Sleep Better at Night With Answers to Your Top Questions on Virginia Brain Injury Claims
Experiencing something as traumatic as an accident in Chesterfield County can leave your head spinning with questions and uncertainty. Get the answers you need fast in this FAQ series from Richmond brain injury attorney Kevin Mottley.
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If I told the EMT that I did not lose consciousness, do I have a case for my traumatic brain injury?
One of the standard questions a first responder (emergency medical technician, or "EMT") will ask a person who has been involved in an accident is whether they "lost consciousness." Depending on the answer, the EMT will put that information in their report. Then, when the injured person gets to the emergency room, they will again be asked whether they lost consciousness. Once again, the answer given by the patient will be put in the emergency room report.
This raises the question: "What if I told the EMT and the emergency room doctor that I did not lose consciousness? Does that mean I have no case for a traumatic brain injury from the accident?"
No, it does not.
A person who loses consciousness is not aware of having lost it. Therefore, they're not able to accurately respond to that question. Only if a third person was there observing what happened (rarely the case) can loss of consciousness be accurately determined by simply asking the question. Loss of consciousness means that the person has a gap in their ability to recall a period of time. That lost period of time may be only a few seconds. If a person responds to a question about loss of consciousness by saying that they "don't know" or "no," that fact does not medically rule out the possibility that a concussion occurred. Determining whether a concussion, or mild traumatic brain injury, occurred, requires the medical provider to dig a little deeper into investigating what happened.
Another factor that plays into this issue is that emergency personnel, including EMTs and emergency room doctors, are typically more focused on other problems with a patient than they are with investigating whether a concussion occurred. To illustrate the point, let's assume a patient was in a car accident in which they broke their leg and suffered a nasty gash on their hand, which is bleeding profusely. When they arrive at the emergency room, they are fully awake and oriented. They are as conscious as a person can be. But they're bleeding and in a lot of pain. The ER doctors are going to focus, first, on stopping the profusely bleeding hand and, second, on getting down to fixing that broken leg. They'll most certainly ask whether a loss of consciousness occurred. The answer will in most cases be "I don't know" or "no," at which point the medical personnel will check that box off in their report and move on.
This sort of dynamic is why a recent study showed that more than 50% of mild traumatic brain injuries (concussions) are not diagnosed in the emergency room.
Here at The Mottley Law Firm, most of the traumatic brain injury cases we handle involve a person who either responded "no" or "I don't know" to the question, "did you lose consciousness." That is the fact pattern we see most of the time in mild TBI cases.
If you or a loved one have suffered a mild traumatic brain injury or concussion due to some sort of accident or mishap, feel free to contact us about the matter. We focus a significant portion of our practice on helping people in this position with their legal needs.
What is post-concussion syndrome?
Post-concussion syndrome, or postconcussive syndrome as it is sometimes referred to ("PCS"), is a diagnostic label applied to a set of symptoms that sometimes arise following a concussion. These symptoms may last days, weeks or months, but a diagnosis of PCS is usually not made until several months following an injury. The symptoms are the same as those for a mild traumatic brain injury ("TBI"). They include headache, difficulty concentrating, irritability, and emotional and behavioral changes.
Is a “concussion” a brain injury?
A concussion is a type of traumatic brain injury. It is normally described by health care professionals as a “mild” traumatic brain injury because concussions are normally not life threatening. Even so, their effects can be serious. Symptoms may go on for weeks and may not even appear until an extended time after the accident.
How common are traumatic brain injuries?
A traumatic brain injury (or “TBI”) is a serious public health problem in the United States according to the Centers for Disease Control. According to the CDC’s research, each year, TBI contributes to a significant number of deaths or permanent disability in the United States. It is estimated that, each year, at least 1.7 million TBI’s occur in the U.S., most of which are considered “mild” traumatic brain injuries caused by a concussion.
How do you, as the lawyer, present my brain injury case to the jury?
Successfully presenting a mild traumatic brain injury case to a jury is all about demonstration and corroboration. What do I mean by that? Well, if a mild brain injury case is going to trial, it is for one of two reasons. First, the insurance company and its lawyers do not believe that the plaintiff actually has a brain injury. Second, the insurance company and its lawyers do not believe the plaintiff should receive money for many of the future rehabilitative expenses that will be necessary to help the plaintiff successfully recover and live a normal life. So that is the battleground in the case.
They say that “seeing is believing.” When it comes to proving that a brain injury occurred, I do believe in that saying. To win, you must demonstrate the injury to the jury. To demonstrate that the plaintiff does have a mild traumatic brain injury, we use numerous demonstrative exhibits and other visual exhibits (such as photographs) to show the severity of the impact. We also use illustrations and models of the skull and brain, and we have the plaintiff’s doctor visually show the jury exactly where and how the plaintiff’s brain was injured. Every case is different but, in every case, the trial lawyer wins by successfully demonstrating the existence of an injury.
Equally important to the plaintiff’s success is having friends, family, coworkers, and physicians come in to court and tell the jury that they have personally witnessed and observed a change in the plaintiff since the accident. This is incredibly important to a successful case.
How do you decide whether to take my brain injury case?
I have certain criteria that help me decide whether to take a personal injury case. Here are some of the most important questions I ask when making this decision in a mild traumatic brain injury case:
- Does the potential client have an unresolved, symptomatic mild traumatic brain injury, and is this injury supported by the potential client’s medical records? In other words, will a doctor who has examined and treated the potential client be able to testify that the person has a brain injury?
- Does the potential client have friends, family members, co-workers, or doctors who have observed the plaintiff and who are willing and able to come to court and to the jury that there has been a notable change in the plaintiff since the accident?
- Was the brain injury caused by an accident, and can it be successfully demonstrated to the jury how the injury was caused by the accident?
- Who is the potential defendant, and does that defendant have sufficient assets or insurance coverage to satisfy a significant judgment for money damages in the case?
- Who caused the accident, and was that person negligent? If the potential client was partly to blame for the accident, this is a problem because Virginia law would bar the injured person from recovering any money from the potential defendant, even if the defendant was also negligent.
What are the symptoms of a mild traumatic brain injury?
The most common symptoms of a mild traumatic brain injury are
- Visual impairments
- Memory loss
- Poor concentration or attention
- Sleep problems
- Dizziness or balance problems
- Irritability and emotional changes
- Nausea or vomiting
- Loss of smell
- Sensitivity to light or sound
- Difficulty thinking
What is “anoxia” and “hypoxia”?
When blood flow to the brain is depleted of oxygen, then irreversible brain injury can occur from anoxia or hypoxia. Anoxia is when the brain receives no oxygen. Hypoxia is when the brain receives reduced oxygen. This can occur within a short period of time, like minutes. It can be caused by medical emergencies like heart attacks or respiratory failure. If this type of brain injury happens, the consequences can be severe.
What is a “deceleration injury” (diffuse axonal injury)?
This sort of injury to the brain occurs when sudden movement of the skull through space (i.e., acceleration) occurs. When the skull stops moving, for whatever reason (say, for instance, it hits something or is suddenly forced to move in a different direction), then the gelatinous brain inside the hard skull continues to move inside the skull. When this happens, an injury to the brain occurs. This is often referred to as “diffuse axonal shearing” because, when the brain is slammed back and forth in the skull, it is compressed and stretched. The fragile “axons”, which are part of the nerve cells in the brain and spinal cord, are also compressed and stretched. When this happens, they are injured. This is called “axonal shearing” and, when this happens, the brain cell dies.
What is the Ranchos Los Amigos Scale?
Like the Glasgow Coma Scale, the Ranchos Los Amigos Scale is a system used by medical professionals to evaluate victims of traumatic brain injuries, and is based on cognitive and behavioral presentations as victims emerge from a coma. The scale runs from 1 to 8, with 1 being a person who is non-responsive and has no responsive cognitive functioning, while a score of 8 indicates appropriate and purposeful functioning. Victims of traumatic brain injury will progress up the scale as they recover. Recovery for victims is different from person to person, and some victims may plateau at a certain level on the scale.