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Traumatic Brain Injuries and the Law

A traumatic brain injury (TBI) is a change in mental or cognitive status as a result of a blow or jolt to the head. TBIs can range from mild and temporary, to severe and permanent. The Centers for Disease Control (CDC) reports that there are at least 1.7 million TBIs per year in the United States. TBIs “contribute to a substantial number of deaths and cases of permanent disability.”

TBIs occur when the head strikes, or is penetrated by, a fixed object. They are common in automobile or pedestrian accident. The impact between the brain and skull can cause normal brain activity to be interrupted.

Types of TBI. There are two types of severe TBI. A closed TBI occurs when impact causes movement of the brain inside the skull. A penetrating TBI occurs when some object penetrates the skull. Closed TBIs are much more common.

 Depending on the severity, a TBI may effect cognitive function, motor function, sensation and emotions. The CDC reports that 5.3 million Americans are living with TBI-related disabilities.

 What to do if a head injury occurs. If a head injury occurs, you should seek medical attention as soon as possible. But the CDC also provides the following chart for evaluating the injuries:

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TBIs and the Law. If someone else is responsible for causing a TBI, the damages that flow from the injury can be recovered. Unfortunately, TBIs are often misunderstood, or under-appreciated, because they cannot be seen by the naked eye. This presents a formidable challenge to a trial lawyer who must convince a skeptical jury (or insurance company representative) that although the client “looks okay,” he/she may have severe injuries. Further, because TBIs often are not seen immediately after the accident, people tend to discount their effect. Jurors may question the severity of the case by pointing out that “nothing was seen during the emergency room visit.” This leads to the incorrect assumption that the injury is not that bad. Just as years of beach erosion will ultimately devastate a sandy beach, the results of a TBI can take months or years to develop.

 Various techniques can be used to show the seriousness of the injury. For example, experts such as neurologists or neurophyschiatrists can perform tests to show a decline in cognitive ability. These tests can be demonstrate striking “internal” changes in a visual way. A decrease in IQ, the ability to concentrate, or to react appropriately to emotional stimuli can be shown.

 Severe TBIs can necessitate years of therapy and treatment. The treatment can be very expensive and, if considered “experimental” by insurance companies, may not be covered.

Perry Charnoff is a proud supporter of Brain Injury Services.

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