear that out. 17:23 Speaker 1 Well, and I think that's what this is all about, is trying to present the full damages of our clients. Right. We don't want our clients to have their case resolved, either at trial or in a settlement, without getting full value for what they've been through. And it's your job to prove that out in these cases. Christy, can you think of any cases you've worked on where it wasn't as apparent they had a traumatic brain injury at first and what you did to kind of figure that out? 17:55 Speaker 4 Yeah, the more and more cases I work on, I'm realizing how many other injuries are associated with the tbi, like fatigue, depression, trouble sleeping, a lot of things that you don't automatically correlate to a brain injury. And so it's usually just through talking with people who knew the client before and after. A lot of times it's in minor cases because you speak with the child and their parent at the initial consultation, and then depending on the age of the child, probably speak with them directly a few other times. But then you speak with the parent, and they say, oh, no, she was never like that before. You have someone who's seen that person before and after they say she's forgetful, or, you know, it's stuff that the child might not actually realize. 18:50 Speaker 4 You know, she may be forgetting stuff and not realizing she's forgetting to do things, but obviously people around her notice those kind of things are going undone. 18:59 Speaker 1 That's. You know, that's a really good point, too, is I think you also want to look at talking to teachers and getting the educational records of your client. I remember I had a case one time where the client had a traumatic brain injury, and I did not get their high school records because this injury took place 30 years post high school. Well, in their deposition, the defense lawyer asked him what sort of grades he got in high school. And, you know, what do you think he said? 19:29 Speaker 2 Straight A's. 19:29 Speaker 1 Straight A's. Straight A student got, you know, almost a 4.0. And we get his educational records. And what do you think it showed? 19:41 Speaker 2 Not straight A's. 19:42 Speaker 1 Not straight A's. It was like almost Fs. It was like Fs across the board. It didn't hurt the case because it was so far after. But I learned that lesson. Anytime you have a tbi, beat the defense to the punch. And get those educational records yourself. If it's a minor case, you got to talk to teachers because the parents aren't going to have as much credibility. You know, they have an interest in the outcome of the case. You got to find those disinterested witnesses that are really going to pull out the information to present it to the jury in a really effective way. 20:14 Speaker 4 Awesome. 20:15 Speaker 3 So whenever you are looking at the initial consultation with a client, Chrissy, what are some tips that you have to make it more successful? 20:26 Speaker 4 I think that's a good spot to make sure you're getting names and contact information for other people in their lives. That's one thing to do. Talk about, I guess, things they enjoyed doing before the crash versus after. See how their affect and mood have changed. Again, a lot of things are just really hard to get directly from the client. So just making sure you have those good before and after witnesses to reach out to right away so that you can make sure you're noting everything that's changed in this person following the tbi. 21:01 Speaker 2 Yeah, I think it's important that you identify somebody who's close to the client who can help get information. Because clients with brain injuries are not always the most reliable because of the condition that they're suffering from. So you need to have somebody who's close to them, whether it be a spouse, a child, close family member, close friend who can help bridge those gaps and get you the things that you need and make sure the client is being compliant and all the things that are relevant to the case. Because if you don't have that crutch, then these cases can be really frustrating to develop. 21:41 Speaker 1 Yeah. And keep in mind, when you're meeting with that client for the first time, you're only seeing a snapshot of the aftermath. So you don't know if this is what they were like before. And that's where talking to other people is just really critical. We've had cases where we thought there was a. There was a brain injury. And it turns out, you know, the person had these similar problems before the wreck itself. And you always. Or the injury, you always, always got to get prior medical records. Like that's just a. No, non negotiable. 22:13 Speaker 1 You got to get that in every case involving a traumatic brain injury, even if it's a child, you want to get those records and bills and be prepared if you have a case involving a child that the defense will probably go after the client's parents and try to say they did something wrong or it's actually how they're parenting the child and not the injury itself that's leading to these changes. 22:38 Speaker 3 So let's move into depositions and what they look like for these types of cases. What is the most challenging thing about presenting a client for deposition or trial? 22:50 Speaker 2 Not remembering things. I've witnessed that firsthand on several occasions. And it's not the client's fault. They just forget things, and sometimes they'll say things that may not be accurate. And, you know, had they been presented with the documents there in the deposition, their memory would have been jogged. But we know that defense attorneys rarely do that. They like to play the gotcha game when they're asking questions about things. So that's one of the toughest things. And it takes a lot of time to thoroughly prep a TBI victim for a deposition when you're presenting them. 23:34 Speaker 3 Chrissy, what do you think? 23:35 Speaker 4 I agree. That's definitely the toughest part. Burgess and Jack have more recent experience prepping one of our cases for a deposition and trial. 23:45 Speaker 1 We worked on a case recently, Burgess, Chrissy, and I, involving a client who had a craniectomy. I think I'm pronouncing that right. I'm still bad at pronouncing some of these medical terms where essentially half his skull was removed. And that was one of the most challenging depositions I've ever been part of, because the client just was all over the place, and it was very challenging. That case turned out to be a successful result for the client, but it was a very challenging deposition. You know, one thing you may want to consider at trial as well is do I want to have this person in the courtroom during the trial itself? And that's a judgment call, you know, because keep in mind, the jury's going to be evaluating the person the entire time. 24:30 Speaker 1 And if they're in the courtroom, you know, taking notes, looking like they're not injured, even though they have a pretty bad TBI that could impact the way they're evaluating the client and how much they give you at the case. And I know in some cases you want to consider not even having the client in the courtroom. You want to make sure you cover that in board dire, make sure that the judge is aware of that. And it's not a surprise. But that's something you maybe consider, especially if it's a traumatic brain injury where it's not got someone who's missing half their skull, like the case we just talked about. 25:03 Speaker 3 So let's say you have a sort of new associate, new lawyer coming onto one of these cases. For the first time, what is the best piece of advice for lawyers handling their first TBI case? 25:17 Speaker 1 You know, I would say learn the science. You know, really understand what you're looking for. Understand the symptomology, read everything you get your hands on. Attend cles, attend medical education seminars. You know, the CDC has a lot of great information. The National Institutes of Health has a lot of good information. There's a Journal of Brain Injury that has a lot of good information. I think you got to start off by knowing the science first to understand what you're looking for. What do you guys think? 25:49 Speaker 2 Yeah, I think that's important is to be curious and to scratch the edge. There's so much stuff to learn about the brain and how it responds to these sorts of things. I think you also need to be aware of where the pitfalls are, where the defense is going to want to fight the battles and to be prepared to deal with them. Whether it be with neuropsychologists or with imaging. You need to be, you need to understand how they're going to attack your case so that you can be prepared and be a step ahead. 26:25 Speaker 4 I would say just make sure you're looking at a TBI as a process, not just a one time event, because there are so many long term effects that keep coming out. You know, there's more and more literature on the long term, potentially permanent effects of brain injuries. So I just want to make sure that you're not settling or resolving the case right away. You're doing everything possible to understand all the future needs of that client. You know what cognitive therapy, whether A, B and G is appropriate, just making sure you're really understanding that specific injury. 26:59 Speaker 1 Yeah, I think that's one of the biggest mistakes I see young attorneys make is not exploring all the damages that's been put on your client by this injury and not understanding how to present that effectively to a jury and to a defense counsel. Well, I could talk about this for 8, 10, 12 hours, but I know you guys need to get back to work and we need to go help some of these clients. So thanks for everyone for joining us today. I hope you found this information helpful. As always, if you need help on any sort of case, traumatic brain injury, otherwise, please reach out. We're here to help attorneys across the country. You can go to our website at zdfirm.com, reach out call and happy to help on anything until next time, thanks. 27:54 Speaker 1 Thank you for taking the time to listen to this episode of the Effective Lawyer. 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