Evaluating and Defending Traumatic Brain Injury Cases
Traumatic Brain Injury cases take many different forms. They range from a simple concussive episode to the severely impaired, traumatic brain injured patient. When evaluating or defending these cases, you first have to know where, on this spectrum, your case falls.
But first, a plug. If you're assigned a "brain injury" file, please reach out to Burt & Payne, P.C. If you have specific questions about your case or just want to chat about how best to understand and then defend it both, Mr. Burt & Mr. Payne have jury trial experience defending these cases to verdict. For each of those cases taken to verdict, we've defended dozens of others. We have reliable and trusted experts, as well as a dedicated litigation team ready to assist. Please don't hesitate to reach out to early.
Start with a careful review of the medical records. Read everything, not just the office visits, the procedure notes and discharge summaries. You need to focus your early efforts on knowing these records and knowing all of them. Focus on each patient interaction recorded in the first hour up to 72 hours, whether that be with the EMT, the intake nurse, or the MRI technician, read everything and begin to compile the evidence. Mark it, flag it, know how to access it again when you come back to the file in a few months' time.
Focus on the imaging. When was it done? Are there references in that imaging reports to similar, past imaging studies? If so, when and who ordered the prior imaging? You'll find that you read, then re-read these reports. Spend time early familiarizing yourself with the terminology used by the radiologists and the physicians. Look at secondary sources, even if it's just Google, to familiarize yourself with the anatomy and the diagnoses. The imaging, in many cases, tells a big part of the story.
If you have a neuropsychology report already done on the patient, read and re-read it. The more you handle the cases you'll come to know the various tests, what they intend to measure, why they're performed and what they do and don't tell you. I often start with their conclusions and then read the report from the beginning. This way, I'm able to better follow the logic of the evaluator (assuming they used logic). Again, make notes of the terms you're not familiar with, and save those notes in a place you'll be able to retrieve. Google and other online resources are a great place to start when you are first examining these reports. You'll end up taking a deeper dive into some salient areas later, but for now just know what the terminology is and what it means genrally.
After you've reviewed the records, reviewed the imaging reports, and familiarized yourself with what you have, begin to think about what you still need. I like to know a patient's pre-accident functional status and I've found that medical records only tell a fraction of the story. Look for school records, employment records, prescription records, government records, disability application records. If there are witnesses available to interview, call them and take copious notes or record the interview.
Cast your net wide and gather as much information as you can possibly obtain. Obviously, you'll want access to social media. We have excellent vendors to help with this type of record and we've used them successfully in many brain injury case. Think broadly, and gather as much as you possibly can.
At some point early in your evaluation, you'll want to consult with the appropriate experts. Again, we've worked with experts in three different states, Utah, Idaho, and Wyoming, so please feel free to tap into our vast expert database to help locate the correct expert early. Here's another key -- do this early, not late. Know your state's rules and laws on whether the expert's reports/preliminary opinions are subject to discovery. We always advise having us involved in retaining these experts as they will fall within the umbrella of the Attorney Work Product Doctrine. If you're not sure, though, please reach out.
When deciding which expert to hire, consider whether you'll be able to have a local expert and, if so, is that expert the most qualified? These things matter when presenting the evidence to the jury, so reach out to us early in this decision making process. Also, consider whether you'll need more than one specialty. For example, do you need a neuropsychologist and a neurologist? Perhaps your case involves carbon monoxide exposure, and perhaps you'll need a toxicology expert. Please do not rule out the need for a neuroradiologist to give you that focused testimony on the brain imaging.
We involve our experts early and often as we evaluate these cases because they're often our best resource when deciding what is needed next. They'll find things in the medical (or employment or school) records you wouldn't have even considered. Let them teach you. This is, of course, why we pay them.
For today's discussion, we'll conclude by talking about the Rule 35 evaluation. If your case is pre-litigation, please do not let the other side burden you with unrealistic and unfair restrictions. Rule 35 provides guidance on what can and cannot be done in the examination so when opposing counsel tells you they want something more (or, in the alternative, they won't allow their client to do or perform some part of the testing), just stop and consider the impact the limitation may have if the case is ever presented to the jury.
If your case is a litigated file, we look forward to working with you, through all of these issues and we always welcome your input. The discovery process will ferret out those "concussive episode" cases from the truly brain-injured patient. Be patient as we work through the subtle nuances of each case, but at the end of the discovery process, you'll have the information you need to fully evaluate a TBI case.
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