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Monday, September 2nd, 2013
Proving the effects of an isolated concussion, especially where there were no findings on MRI or CT scan can be a challenge. Even proof of repeated concussions and the connection to long term symptoms can be problematical as the recent settlement by the NFL and injured players implies.
What Does The NFL Players Concussion Brain Injury Settlement Mean
Melissa Healey writing for he Los Angeles Times is of the opinion that the $765,000 million dollar settlement among 4,500 retired players and the National Football League ” underscores two key facts: that it (brain injury) is difficult to prove and measure – especially after the fact – and that its link to neurocognitive problems that appear years later remains an enigma. (1)
There is conflict amount neuropsychologists whether one concussion can cause long term effects. ( Lasting over three months) My take on this is there is bias in the profession that studies these phenomena. I had two personal injury clients that were incidentally tested by the same neuropsychologist. Although there were findings on test results that showed a change from preinjury to post injury cognitive function, these were either found to be so small as to be insignificant or that the change was due to some other factor.
The statement was also flat out made that one concussion with out evidence of significant loss of consciouness or brain injury on CT scan or MRI could not cause long term effects. When I asked another psychologist to comment he said it could be due to bias of the examiner. Too many professionals believe that people injured by the fault of others have secondary gain and are unwilling except in the most obvious of cases, to connect cognitive dysfunction with MTBI or mild traumatic brain injury.
Studies Are Showing the Connection Between Concussion and Long Term Cognitive Defects
Purdue University researchers studied football palyers at Jefferson High School. Over two seasons they identified 6 concussed players ( those with vissible symptoms) but remarkably 17 players showed brain changes on MRI.
The researchers studied football players for two seasons at Jefferson High School in Lafayette, Ind., where 21 players completed the study the first season and 24 the second season, including 16 repeating players.
“Over the two seasons we had six concussed players, but 17 of the players showed brain changes even though they did not have concussions,” says Talavage, an expert in functional neuroimaging and co-director of the Purdue MRI Facility.
They used sensors in the helmets and functional MRI’s to show the brain changes. The take away was that the number of hits to the head was significant for brain changes even though no on field concussion had been diagnosed. (2)
Clearly Mild Traumatic Brain Injuries Occur in Car Accidents
There can be little doubt that mild traumatic brain injury can occur from car accidents. The mechanism can be either a blow to the head or the whipping of the head back and forth causing axonal shearing and collison of the brain with the skull.
Researchers have shown the the multifactoral cognitive, personality and emotional changes due to mild traumatic brain injury. There is specific research with regard to car accidents. (3)
Even One Concussion Can Be Enough To Cause Long Term Effects
A recent study was undertaken by lead researcher Yvonne W Lui M.D. , Neuroradiology section chief and radiology professor at NYU Langone School of Medicine. This study is published on line for a fee at the Journal of Radiology.
In a press release Dr Li was quoted ” This is the first study to show that the brain undergoes a measurable loss after a concussion. In some patients there were structural changes after a single concussive episode.”
What is even more striking about the press release is that it quotes a figure of 10 – 20 % of MTBI patients continue to experience neurological and psychological symptoms more than one year following trauma. Brain atrophy has long been known to occur after moderate and severe head trauma, but less is known about the lasting effects of a single concussion.
The US Center for Disease Control has some information on brain injury . However this information is rather rudimentary . It is suggested that researching individual studies will aid the practitioner , the injury victims, or the brain injury victim’s advocate or lawyer in learning the long term effects of so called “mild traumatic brain injury. ”
The challenge to getting help and compensation for brain injury victims is not small. Getting those versed in the most current research, paying for sophisticated testing, and what may be most important , steering clear of biased examiners that are giving there opinions on causal relatioship between a traumatic event such as a car accident injury and the residuals of a concussive brain injury, are important considerations.
As seen in the settlement with the footall players, you can find an expert to testify on any side of the dispute. This has long been known in the personal injury legal profession. Facts and opinions are often blurred. However , the NFL settlement also had many other issues involved such as knowledge and duty by the NFL. So the dollar settlement does not necessarily equate with the lack of proof on repeated head trauma having long term effects. After all the words “punch drunk” is the laymans way of saying too many hots to the head caused brain damage.
It is exceedingly hard for me to see how anyone can dispute the long term effects of repeated blows to the head. Nor should such prejudice exist against the fact of long term sequelae from one blow to the brain.
Citations of authority:
Ohio Jury Renders Negligence Verdict On Different Basis Than What Lawyers Argued – Verdict Rightfully Upheld
Monday, October 29th, 2012
A medical negligence case in Ohio resulted in a verdict for an injured young boy against a doctor. What was surprising was that neither side argued the basis of the jury’s verdict. I know both lawyers well and they are super lawyers. But sometimes the jury sees things differently and makes their decision based on facts that neither attorney argued. As long as there is evidence to support the jury’s theory of the case then the verdict should stand.
The facts of the case are critically important . So read them carefully.
On March 22, 2002, Kyle Smith, who was then nine years old, was playing a game with two other children at the home of a family friend. The children were holding hands and spinning around to see who would fall first.Kyle fell and hit the left side of his head against a coffee table. Jesse Smith was in the next room and heard Kyle hit the coffee table so hard that he could hear the glass in the table rattle. Smith took Kyle home and told Longbottom what had happened. After Kyle vomited and began to experience jaw pain, his parents took him to the emergency room at Mercy Hospital Clermont.
While they were waiting to see a physician, an emergency room nurse, Diane Kruse, R.N., gave Kyle’s parents a pamphlet on head injury that stated any head injury should be considered serious, irrespective of whether the person was rendered unconscious thereby, and that it was most important that the injured person be watched closely for the first 24 hours.
The pamphlet stated that a responsible person must stay in the room with the patient and watch for a list of symptoms, including whether the patient is mentally confused, cannot be awakened from sleep, is unusually drowsy or vomits persistently, or the patient’s pupils are of unequal size. The pamphlet further stated that if the patient cannot be awakened, then the person watching the patient was to call 911 and have the patient returned to the emergency room.
Nurse Kruse later testified that it was her usual practice to explain the pamphlet to the parents of a child who suffered a head injury but to defer to the physician the final determination as to whether the instructions in the pamphlet were indicated for any given patient.
Kyle was seen by Dr. Huber, who performed a neurological exam on Kyle and found the results to be normal. He sutured the wound on Kyle’s ear, gave him some medicine to prevent infection, and discharged him. He chose not to order a CT scan for Kyle because he did not believe one was necessary. Kyle’s parents later testified that Dr. Huber told them that they did not need to worry about the instructions in the head injury pamphlet because Kyle’s head injury was “not typical” and that they should just let him “sleep it off.”
Dr. Huber disputed this, testifying that his standard practice was to tell the parents of patients like Kyle to follow the instructions in the head injury pamphlet and that he had done so on this occasion.
Kyle and his parents returned home from the emergency room sometime around midnight. Kyle threw up just a little bit, gagged a few times, and had the dry heaves. Longbottom made a bed for Kyle on the couch so that she could sleep next to him. Kyle went to sleep around 12:20 a.m. Longbottom heard Kyle talking in his sleep at about 2:00 a.m. and then fell asleep herself around 2:00 a.m. or 2:30 a.m. Around 5:00 a.m., Longbottom awoke and noticed that Kyle had vomited, and that he was choking and gasping for air. Longbottom screamed for Smith, who called 911. Just before the police and ambulance arrived, Smith told the 911 dispatcher that when he and Longbottom had asked Dr. Huber at the emergency room if they should wake Kyle every two hours, Dr. Huber told them “no, it won’t be a problem.”
Kyle was air-cared to Cincinnati Children’s Hospital. Upon his arrival, he was found to be near death. A CT scan of his head revealed a massive epidural hematoma causing a midline shift of his brain and brain herniation. Dr. Kerry Crone performed emergency surgery on Kyle to remove the hematoma. Dr. Crone told Kyle’s parents that he was not sure if Kyle would live. After spending several days in the hospital’s ICU, Kyle survived. He then spent several weeks in the hospital relearning such tasks as swallowing, eating, communicating and walking. As a result of the incident, Kyle sustained permanent injury to his brain and now walks with an altered gait.
The matter was tried to a jury over nine days in 2010. Kyle and his parents argued that Dr. Huber was negligent in failing to order a CT scan for Kyle when his parents brought him to the emergency room at Mercy Hospital and that this failure proximately caused Kyle’s injuries. Both sides presented expert testimony in support of their respective positions on this issue.
Another issue raised at trial was whether Dr. Huber advised Kyle’s parents to follow the instructions in the head injury pamphlet, with Kyle’s parents and Dr. Huber providing conflicting testimony on the matter as set forth above. Dr. Huber acknowledged during his testimony that if he actually did tell Kyle’s parents that they did not need to follow the instructions in the head injury pamphlet—an assertion that Dr. Huber denied—then such advice would have fallen below the standard of care.
The jury returned a verdict in favor of Kyle and his parents for $2,412,899 after finding that Dr. Huber had been negligent in the care and treatment of Kyle and that Dr. Huber’s negligence directly and proximately caused Kyle’s injuries. In response to an interrogatory asking them to state in what respects Dr. Huber was negligent, the jury answered, “Based on the evidence, we believe, Dr. Gary S. Huber did not instruct the parents about the possibility of significant head injury or how to observe and monitor Kyle for such injuries.” (Read full case)
The Real Defense Here Is The Doctor Blew It But You Can Not Prove It Made a Difference
A close reading of the case discloses the classical defense that, ” even if I was negligent you did not prove it made any difference in the outcome”. In legal parlance you did not show my conduct was a proximate cause. The Court reviewed the evidence to see if proper instructions on monitoring the child would have caused the parents to bring the child back to the hospital due to worsening symptoms in time for surgery that would have prevented the brain herniation.
Even though no expert directly stated that it would have made a difference, the parents were able to show underlying facts that lay people could understand that tended to make it more likely than not, that the parents would have realized the child was worsening and brought him back to the hospital in time for the doctor to do the surgery. Certainly the family should be aided by the presumption in failure to warn cases that had a proper warning been given it would have been followed. ftp://www.ca6.uscourts.gov/opinions.htm/00a0292p-06.htm
But Was The Time Frame a Problem
He was discharged from the hospital at 10:40. At midnight when the parents got him home the boy threw up a little , gagged a few times and had the dry heaves. If they had been instructed that these were symptoms of progression and to get him back to the hospital he could have been back there by 1:am and surgery commenced. But instead the parents fell asleep and did not attempt to wake him every two hours. So when mother awoke at 5 am she saw her child had vomited was gasping for air and was in trouble so she got the child air carried back to the hospital for surgery.
The surgeon said it was likely that the herniation occurred after the child left the hospital the first time and before they got him back to the hospital , at least prior to the time he was air carried back to the hospital. So there was a window of 5 hours when the herniation occurred. Given the fact that the symptoms of severe brain injury are progressive and that Kyle was responding at 12 am and the mother was still up at 2am and nothing further untoward happened one could infer the herniation occurred sometime after 2 am.
If the parents had not been lulled to sleep by the inadequate discharge instruction they could have had the child back at the hospital by 1am, surgey performed and the herniation prevented. Since the experts testified to underlying facts and opinions the jury should be at liberty to infer from their common experience that this injury would likely been prevented.
I mean in a criminal case they find people guilty all the time without a body or witness to the accident or expert that says the defendant was the killer. Why should a civil case be any different especially where the burden of proof is substantially less.
For another take on this case (that Mike Lyon defense attorney probably loves) check out the blog post by esteemed Professor and trial lawyer Ron Miller. http://www.marylandinjurylawyerblog.com/2012/10/can_a_jury_make_up_their_own_t.html
Oh by the way Professor, can you comment on if a CT scan had been given initially at the hospital would it have shown enough to warrant admission and observation and timely surgery? Please leave it on my Google Plus Profile
By Anthony Castelli Attorney
8170 corporate Park Drive
Cijncinnati, ohio 45242
Friday, August 17th, 2012
Whiplash otherwise known as a flexion extension injury can have serious consequences. Bodily injuryvictims, especially in rear end car accidents, may end up with memory difficulties, mood disorder that can be evidence of a brain injury.Often scoffed at because of ignorance an acceleration deceleration injury is nothing to be taken lighly. Many do not even realize that their inability to concentrate, their forgetfulness, and mood change was caused by a car accident. You may not remember how you were momentarily stunned.
Flexion Extension Acceleration Deceleration Defined Head Injury
Acceleration means speeding up. Deceleration is the opposite. It’s slowing down. Flexion means bending forward and extension is bending back. In a rear end collision the torso is accelerated forward with the car, but the neck supporting the head moves backward in extension. Then the head bounces forward into flexion. Thus we have the term whiplash which describes the head being whipped back and forth and the neck being stretched.
During this movement the brain encased inside the skull can slap the bony portion of the cranium causing injury to the brain. There does not even have to be a striking of the head on any object. Watch the video below to see what can happen in a rear end collision.
A new study published in the July issue of Brain Injury, Chiari and Whiplash Injury, co-authored by Ezriel demonsrates that whiplash may also cause brain changes resulting in brain injury. 1200 MRI scans were studied and the authors concluded that brain injury occurred in 23% of the cases studied.
by Anthony Castelli Attorney Cincinnati brain injury lawyer offering free consultation for serious injury victims
8170 Corporate Park Drive
Cincinnati, Ohio 45242
If you have suffered symptoms of dizziness , memory loss , confusion, headaches , arm pain, hand pain , tingling or numbness your injury may be very serious. You may have a closed head injury called a concussion or a TBI traumatic brain injury or you may have a spine injury. DO NOT try to shake it off or ignore it. Get competent medical attention right away. Then to protect your legal rights contact a personal injury attorney.
Wednesday, July 4th, 2012
As a Cincinnati personal injury lawyer I have had clients with traumatic brain injury. Some had mild concussions with short lived symptoms while others had permanent problems. This morning’s Cincinnati Enquirer caught my attention. It reported on Cincinnati Red Zack Cozart getting hit in the head with a baseball.
John Frey wrote in his story that, “Cozart was given the SCAT2 test at the ballbark. He passed it and did not get a CT scan. ” Cozart’s symptoms were ringing in the ears andheadache. He was taken out of the game, but cleared by the doctor to play the next day. There is a 7 day disabled list and the Reds never considered it. Dusty Baker was quoted, “Not everybody who gets hit in the head is seriously hurt..” Now that really concerns me. A concussion is defined as a disturbance in brain function caused by a direct or indirect force to the head.
Last time I looked I did not see a medical degree behind Dusty Baker’s name. With all due respect, Dusty needs to stick to figuring out how to handle his relievers. How many games has he cost the Reds. But that pales in significance to his off handed statement that not everybody that gets hit in the head is seriously hurt.
Modern medicine is becoming more focused on the perils people face with head injuries. The empahasis is on early detection and early treament. In terms of sports, if a concussion is suspected the participant should be removed from the game and not returned to action until seen by a doctor and cleared to return.
Parents of children participating in sports need to be particularly concerned and watchful. We now know that a second concussion occuring before the first one is healed can be life altering if not life threatening.
Concussions are very serious. We are learning more and more about concussions each year. We know that the younger a person is when they suffer a concussion, the more serious it can be — the concussion takes longer to recover, can more easily recur, and can affect the development and function of the brain. It is critical that concussions be managed by an expert with experience and tools to treat and manage concussions.
Concussion is a common and potentially very serious injury. An estimated 136,000 high school students experience concussions during each academic year. While football-related injuries make up about half of these concussions, other contact sports such as soccer, basketball, and baseball contribute a sizeable share as well.
When there is a suspicion someone suffered a concussion they should be removed from play and medically assessed.
Resources on Concussion diagnosis and Treatment:
8170 Corporate Park Drive
Also office in West Chester, Ohio
Tuesday, August 9th, 2011
Mild traumatic brain injury is a real misnomer. The term mild is terribly misleading. There can be severe and significant symptoms when the doctor diagnoses a mild traumatic brain injury.
When you here these words there is an immediate assumption that the injury is not serious. You can bet that the insurance company will say to you it’s only mild so it’s not that big a deal. But that’s where medicine and insurance companies part ways. The medical definition and the meaning doctors such as neurosurgeons and neuropsychologists attribute to the term mild traumatic brain injury is significant.
Mild only means that the injury is not life threatening and does not require immediate action on their part such as a surgical procedure to relieve the swelling and attendant pressure on the brain. So what is mild traumatic brain injury. It is an injury to the brain caused by blunt trauma or acceleration deceleration. Or as the military is finding out, the concusive force of blasts sending waves through the brain can cause tramatic brain injury. It is important to know that a direct blow to the head is not required for the injury to occur. That is why these injuries often go undiagnosed in a car accident
The following symptoms may be present in a mild traumatic brain injury:
Signs of neurological disorder such as seizures , dizziness and headache. Also loss of memory is significant, as
is disorientation, confusion, inability to recall , feelings of being “out of it” . There can also be symptoms of anxiety and depression. Some times this injury overlaps with post traumatic stress disorder. The brain has experienced trauma , an insult from the outside separate from disease.
The brain is a soft jelly like substance . It can come in contact with the skull causing injury even without a direct blow. Sport injury is another common cause as well as motorcycle accidents with or without helmets. It is important to get the proper care for this injury. Another injury to the brain while the brain is recovering can cause
a death. If the death is the result of negligence this can be termed a wrongful death
Concussion can be another name for mild traumatic brain injury. Concussions are often graded as 1, grade 2 or grade 3. The Cat scan or Mri may be negative , but there can still be serious symptoms. I have represented people injured in car accidents that have had severe headaches persist for many years.
The brain injury association is a good source of information for mild traumatic brain injury.
An MTBI is often referred to as a concussion. Within the category of concussion there are three different grades (1-3). In a Grade 1 or 2 concussion a person remains conscious and in a Grade 3 concussion the person loses consciousness.
It is important to know that MTBIs can seriously affect a person’s functioning. Although a person may “look fine” on the outside, the brain injury may cause changes in thinking and memory which impact daily life.
According to the Brain Injury Association of America there are multiple symptoms those suffering from a MTBI may experience. The recovery from mild traumatic brain injury can differ. Your doctor can guide you on the therapy you need . Do your own research to make sure you have a doctor that knows how to treat a mild traumatic brain injury.
Contact a Lawyer
If you or a loved one has suffered a mild traumatic brain injury due to the negligent or careless actions of another, you may be entitled to money damages to make up for your injuries. An attorney can evaluate your case, provide information about available options, and work on your behalf. Call today for a free evaluation with a Cincinnati traumatic brain injury lawyer. 1-800-447-6549
Saturday, November 27th, 2010
If you have suffered a traumatic brain injury as a result of the fault of another you may be confronted by certain defense tactics. Here is a list of some potential defenses:
1. The plaintiff is malingering.
2. The plaintiff is somatoform. (stress or anxiety is causing the symptoms)
3. The plaintiff looks normal.
4. The plaintiff did not hit his or her head and therefore cannot have a brain injury.
5. The plaintiff was not unconscious and therefore cannot have a brain injury.
6. The CAT scan was normal so the brain is okay.
7. The MRI is normal so the brain is okay.
It is important to first define traumatic brain injury. A good definition is:
“Traumatic brain injury is defined as an alteration in brain function or other evidence of brain pathology caused by an external force.”
The working group defines altered brain function as 1 of the following clinical signs:
Any period of loss of or decreased level of consciousness;
Any loss of memory of events immediately before or after the injury;
Neurologic deficits such as weakness, loss of balance, change in vision, paralysis, sensory loss, or aphasia; or
Any alteration in mental state such as confusion, disorientation, or slowed thinking.
There are many ways to combat these defenses. One simple method is the lay medical before and after witness. These are people that know the injured party before and after the traumatic event and can describe differences in their behavior. Obviously there is much more to it than just this. So if you have any of these symptoms you should seek an experienced brain injury lawyer </a
Anthony Castelli attorney welcomes your call to discuss for free you concussion brain injury 1-800-447-6549
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