Traumatic Brain and other Injuries
Our San Antonio, Texas based Legal Group has outstanding results in cases involving airplane crashes, traumatic brain injury, head injury, personal injury, catastrophic personal injuries, mass torts, medical malpractice, professional negligence, class actions, civil rights, environmental disasters and wrongful death.
Economic Losses in TBI Cases:
The following two case scenarios demonstrate damages sustained in a so-called “mild” traumatic brain injury case, as well as a “moderate” to “severe” traumatic brain injury case.
Case No. 1:
A seventeen-year-old young lady is driving home from her evening class at a local college when a car operated by another individual swerves across the center divider and hits her straight on. She is evacuated by helicopter to the closest trauma hospital whereupon a craniotomy is performed in order to release the pressure resulting from multiple subdural hematomas. Additionally, as a result of spinal cord injury, the young lady is rendered quadriplegic. The catastrophic injuries are apparent to all. The victim’s brain damage renders her a functional five-year-old in mental development. She is fed through a gastrostomy, and will require attendant care the rest of her life.
Case No. 2:
A forty-two-year-old working mother of three is stopped before a crosswalk allowing an elderly pedestrian to cross the street with her walker when her car is suddenly and unexpectedly rear-ended. She keeps her foot on the brake in order her vehicle is not pushed into the crosswalk thereby striking the pedestrian. The force of impact appears to have been fairly minor. There is approximately $1,200 damage done to her car. She does not lose consciousness. Other than a diagnosed cervical “strain”, CT scans and other neurologic testing are without adverse finding. Within several months, however, thevictim’s family notices a marked change. She expressed difficulty with attention and concentration and ultimately loses her job. Her life spirals in denial, confusion and discomposure. Finally, a treating health care provider concedes that she sustained a so-called “mild” traumatic brain injury.
The above two case scenarios are a mixture of facts involved in actual cases brought within the court system in the State of California. The effects of brain injury were profound on both victims, although due to the extent of those injuries, their damages were somewhat different.
In a case involving catastrophic injury, the failure to obtain adequate compensation will deprive the victim of the very funds he/she may need in order to survive. Often times, and especially where the victim’s injury dictates on-going medical care, the future economic loss may be staggering.
Contrast the catastrophic injury case with a “mild” TBI case. Often overlooked or misunderstood, a case involving so-called “mild” traumatic brain injury, with corresponding cognitive deficits, will cause a devastating impact on the vocational abilities of the victim, not to mention the impairment to quality of life.
Perplexity and distractibility are among the most common problems associated with brain injury. Any cognitive deficit, including impairment to attention and concentration, will have a devastating impact on an individual’s ability to work and perform properly on the job. Necessarily, the quality of life is deeply affected.
Areas of financial responsibility will generally fall into the following categories: (1) past, present and future medical bills; and (2) past, present and future lost wages and earning capacity. Obviously, the victim has also sustained compensable damages relating to pain and suffering and emotional distress, although those damages are not discussed herein.
(a) Past, Present, Future Medical Expense. The good news is that even if you are without insurance, when you are transported from an accident scene, or place of injury, to a trauma facility, you will not be turned away. Even comatose individuals without insurance will initially be treated by a trauma facility. However, the length of treatment, quality of treatment and treatment options may be curtailed in individuals without appropriate coverage.
If another person’s negligent or intentional acts cause the infliction of traumatic brain injury, there is no reason why that individual should not be held responsible for payment of your medical expenses. After all, if your own insurance is not sufficient to cover the losses, then the taxpayers will be left with the burden of funding whatever treatment you receive. The allocation of financial burden between the taxpayers and a negligent or intentionally wrongful actor should be an easy decision.
To give you an idea of the staggering health care costs involved in a typical catastrophic case, once again turn to Case Scenario No. 1, above. In a 1995 case, proceeding to trial in California, the health care costs of a spastic quadriplegic brain injured young lady were estimated at $106,000 per year through age 45 and then, when her parents die the costs were estimated to increase to $303,000 per year. The total future lifetime costs, assuming a below historically based medical inflation rate of 5%, is over $166,000,000. When reduced to present cash value (using a historic U.S. Government bond rate), the cost is still $14,000,000.
Obviously medical expenses incurred in the “mild” traumatic brain injury case are considerably less. Life care plans developed for victims of “mild” traumatic brain injury do not typically include ongoing orthopedic care, ongoing neurologic care, round the clock therapist care, and other expenses more commonly required in the catastrophic case. However, emergency room bills were likely incurred, and they are never cheap. Radiological studies, including CT scans or MRI may have been ordered. If properly followed, a neuropsychological assessment has been incurred, and rehabilitative training follows. With today’s health care costs, the price tag for such treatment is not inexpensive.
(b) Past, Present, Future Lost Wages/Impairment to Earning Capacity. In a catastrophic injury case, the victim may never be able to hold a job again. Where the victim is an adult parent, children and other dependents are left without any meaningful source of support. Obviously, a life is shattered. The loss represents the entire earning capacity of that adult from the time of injury through his/her work life expectancy. Often times this amounts to over a million dollars even when relegated to present value.
In a case involving “mild” traumatic brain injury, earning capacity is also dramatically impaired. Virtually all tasks performed in the vocational setting require concentration and attention. Where a victim of mild traumatic brain injury has incurred attention and concentration deficits, job performance is adversely affected or outright prohibited. In many instances, the victim will require complete vocational rehabilitation training. Simply put, the victim will be unable to return to his/her former line of work. Obviously, chances for job advancement are greatly curtailed.
(c) The Lawyers’ Role in Presenting Damages. In the litigation arena, it is your lawyer’s job to present your damages in order you be compensated for your injuries. In the catastrophic case, the presentation of such damage figures becomes an art unto itself. Jury alienation is always a concern, even where such damage figures are reduced to present value.
In the “mild” TBI case, the jury must be made to understand that the cognitive deficits affecting this outwardly-appearing “normal” human being will have a devastating impact on that individual’s ability to work and perform properly on the job.
In most instances, in addition to the testimony of treating physicians, life care plan specialists, vocational rehabilitation specialists, and forensic economists will be employed. By using these specialists, a jury is given the entire “needs” framework of the traumatic brain injury victim. The care given in the past, and the reason for that care is explained. Future care needs are likewise explained and all care costs are quantified and relegated to present value. Similarly, earning capacity is explained and mitigating income is taken into account. In all, the jury is left with a thorough understanding of the severity of economic needs of a victim with traumatic brain injury.