Insight into brain function before and after trauma
More and more often today we are confronted with traumatic brain injury (TBI) cases, and the decision “to take or not to take” is not easy. Just this last week I had two TBI cases presented to me. One involved a man who was rear-ended in a car crash, his seatback failed, and he was vaulted out the back window of his sports car, hitting his head on the way, out into a street. Very violent, but although he does not remember doing it, apparently he got up and found the presence of mind to snap a couple pictures of the defendant’s license plate before that driver left the scene. He had an altered state of consciousness noted by witnesses, but he never fully “blacked out.” Tests taken in ER were negative, and within hours he was released home.
That potential plaintiff says he’s not the same person now, and he complains of a different personality, trouble remembering things, and many other scary differences in his brain functioning, or so he believes.
The other case I evaluated involved a young man who was beaten by a bouncer outside a nightclub and who definitely was knocked out, but who also was cleared by the tests in ER, CT scan and x-rays, and sent home. He finds small differences in himself and how he behaves that scare him, and he is convinced that he has a traumatic brain injury.
TBI cases are very difficult to screen, and once accepted are also a challenge to present. Generally, jurors remain very cynical about such cases. There is not surgery to fix such problems. More important than that, there is usually an absence of “proof” aside from the neuropsychological testing you may have done, showing diminished brain functioning. The defense will find a neuropsychologist themselves to say your expert and plaintiff are wrong, and that the problems they claim are really just an invention of their minds. Too often, these cases seem like a whiplash case on steroids. That said, they are often very good cases. Assessing the ones that are credible, that are “true,” is the challenge. Here is a framework for doing so that you may find helpful.
The most amazing and complex organ
First you need to know about the brain, the most amazing organ in the world. Inside are 100 billion nerve cells. It weighs about three pounds. I’ve heard experts describe the texture as similar to thick Jello. One measly little piece of brain tissue, as tiny as a teensy weensy piece of sand, contains 100,000 neurons, two million axons, or fibers, along which the signals flow, and a billion connections. These neurons “talk” to each other across a tiny gap called a synapse, through which signals pass from cell to cell.
Brain cells live longer than any cell in your body. Each neuron will have 5,000 to 10,000 synapses, or connections. This amounts quickly to numbers we cannot comprehend. Five hundred to 1,000 trillion synapses, or connections, exist within everyone’s brain.
The brain sends electrochemical pulses through these connections, making us have the ability to think, move, feel, remember, be motivated, be creative, laugh, cry, and plan. It receives information from the world outside ourselves through our amazing five senses of sight, sound, smell, touch and taste, and is the repository for our souls. The brain processes these things constantly, even while we sleep, and is constantly evolving and changing.
The brain regulates how our organs work, how our entire body functions, and adapts constantly; whether it be to injuries, to illnesses, to stress, to weather, so we can “live our lives.” It is the brain which tells us how to breathe, regulates our heart rate, and runs the entire body. So much of this is simply ignored and taken for granted. We have thick skulls, but inside those skulls is this vulnerable, complex organ.
Mild traumatic brain injuries
So how does the brain get hurt? When are injuries to the brain probable? The injury we often are confronted with is called a “mild traumatic brain injury (MTBI).”
A traumatic brain injury occurs when an external force from a violent blow or jolt to the head occurs and causes physiological disruption. An object penetrating the skull, like a bullet or a shattered piece of the skull, can also cause TBI. Bruising on the brain, torn tissues and axons within the brain, or other changes leading to pressure on the delicate brain tissues or loss of blood or oxygen within the brain can also cause TBI.
A good working definition of the criteria for an MTBI is found with the U.S. Government’s Center for Disease Control:
Any period of observed or self-reported:
• Transient confusion, disorientation, or impaired consciousness;
• Dysfunction of memory around the time of injury; or
• Loss of consciousness of 30 minutes or less.
The classic symptoms of a traumatic brain injury (TBI) are:
• Confusion• Paralysis
• Loss of consciousness
• Dilated pupils
• Vision changes (blurred vision or seeing double, not able to tolerate bright lights, loss of eye movement, blindness)
• Cerebrospinal fluid (CSF) coming out of ears or nose
• Dizziness and balance problems
• Breathing problems
• Slow pulse
• Slow breathing rate, with an increase in blood pressure
• Ringing in the ears or changes in hearing
• Cognitive difficulties
• Inappropriate emotional responses
• Speech difficulties (slurred speech, inability to understand and/or articulate words)
• Difficulty swallowing
• Body numbness or tingling
• Droopy eyelid or facial weakness
• Loss of bowel control or bladder control
The nervous system
More understanding of the brain function is helpful. The nervous system is divided into two separate systems, the central nervous system and the peripheral nerve system. Each controls different functions throughout the body. The central nervous system (CNS) is basically the brain itself and the attached spinal cord which controls our limbs and movements. The peripheral nervous system (PNS) contains all the branches of nerves that go from the brain (cranial nerves) and the spinal cord. The PNS includes what we call the autonomic nervous system, which keeps us alive by regulating our breathing, our heart rate, our digestion of foods and metabolism of those chemicals throughout the body, and the secretion of hormones.
The brain is protected by the skull. The skull is made of eight bones actually, which most people don’t think of. There are actually different plates of the skull which form together as we grow after birth. These bones include the frontal, parietal (2), temporal (2), sphenoid, occipital and ethmoid bones. The face has another 14 bones that form the bone structure protecting the brain from the front. Inside the skull on its base, there are three different areas, the anterior fossa, middle fossa, and posterior fossa.
Areas of the brain
The brain itself is divided into various areas. The brain is composed of three parts: the brainstem, the cerebellum, and the cerebrum. The cerebrum is the biggest part of the brain and contains both the right and left hemispheres. It controls what we call “executive functions” and other higher level functions like interpreting what we see, hear, feel, understanding those sensory inputs, acting on them, and the cerebrum also regulates fine motor movements. The cerebellum sits under the cerebrum and it coordinates our voluntary movements, our balance, in a larger sense, eye movements, and coordination. The brainstem connects the spinal cord to the cerebrum and the cerebellum, and handles the autonomic functions, balance and movement, sleep, sneezing, swallowing, coughing, vomiting, digestion, and sleeping.
Looking at the cerebrum itself, it is that part of the brain we commonly see that has a folded appearance called the cortex. That’s where most of those 100 billion nerve cells, or neurons, are located, firing their electrochemical signals, keeping our spirit alive. These cells are the gray-brownish color and the part of the brain we call gray matter. Beneath that cortex is the white matter, or the axons that connect the neurons and form the pathways for the brain operations.
The brain has two hemispheres, the right and the left, which are joined by a bundle of fibers called the corpus callosum, which allows these two hemispheres to interface in their functionality. Each hemisphere controls the opposite side of the body. Generally speaking, it is the left hemisphere that controls our speech, comprehension, math and writing, while the right hemisphere controls in a general sense creative stuff, music, art, and sports stuff.
Inside the brain itself, the cerebral hemispheres have distinct areas, and fall into four lobes, the frontal, the parietal, the temporal and occipital.
The frontal lobe is said to control:
• Personality, behavior and emotions
• Judgment, planning, and problem solving
• Speech, speaking and writing
• Body movement
• Intelligence, concentration and self-awareness
The parietal lobe is said to control:
• Interpretation of language and words• Sense of touch, pain and temperature
• Interpretation of signals from vision, hearing, motor, sensory and memory
• Spatial and visual perception
The occipital lobe is said to control:
• Interpretation of visual input (color, light, movements)
Finally, the temporal lobe is said to control:
• Understanding language• Memory• Hearing• Sequencing and organization
Memory itself is a function of the brain that is three-fold, short-term, long-term and skill memory. Short-term memory (working memory) happens in the prefrontal cortex, keeps information for brief periods, and is very limited, used to allow us to follow commands, read, and carry out decisions. Long-term memory is processed in the hippocampus of the temporal lobe, and is unlimited. Skill memory, processed in the cerebellum, stores things we “know how to do,” hit a curveball, tie a shoe, use a typewriter.
Analyzing the TBI victim
With this understanding, we can start analyzing the TBI victim by listening to them describe what is different following an incident, some of which we may be able to observe. Each affected area of the brain will have changes that are controlled by the injured region. In a whiplash-type injury, for example, where the brain is bruised by the inner surface of the skull, frontal lobe damage may exist, and the person injured will complain of things like attention problems and changes in personality, for example. If the brain was bounced back and forth and the back of the brain, or occipital lobe, is injured, the complaints could be trouble with vision, or trouble thinking clearly when reading things, or acting on visual stimuli, as examples.
It is important to always remember that if the brain injury is classified as “mild”, this relates to the time period of loss of consciousness or altered state of consciousness, and not to its effects, which can be permanent and devastating. Mild brain injuries will often heal and neurologists commonly point out that most TBI injuries resolve.
It is only perhaps 15 percent of those TBI victims whose symptomology, classically referred to as “Post-Concussion Syndrome,” (PCS) never resolves. These are the folks we must key on to discern and explain their brain injury as lawyers. It takes time, and again, most neurologists seem to say 18 to 24 months, to see if the PCS issues reflected in complaints with headaches, vision and balance problems, emotional lability or memory problems, go away.
Once the brain injury persists more than two years, the victim isn’t going to recover much, according to most studies. They can “rewire” their brains a bit through cognitive rehabilitation and using compensatory strategies to get through life as safely and productively as the brain will allow post-injury, but recovery is limited at that point. There is no pill, no surgery, no healing power known at that point.
How to present a traumatic brain injury
The practical advice I use as a lawyer in TBI cases is not terribly complicated. First, the incident which injured the person better make the average person believe it was enough of a jolt or impact to “scramble those eggs.” If the damage to the car was minor, it’s hard to credibly advocate that a TBI exists, whether it is real or not. A lawyer needs to seek justice for what a jury will find credible, and sometimes that means punting the TBI claim even where your gut tells you it may exist, because it may strain credibility. You need to believe it yourself before advocating for the injury. And it needs to be an injury-producing event that the average cynical person (i.e., a juror) would believe if you’re going to go down that road with the plaintiff in medical management and diagnostic evaluation.
Beyond being convinced by the mechanism of injury and forces involved to the head, which must exist, the next level of scrutiny should be taking an inventory of TBI symptoms from the client, testing them in discussions over time and then cross-referencing their veracity, where possible, with family members, people in the plaintiff’s life, what we call “collateral sources.”
If at that point it seems legitimate to consider, then you should look at what your plaintiff told doctors from the start. Did they complain of any altered state of consciousness (or affirmatively deny it)? Talk with any witnesses from the scene. Their description of violence (or lack of same), movements of vehicles or forces observed on the head and neck in the injury-producing incident, description of how your client reacted, spoke, carried themselves at the scene will be key. A truly brain-injured person will usually manifest symptoms right away, generally speaking. A jury wants to know that there was tremendous violence, observable problems, and that people around the plaintiff have seen and can verify the TBI claim. People are very cynical about TBI cases, and the claim must be backed by the incident and witnesses to the extent possible.
It is true that ambulance records and ER records tend to miss most MTBI claims. The reality is, unless there is gross trauma observed, the acceleration/ deceleration forces that can cause whiplash, and in some cases MTBI, don’t show up in the first hour any more than the usual concussive signs: headaches, neck pain, etc.
It is great when the records give you the foundation for a TBI injury, but if they don’t, yet the incident was sufficiently violent and the PCS symptoms persist and are documented by doctors in the weeks and months following the incident, then a TBI claim may still be viable and provable. Most neurologists, psychiatrists and neuropsychologists agree that a valid TBI injury can exist without documented concussion and proof of brain injury in the early records, because the signs and symptoms are commonly missed by early responders.
Diffuse axonal shear is a common brain injury finding, as contrasted to focal brain trauma that is observable from images showing brain hematoma or other gross injury findings. When a tremendous energy force goes through the brain (in a collision, for example) doctors have found from autopsies on brains that a ripping or shearing of the connective tissues within the brain can occur. Once this happens (often not observable in most imaging techniques) a serious TBI can exist. These injuries are very subtle and can best be proven through merging the various methods of medical evaluation, including neuropsychological evaluation, brain imaging studies and neurological assessment.
Knowledge of the brain – how it is built, what it does and how it is injured – is critical for any lawyer fighting for justice in a TBI case. Presentation of the TBI case requires good expert witnesses, conveying the violence of the incident to the plaintiff’s brain, and teaching the jury about how TBI is provable and the consequences of the injury.
The survivor of TBI walks away, or is carried away, a different person with a different mind and a changed soul. The challenge for the trial lawyer is to communicate that difference and quantify it for the jury.
Joseph M. Barrett served as 2015 President of the Consumer Attorneys Association of Los Angeles. He is a partner at Layfield & Barrett specializing in major, complex cases concerning catastrophic injury or death and impact litigation across the diverse fields of tort law including civil rights, insurance bad faith, product liability, professional negligence, vehicle and premises liability and road design. Mr. Barrett served the Consumer Attorneys Association of Los Angeles (CAALA) as the President in 2015 and is a member and supporter of the American Association for Justice.
Copyright © 2020 by the author.
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