Determining Brain Injury in Court

Discussions and techniques necessary to prove the "invisible injury" in court.

Brain injury is the invisible injury. It's an injury that it's impossible for anybody to see except if the individual has had structural changes to the brain that we could see on a CAT scan or an MRI study, which is often not the case when it comes to traumatic brain injury. So we need a way of explaining to a juror or a professional who has to render assistance to the individual, be it in school, a teacher or somebody, why is the individual no longer the same as they were before the brain injury. And that's the question that we ask, and it's important how we define that question in order to get the answers that we need to establish that in fact the person was injured because the fact that you can't see a brain injury on a CAT scan or an MRI study doesn't mean that it doesn't exist. It just means the technology isn't available for us to establish the injury. So how do we go about doing it? Let's go in reverse order. Let's talk about the family. How important is it to bring the family into the equation to discuss what happened to their loved one? How important is it for a wife to talk about how she's no longer living with her husband anymore, but she has a second child in the family? It's no longer a spouse but a two-year-old in many respects that she has to deal with. That type of discussion is very important for the average person or even a professional to understand what happened to the individual. We talk about how family members can no longer bring individuals into the household anymore because it's become an uncomfortable situation for them at times with a member of a family who has had a brain injury. We could talk about inappropriate behavior that that individual has around other people, the disinhibition, the inappropriate conduct, be it sexual things that happen or just inappropriate things that come out of somebody's mouth because they can't regulate what they say and how embarrassing that is at times and how they can't go out in public with that individual because of that. We talk about their observations of the individual when they go even to a place like Walmart and how that individual acts in public with the bright lights, with the sound, with all the activity going on and how really all that stimulus overload affects them and how they can't function in that environment. We talk about the chores that the person can't do anymore around the house. And it's so much better when somebody in the family explains this or a close friend than the individual themselves. So we bring the family into the picture to explain this. We bring colleagues into the picture from work to explain not why the person is no longer themselves but how the person is no longer themselves. So what we do is bring in before and after witnesses to the brain injury. What was my client like at work before the injury? "Well, they sat at the table with everybody else at lunchtime "and they were congenial and they interacted fine with everybody." "Now nobody wants to sit with that person anymore." "They sit by themselves at a different table "because they're abusive, they're argumentative, they're frustrating to us." "They just talk about the same thing over and over and over again." We bring superiors in to discuss how they are afraid of giving that individual new assignments. Many times the individual could go back doing what they were doing before the brain injury without a problem. But God forbid we put a new task in front of them; how that changes the equation and how they can't do that because it's learning new information, which is the problem; how at times it takes them twice as long to do something that they were able to do before and how instructions have to be repeated over and over for them; how now they need to-do lists in front of them in order to complete a task and how they have to keep coming up and asking for further clarification. These are important things to bring before people so they understand what happened. We need friends to come in and talk about their observation of that individual before and after the accident took place. We need teachers sometimes to come in if it's a young child or young adult to explain the problems in school. Sometimes the problems don't develop for many years, so here we have a young boy or young girl who was doing fine in the first grade, but now they're in the third grade and now they're integrating new information as the brain matures, and we find out that now they're having problems learning new, more complicated math or English skills, and they can't do it. And the reason why they can't do it is because of that brain injury. But we need the teacher to come in to explain how this person was an A student before and how they're a C student now. And that makes these injuries real in a way that neuropsychological testing can't. In order to make the injury real now, we also rely upon different kinds of imaging studies. We are no longer forced to rely upon a CAT scan or an MRI that doesn't show the injury. We can now look at MRI machines that have greater strength at times that pick up the injury. They call them Tesla 3 MRIs that weren't around many years ago that will find injuries that just couldn't be seen by earlier technologies. But we also use PET scans, which are functional imaging studies, we use functional MRI studies that show not the structure of the brain but how the brain functions. We use neuropsychological testing, which opens up a whole other area to us to show the problems that a person has in doing day-to-day tasks. So these are ways that we try to make this invisible injury visible to people so that they understand it. It's not good for the individual themselves to be their spokesperson when it comes to defining their injury and their life. Why? First, many times they don't understand themselves that they have this problem. Many times they won't admit to the problem. Many times they just want the problem to go away, and they want to say they're doing better than they are. And we find this a lot of times with military personnel, we find this with students who are athletes who just want to minimize the problem and go back to their activities and won't admit that they have these difficulties. And God forbid that they have a second injury when they do return to work. So we try to use other people to explain what a person is not capable of explaining for themselves. It's far better to do that because the person doesn't sound like a whiner, doesn't sound like a crybaby and can then just objectively describe for themselves what a day is like, which is important too. Another example of this which we do, and this is important for anybody to understand, is that you really have to become a part of a person's family to do this properly. You can't sit in your office and ask people to come to you to understand what it's like to have a brain injury. You have to go to their home, you have to see the notepads, you have to see the stickies that they have around the house, you have to see how they interact with individuals. You have to go to the grocery store and speak to the clerk at the checkout line, and that clerk will oftentimes tell you, "My God, when Joe used to come in here, "we exchanged greetings, he bought his coffee in the morning "and his newspaper and he was gone." "Now I cringe when Joe comes to my cash register." "Why? Because he can never check out in two minutes." "It takes him forever." "He doesn't have the change right, he doesn't make the change with me, "he forgets that he forgot the quart of milk that his wife asked him to buy, "so he has to run off the line and come back." "He's belligerent to me." There are all kinds of things that this clerk can tell us about this simple transaction that is useful to explain what happened to the temporal lobes and the frontal lobes in this accident and really support the findings of the neuropsychologist so that these neuropsychological tests are not looked at in a vacuum.
Posted on BrainLine March 29, 2010. Reviewed March 20, 2018.

About the author: Michael Kaplen, Esq.

Michael V. Kaplen, Esq. is a partner in the New York law firm De Caro & Kaplen, LLP. Mr. Kaplen is a professorial lecturer in law at The George Washington University Law School, where he teaches a course in traumatic brain injury law. Mr. Kaplan serves on the board of directors for the New York State Academy of Trial Lawyers.

Michael Kaplen