MEDICAL-LEGAL MANAGEMENT OF NEUROLITIGATION  [ back to List of Articles ]
Harvey A. Hyman, Esq.

Introduction

This article explores the necessity for a consciously orchestrated, collaborative effort between the neurolawyer (on one side) and the testing neuropsychologist, treatment team and forensic experts (on the other), to successfully manage neurolitigation. The two most significant areas of cooperation are: (1) the technical challenge of identifying and proving the existence, nature and extent of neuropsychological impairment flowing from TBI caused by the underlying accident, and (2) the human challenge of assisting, relating to and working with a person impaired and burdened by TBI.

Team Approach to Diagnosis and Proof of TBI

Neurolitigation has a technical side in which mastery of the complexities of neuroscience and personal injury litigation are critical. The neurolawyer must develop the scientific/medical knowledge and professional contacts to recruit and work in full, interactive partnership with a medical team consisting of treaters, testers and forensic experts. With the neurolawyer's assistance, the team performs the critical objectives of neurolitigation, while empowering the lawyer to understand, explain and prove them in court.

Such objectives include: detecting and diagnosing neuropsychological impairments; screening the client's pre-accident medical, psychosocial, scholastic, employment and claims history to rule out or apportion any prior brain injury, neuropsychological impairment or personality disorder; proving a causal connection between the accident and TBI, and proving the nature and extent of TBI from the accident, through expert selection, administration and interpretation of appropriate neuropsychological, electro-diagnostic (e.g., QEEG) and/or neuroradiological (MRI, CT, PET) tests; developing a life care plan to guide future rehabilitation and ascertain future needs for supervised living, medical care, occupational therapy and neurorehabilitation services; and developing a comprehensive qualitative and quantitative picture of the client's damages, including future medical and rehabilitation costs, loss of enjoyment of life, reduction in earning capacity and future wage loss.

The vast majority of closed head injury cases involve mild TBI (i.e., 14 - 15 on the Glasgow coma scale). It is now well established that closed head trauma without loss of consciousness, mass lesions, focal neurologic deficits or positive MRI findings, can cause DAI (diffuse axonal injury) with long-term, even permanent, neuropsychological impairment of complex high order cognitive functions and associated depression. Unfortunately for the survivor of mild TBI, the vast majority of primary care physicians and most neurologists still cling to the outmoded belief that a "concussion" at most causes a temporary, purely physiologic disruption of brain function, with no structural damage, which completely reverses itself spontaneously within a matter of weeks or months. Such clinicians consider PCS (post concussion syndrome) to be "nothing to worry about," and they consider persistent complaints of PCS 18,12 or even 6 months post-accident, to be a sign of malingering or psychological problems such as conversion disorder, factitious disorder or a continuation of a pre-accident depression which had hitherto escaped diagnosis or treatment.

It is commonplace for this traditional (but scientifically inaccurate) view to be firmly espoused as axiomatic truth by the ER physician, primary care doctor and consulting neurologist who see your clients, before they retain you, and by forensic neurologist-psychiatrists selected by the defense to examine and evaluate your clients. Unless you have your clients interviewed, tested and assessed by top-notch neuropsychologists, who are fully conversant about DAI and know how to prove its existence in court, you are likely to lose the battle of persuasion in the courtroom for the votes of 12 jurors. This should hardly be surprising, since the defense will hammer away at the total absence of "objective" evidence of TBI. Clients may look, sound and act relatively normal to most jurors. Moreover, the vast majority of people have some pre-existing functional limitations, physical ailments, psychological problems or addictions, of one kind or another, which can be blown out of proportion by astute defense medical experts as the "real reason" for clients' post-accident difficulties.

The job of the neurolawyer, in these circumstances, is to turn the tables on the defense position, by marshaling a logical sequence of proof which gradually builds compelling weight in favor of plaintiff's position that the accident caused DAI and that plaintiff's post-accident cognitive and emotional difficulties are brain problems not "psychological" problems unrelated to brain trauma. With the help of the medical team, the jurors must be taught that the brain operates as a whole, like a vast network of separate computers, and that cutting of any of the fantastically complex axonal connections between widely separated cell assemblies can disrupt functions in brain regions remote from the trauma site and cause global cognitive impairments. They must also be taught about the extreme vulnerability of the brain to axonal stretching and transection (primary injury) resulting from the shear forces generated in closed head injury, which is followed rapidly by formation of axon retraction balls, microglial stars and scarring. The kind of mild DAI which underlies mild TBI is bloodless, but as DAI grows increasingly severe it will be accompanied by petechial hemorrhage (scattershot dots of burst capillary blood) or denser hemorrhage from tearing of arterioles or arteries. Very severe DAI kills. Thus DAI is on a spectrum, as is TBI, and the severity of one appears to correlate with the severity of the other.

It is equally important to acquaint jurors with the role of secondary brain damage — the pathophysiologic cascade of metabolic derangements which frequently follows primary structural damage. This may include cerebrotoxic dumping of neurotransmitters such as norepinephrine, dopamine or glutamate at tens of thousands of time their normal output (which can precipitate a massive and deadly influx of calcium ions through neuronal cell body membranes, to which the key processing center for recent memory, the hippocampus, is extremely sensitive); temporary vascular paralysis, breakdown of the blood-brain barrier and leakage of fluid from blood vessels into the brain parenchyma with varying degrees of edema; and diffuse dumping of excess quantities of arachidonic acid and prostaglandins, which depresses brain metabolism and glucose utilization and probably produces a certain degree of lethargy and confusion.

In mild TBI, the chief mechanism of primary damage is clearly DAI. We know this because neuropathologists have made tissue slides of and examined thin sections of the brain of humans with mild TBI who died of unrelated causes and of monkeys, dogs or cats killed after being subjected to freezing lesions or blunt head trauma in the lab, which was carefully administered to replicate the forces which create mild TBI. Those brains showed the same distinctive, unmistakable pattern of axonal shear damage. Further, the shear damage clinically correlates with cognitive dysfunction because it interrupts neurochemical signaling across the whole brain which is akin to wartime cutting of phone lines or bombing of bridges. In partnership with neuropsychologists, neurolawyers must also explain why DAI (the structural/physical substrate of mild TBI, which disrupts the highest level cortical operations like memory, selective attention and concentration) does not show up in the standard test battery administered by the neighborhood neurologist.

DAI is invisible to CT scanning and MRI, at this time in the evolution of those devices, because state-of-the-art machines are not yet sensitive enough to pick up mistype of damage. Individual axons are hollow tubes of widely varying length, but having an average diameter of just over 1 micron (equivalent to I/1000th of a millimeter or .000039 inches). The bloodless transection of tens of thousands of ultra-thin axons, out of the 100 to 200 billion axons in the brain, is too small a blip to be detected on the radar screen of today's CT or MRI. However, this may change in the future as newer generations of machines are produced with greater sensitivity. Mild TBI is subtle both anatomically and clinically. The clinical neurologic exam is designed to detect, and can only detect, obvious brain damage associated with post traumatic seizures, sharply elevated ICP, fixed pupils and stupor (due to mass lesions such as severe cerebral demea, acute hematoma or subarachnoid hemorrhage), tearing of the dura and leakage of CSF through the sinuses or ear canals, or massive destruction of brain structures (70 plus) from bruising, tearing, or crushing of brain contents, which knock out specific, lower motor or sensor functions like moving an arm. Mild TBI involves subtle impairments with subtle compromise of the highest order cognitive operations that make us distinguishable as humans from other animal species. To detect, document, explain, and demonstrate the existence and traumatic causation of mild TBI requires the highly specialized services of a medical-legal team anchored by neurolawyers and neuropsychologists.

Team Approach to Client Relations and Client Management

Neurolitigation also has a human or personal side, which requires neurolawyers to relate to clients and the clients' families in a positive and constructive manner with a blend of compassion, patience, understanding and tolerance. Such relationships develop under very difficult circumstances, which would cause irritation, annoyance and despair in those without adequate preparation, firm commitment and outside help. There are several psychological keys to client management.

First and foremost, attorneys must approach clients as hurting human beings in dire need of a helping hand, and not as objects to be tested, diagnosed, displayed, argued over, bargained for and forgotten once settlement checks are deposited. The emotional, physical and financial welfare of clients must always be the overriding concern throughout the litigation. Additionally, litigation must be subordinated to the status of a tool or means to secure adequate compensation to restore clients to the very maximum degree of pre-accident function obtainable, consistent with severity of initial injury, age, amount of insurance coverage available, presence or absence of loving and supportive family members and other factors which influence TBI case outcomes. Using the knowledge gained from the treatment/forensic team, attorneys should educate clients about the nature, extent and mechanisms of their injuries; the physiologic reserves and neuronal plasticity of the brain and their innate capacity to compensate for and duplicate lost functions; and the necessity for and value of neurorehabilitation. While being truthful about injuries, attorneys should strive to inspire and encourage clients to participate in and make progress in neurorehabilitation, rather than add to their discouragement in an effort to build up the case by portraying them as hopeless wrecks.

Second, attorneys must recognize that they are assisting clients who cannot understand, communicate or even get to their office without varying degrees of difficulty and who are sorely burdened by some combination of the following complaints: headache; vertigo or dizziness; visual disturbances; neck, back and/or extremity pain, disturbed sleep; nightmares; fatigue; reduced attention and concentration; easily distractibility; mental strain from focusing extra hard to accomplish everyday tasks at work or home and having to redo them over and over; anxiety about having his loss of capacities detected by his employer; depression; apathy; disorganization; mood swings; irritability; impulsiveness; poor social judgment; a shattered image of self; memory dysfunction with inability to retain recently or newly learned material; slowed thinking and information processing; impaired communication skills; fear of driving; anxiety over losing his mind, job, house or marriage; lack of insight; defensiveness and the like. Like Alice in Wonderland, clients have been suddenly thrust, without choice, into a whole new world full of neurologists and neurolawyers who are deciding their fate while speaking an incomprehensible jargon. Although now is the time clients most need their human capacities for adaptability and new learning, now is the time those capacities are at their lowest ebb.

Third, because clients are so burdened, attorneys cannot passively depend on them to select, travel to, communicate with and arrange for insurance payments of the physicians they need to see for testing, diagnosis, treatment or rehabilitation. Attorneys must call clients and/or visit them frequently, check up on them regularly by speaking with family members and consulting with their treating physicians and take a very pro-active stance to spot, defuse and handle problems the moment they arise. Forming alliances with willing, interested members of clients' families can help build rapport and trust, increase access to information about clients and create an early warning system when clients are beginning to self-destruct (e.g., by increased drinking, arguing and fighting with co-employees or falling asleep while driving and having near-misses on the highway commute home from work). Alliance with family members also gives attorneys an edge or lever in getting clients to admit to having deficits and getting appropriate testing, care or rehabilitation. Regular communication with clients and key family members will provide a window on clients' ever changing situations and facilitate monitoring of the pace and extent of their recovery over time. If the client's progress is poor and much slower than treaters anticipated, attorneys can investigate the existence of pre or post accident organic, psychological or environmental factors, which are complicating or delaying recovery. This information is extremely useful to promote recovery, neutralize defense contentions of malingering and add value to the injury claim by documenting how the particular frailties or vulnerabilities of the client's brain, body, psyche, family circumstances or employment situation, have combined with mild TBI to produce disproportionate damage or loss.

Although clients have come to the attorney to pursue neurolitigation, typically they are not able on their own to participate in an active, meaningful way in the litigation process, or in their testing and rehabilitation, for that matter, without the attorney's assistance in arranging for systematic intervention. Dispirited and fatigued clients who are pinched by wage loss and delays in securing insurance, and who are plagued by severe headaches, neck stiffness, tension from lack of exercise and concealment of negative feelings, insomnia, nightmares, slowed thinking and poor memory for current information, cannot be partners in the process they have asked their lawyer to undertake.

Helping clients get sufficient, immediate relief from as many symptoms as possible cannot be emphasized enough. Getting and keeping clients as healthy, rested, pain free and positive, as they can be under the circumstances, will empower them to help themselves and help their attorney help them. This will require some or all of the following: pain or anti-migraine medication for headache; physical therapy, massage, chiropractic or acupressure for muscle sprains and strains; and anti-depressant or sleep medication for insomnia; psychiatric counseling and anti-depressant medications for depression; guidance from a case manager or case coordinator regarding how TBI disturbs established patterns of identity, employment, marriage and family life, and developing coping strategies; practical assistance with transportation; legal assistance with securing benefits of coverage under SDI, workers' compensation, private disability, employer health plans, etc.

The force of the client's depression should never be underestimated or ignored. Waking up day after day feeling fatigued, as if cast in concrete, with a fuzzy consciousness, a constantly shifting focus of attention not subject to self-control and a memory like a sieve is bad enough. Worse, however, is the loss of confidence and dread over the future in light of the progressive loss of cognitive prowess, physical stamina and emotional vigor, which previously secured one's position in the highly competitive world of work and enabled one to communicate and interact in a full, spontaneous and pleasurable way with family, friends and co-workers. It is also very demoralizing to be told by your family doctor and the defense neurologist that in light of no focal neurologic deficits and a clean MRI there can be nothing wrong with your brain from the accident, and your continued complaints are psychological — i.e., products of stresses of every day life. Clients need outside help to move through and beyond their depression, back on the road toward greater functionality and greater independence.

No attorney can, or should try to, manage all of these tasks alone. Thoughtful, recruitment, assembly and full use of a cooperating, communicating medical-legal team is essential and indispensable. Depending on the severity of the client's TBI this team may include some or all of the following: neurologist, neurosurgeon, neuroradiologist, neuropsychologist, case manager or coordinator, life care planner, occupational therapist, physical therapist, vocational therapist, speech therapist, vision therapist, and others. These experts can and will help out by providing prompt, accurate diagnosis; a customized treatment plan which fits the available budget; appropriate treatment and rehabilitative therapies; and expert analysis of the key medical-legal issues backed up by any required testimony in deposition, arbitration or trial.

Conclusion

With the help of such a highly qualified team, of neurolawyers stand a much better chance of weeding out cases of false positive TBI; obtaining adequate compensation for clients with authentic TBI; and helping such clients survive the challenges of decreased function, depression and litigation, to reach the promised land of settlement and comprehensive neurorehabilitation, free of the scrutiny of the liability insurance carrier and its attorneys. When, with the help of the team, neurolawyers obtain adequate compensation for their brain injured clients, their job is not over. Their final contribution must be to assure the funds are adequately protected by such devices as a structured settlement or special needs trust to guarantee availability of tax sheltered funds to pay ongoing expenses without suspension or cancellation of critical government benefits such as Medicare, Medicaid or SDI. Because brain impaired persons with a fund of settlement money may tend to attract unscrupulous "advisors," who will recommend "investments" to enrich themselves rather than protect the client's money against erosion by inflation, an annuity, trust or similar financial device is a must.

Although not legally required, as a matter of ethical obligation, attorneys should follow up to make sure clients receive the funds promised in the settlement, enter treatment and apply the funds, as planned, to pay for rehabilitation. Here we reach a gray area because, once the representation is concluded, attorneys may not pressure clients to act in what attorneys perceive to be their best interests, and there are some clients with TBI who resist offers of rehabilitation post-settlement — sometimes viewing the money as a life raft rather than a tool to regenerate their capacity to work and earn new income.

Neurolitigation has its share of difficulties and challenges, running the spectrum from resolute denial of the existence of TBI by the defense to uncommunicative, uncooperative and depressed clients. Why would anyone take it on? The answer is simple. If you stick it out, you can help turn a life around. Working closely with survivors, their families, and doctors, and being truly instrumental in resurrecting these persons — through the combined efforts of all these people — are deeply rewarding and deeply moving experiences.

Trying a case of alleged TBI can be a grave mistake if the attorney has not properly recruited, fully utilized and heeded the recommendations of a top team of treating and forensic experts. To fly solo in these cases is to fly blind. Although an out of court settlement is generally preferable to trial (to spare the client stress and the risk of a defense verdict), if the team consensus is that the client has definite TBI with a significant, long term adverse impact on his life, and team members feel confident this will be proved in court, trying the case makes sense when substantial compensation is not offered. On the other hand, if the team finds the claimed TBI to be of an extremely minimal or questionable nature with the primary source of complaint to be a pre-existing personality disorder or external life stressor, attorneys would serve clients much better by settling, even if this means resisting the temptation to roll the dice and cash in on what a sympathetic jury could potentially view as a brain damage case.