| Brain injury comes in many forms, shows up in different ways and is often very hard to detect and even harder to prove.
The most obvious brain injuries are those involving a direct trauma to the brain with evidence of bleeding or tissue damage. Even this type of brain injury can have "proof" problems when it comes to portraying the specific injury to a jury.
A brain injury that has visible interruption of brain tissue by bone or other fragments is not the problem. The problem is the type of brain injury where the subtleties of MRIs or CT Scans must be interpreted. This creates the potential for a dispute as to whether a portion of the brain is showing evidence of injury, or simply some shading that invites argument as to what it is, what caused it, when it started, whether it has any significance or explains any complaints.
The most difficult brain injury to portray and to prove is the one in which the radiologic evidence is scant, absent or open to interpretation. These particular injuries are described with the broad term "closed head injuries". They cause proof problems for the injured person and the attorney when there are no tests that actually show tissue damage or blood in or around a portion of the brain.
To put it simply, this type of brain injury can't be seen or visualized with present medical imaging tools. That leaves the injured party having to get around the "if you can't see it, it probably doesn't exist" defense.
Such a brain injury is frequently interpreted through neuropsychological testing designed to show inadequate or changed brain function through the performance of psychological testing. This type of testing is designed to show abnormal brain function. These test results raise the question as to what was "normal" for this person before the accident. Often this must be determined in a person who has had no previous record of brain function or IQ testing, and requires having to rely on a subjective description of what the person could do before the injury.
The patient may complain about change in mental abilities or normal intellectual functioning. Regrettably, while very real to the injured person, these changes may not show up on any imaging study. The injured person and their attorney are left in the unenviable position of trying to convince a jury that the complaints are real.
The hurdles and prejudice of the argument that the brain injury victim and his or her attorney must overcome, revolve around the accusation that it is "only in their head". This also implies that symptoms are "made up" and controllable by the one complaining.
The neuropsychological testing is often the only way to inject objectivity into the courtroom so that there is some form of test result "picture" to support and supply a reason for the plaintiff's description and complaint of abnormal brain function and/or mental abilities. The battle lines will involve a dispute as to which tests are recognized or believed to confirm a change in brain function and how those test results were performed and interpreted.
Until medical technology advances, winning and losing a brain injury case may depend upon the credibility of the injured person, the severity of the described head trauma, and the credentials and persuasive ability of the neuropsychologist on each side.
About the Author
Injury Attorney Andrew Rockman is a partner with Pellettieri, Rabstein and Altman who has been representing injured plaintiffs in medical malpractice cases in New Jersey for more than thirty years. He can be reached at 609 520 0900 or http://www.pralaw.com.
|
