Proving in Court That a Brain Injury Merits Workers Compensation Shana De Caro, Esq. and Michael V. Kaplen, Esq., BrainLine

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  My wife and I are planning our estate and we want to make sure that our daughter, who needs fulltime care after her brain injury, is provided for financially. What kinds of things should we be talking about with our attorney?

   

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• Ask the Expert: The Importance of "Showing" a Brain Injury

While at work I was hit in the head with a 10-pound object that fell about 8 feet and struck me on the right side of my head just above my temple. I had a huge bump and was nauseated and dizzy about an hour after being struck but did not seek medical attention. I did, however, file a report at work. For the next 13 days I had headaches, issues concentrating, and just did not feel right.

By the second week, I was really messed up. I felt confused, unable to think and comprehend. I told my girlfriend that I was not feeling right and needed to go down to the basement to rest and take my mind off of things. When I got to the bottom of the stairs I yelled to her “I need help.” The next thing I knew paramedics were standing over me and I was in and out of consciousness for the next two days. I spent six days in the ICU. Results from the MRI showed bleeding in three locations of my brain. One of the locations was noted as the right temporal lobe, where I had gotten hit near my temple 13 days prior at work.

How likely is it that the hit on the head at work caused me to lose consciousness two weeks later?

Is there a way to prove my hospitalization and medical problems two weeks later were caused from the original hit in the head? I ask because I had a workers compensation hearing that said the two injuries were unrelated.

Whether an event caused a medical condition that develops days, weeks, or even months later requires an explanation of the concept of “legal causation.” In order to successfully establish the link between an event and an injury, an attorney must consult with and obtain the expert opinion of a qualified medical provider, usually a board certified physician in the specialty of medicine that is being discussed. It is impossible to legally establish the link without the benefit of expert evaluation. After a medical expert has evaluated the event and the injury and is able to establish that the first caused the latter, he or she must be willing to testify to that fact in court.

The question that the expert witness must address in his testimony is: “Do you have an opinion with a reasonable degree of medical certainty if event X was the competent producing cause of condition Y? If yes, please give the basis for your opinion. At which point, the expert witness will explain to either the court or to a jury why he believes the medical condition was caused by the traumatic event. Without this, the “legal causation” cannot be proven.

The explanation usually explores the medical condition itself, the medical literature in support of the opinion, the biomechanics of the traumatic event and how that caused this particular condition to develop. The expert will need to establish that the individual did not suffer from this condition prior to the event and he must then rule out other reasonable causes for the development of the condition.

In cases of traumatic brain injury, an attorney needs to demonstrate in the courtroom that this type of trauma is known to be the cause of a particular condition and provide the medical evidence in the particular case to establish how the individual’s signs and symptoms evolved. It is well known in the medical literature that not all signs and symptoms of a traumatic brain injury develop at the time of the initial trauma. Signs and symptoms may take hours, days, or even weeks to manifest themselves. The initial onset of nausea and vomiting soon after the impact from the object falling on the individual’s head are the classic presenting signs of a concussion. The confusion and other symptoms that developed over the next two weeks can also be attributed to the original injury. A qualified expert relying on those facts and his expertise can form an opinion that the event competently produced the signs and symptoms of this individual’s concussion.

In the legal arena, the opinions of experts are tested by attorneys representing the other side through the process of cross-examination and by the introduction of other experts’ testimony intended to contradict the injured individual’s expert witnesses. The burden of proof is upon the injured individual. The finder of fact, either the judge or a jury, must determine if the injured person’s proof met the legal burden of proof and must determine if “the case proved by a fair preponderance of the credible evidence.”

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Shana De Caro, Esq. is an officer of the American Association for Justice, Traumatic Brain Injury Litigation Group and serves on the Board of Trustees of the Civil Justice Foundation. She serves as editor of the New York State Academy of Trial Lawyers' monthly legal update. She has been a member of the Medical Malpractice Review Panels in New York State and is a former law secretary to a Justice of the Supreme Court, Kings County. She has served as a member of the Executive Committee-Chappaqua PTA Special Education Pre-K through 12th Grade. Ms. De Caro is a trial and appellate lawyer focusing her practice on representing victims of traumatic brain injury and other catastrophic injuries. She has been selected for inclusion in Who's Who of American Women and Who's Who in American Law. She has been named one of the top 100 trial lawyers in New York by the American Trial Lawyers Association and is an Elite Lawyer. Ms. De Caro can be reached at De Caro & Kaplen, LLP, 427 Bedford Road, Pleasantville, NY 10570; 914.747.4410 or toll-free at 1.866.BRAIN.LAW.

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