A.  What Is a Traumatic Brain Injury.

         i.  Many terms are used interchangeably describing brain injuries.

    Over the years, the term “traumatic brain injury” has been used interchangeably with the terms “brain injury,” “head injury,” “closed head injury,” “concussions” and “post concussive syndrome.”

         ii. Confusion in the field because of linguistic terminology.

    Unfortunately, one expert’s diagnosis when using one of the above terms may be different than another’s. For instance, some believe that one can have a “closed head injury” or “head injury” without having an injury to the brain. Others use those terms synonymously with “brain injury.”

    The diagnosis of “post concussive syndrome” or “concussion” also does not necessarily clarify the fact as to whether or not there is an injury to the brain.

         iii.Distinction can be important.

    The distinction as to whether a person has actually had their “brain damaged” can be significant both for medical treatment and for litigation purposes.

         iv. The definition of traumatic brain injury (TBI) used in this article.

    For purposes of this article, a traumatic brain injury (TBI) will be defined as an impact to the head which results in any or all of the following:

         ►    loss of consciousness.

         ►    loss of memory as to events surrounding the accident.

         ►    neurological deficits that may or may not be transient.

         v.  A move toward a simple diagnosis.

    This definition of traumatic brain injury and some of the alternative definitions and diagnosis will be discussed later in this article.

    There has been a move in the field in recent years to use the term “traumatic brain injury” to describe the set of symptoms that follow a concussion and actually involve damage to the tissues of the brain. However, there will probably always be some debate on the signs and symptoms that must be present to make that diagnosis.

    B.  Who Can Sue for a Traumatic Brain Injury.

    Any person, whether an adult or a minor, can sue if they suffer a traumatic brain injury as a result of the misconduct of another person or entity. This includes cases in which the plaintiff himself or herself is partially responsible for the accident which caused the traumatic brain injury and multiple defendants have caused the traumatic brain injury through their wrongdoing.

    The spouse of the injured plaintiff can also bring suit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

    C.  Who Can Be Sued for Traumatic Brain Injury.

         i.  Any person or entity whose wrongful conduct caused the traumatic brain injury (TBI).

    Traumatic brain injuries can be caused by hundreds if not thousands of events. If one of these events was set in motion by another’s wrongful conduct, then that person or entity can be sued.

         ii. Possible defendants in a traumatic brain injury case.

              a.  Owners and operators of motor vehicles including:

         ►    automobile drivers and owners.

         ►    truck drivers and trucking companies.

         ►    bus drivers and the bus companies.

         ►    taxi drivers and taxi companies.

         ►    motorcycle operators.

         ►    boat operators and owners.

         ►    bicycle operators.

              b.  Repair shops:

         ►    shops that repair motorcycles, automobiles, trucks, taxicabs, buses, bicycles, scooters and any type of vehicles used for transport.

              c.  Product manufacturers and sellers of all kinds of goods including:

         ►    motor vehicle manufacturers.

         ►    motorcycle manufacturers.

         ►    bicycle manufacturers.

         ►    helmet manufacturers.

         ►    all types of protective headwear manufacturers including helmets.

         ►    drug manufacturers.

         ►    boats.

         ►    manufacturers of any product or device that is improperly designed, that fails, explodes or malfunctions and causes a head injury.

              d.  Public and private owners of land, roadways, businesses and homes for dangerous conditions or negligent acts.

         ►    public entity for dangerous condition of public property and failure to warn of dangers.

         ►    private possessor or owner of land for dangerous condition of public property and failure to warn of dangers.

         ►    landlords for injuries to tenants and other people on their property.

         ►    business owners.

         ►    homeowners.

              e.  Employers.

         ►    employers of any employee who negligently causes a traumatic brain injury.

              f.  Airplane operators and owners.

         ►    airplane and airline owners and operators as well as other aviation-related owners and operators.

              g.  Anyone who intentionally or with careless disregard causes a traumatic brain injury.

         ►    anyone who intentionally or through careless disregard of the safety of others causes somebody a traumatic brain injury.

              h.  Anyone whose negligent act causes a traumatic brain injury.

         ►    anybody whose negligent act causes a brain injury.

              i.  People with special duties of care who fail to act appropriately.

         ►    anybody who owes a special duty to another person and fails to act which causes a traumatic brain injury. Samples of this type of liability would include:

              ∙    responsibility of teachers and other school officials for children.

              ∙    responsibility of all caregivers and care providers for children.

              ∙    responsibility of caregivers and caretakers of the elderly.

              ∙    responsibility of caregivers and caretakers of dependent adults.

              ∙    if there is no immunity involved, a person who takes charge of another person whom he or she knows is likely to cause harm to others if not controlled and then fails to exercise reasonable control.

              ∙    in limited situations, a Highway Patrol officer or police officer who promises to protect a person and is not immune from responsibility under the law.

              ∙    security guards in certain situations.

         ►    doctors and other healthcare providers who have a duty to act within the standard of care and cause traumatic brain injury to their patients.

         ►    obstetricians and other physicians and nurses involved in the monitoring of pregnancies and delivering babies.

         ►    all owners and contractors involved in building and construction.

         ►    all entities that are involved in maintenance.

         ►    hospitals and other businesses.

         ►    toxic manufacturers, suppliers and others involved in the possession or handling of toxics.

              j.  There are many potential defendants because of the many ways a person can develop a traumatic brain injury.

    The list could go on and on because of the many different ways in which a person can develop a traumatic brain injury. If someone has developed a traumatic brain injury as a result of what may have been somebody else’s fault, the person or their family should consult with an attorney to learn about their rights and possible defendants to sue.

    D.  The Importance of Understanding the Neuroanatomy of the Brain and Brain Function to Be Able to Assess Traumatic Brain Injury Cases.

         i.  Understanding neuroanatomy allows an attorney to understand brain dysfunction and brain function.

    The previous section dealt with the findings that most clinicians believe are necessary to diagnose a traumatic brain injury immediately post accident. Before discussing some of the controversies surrounding the diagnosis and the residual effects of traumatic brain injury, it is important to understand the neuroanatomy of the brain.

    What follows is a simplified but, hopefully, useful discussion of brain anatomy.

         ii. Weight of the brain.

    An adult brain weighs approximately three pounds.

         iii.What surrounds the brain.

    The brain is surrounded by a bony chamber or vault known as the skull.

         iv. What lies between the skull and the brain.

              a.  The meninges.

    Between the skull and the cerebral hemispheres of the brain lie three coverings or membranes which are termed the meninges.

                   1.  Dura matter.

    The outermost membrane is known as the dura matter. It is comprised of thick elastic material which adheres to the inner surface of the skull.

                   2.  Arachnoid membrane.

    Below the dura matter is the arachnoid membrane.

                   3.  Pfeia matter.

    The third membrane is known as the pfeia matter.

                   4.  Falx cerebri.

    The outermost covering of the brain, the dura matter, forms what is known as the falx cerebri, which divides the two cerebral hemispheres.

                   5.  Tentorium cerebelli.

    The dura matter also forms a protective covering known as the tentorium cerebelli, which divides the most posterior (rear) part of the cerebral hemispheres from the cerebellum. In addition, the dura matter separates the two cerebellars from the spheres and forms the falx cerebelli.

                   6.  Cerebrospinal fluid.

    Located between the dura matter and the underlying subarachnoid membrane is cerebrospinal fluid which surrounds the brain and serves as a kind of shock absorber whenever the skull makes contact with an immovable object or is rapidly accelerated or decelerated (i.e., rapidly speeded up or slowed down).

         v.  The importance of the cerebral hemispheres.

              a.  Left hemisphere and right hemisphere generally.

    The cerebral hemispheres are roughly symmetrical with one being known as the left hemisphere and the other being known as the right hemisphere.

              b.  Traumatic brain injury cases mostly focus on damage to the hemispheres.

    In analyzing traumatic brain injury cases, much of the focus lies on the cerebral hemispheres.

              c.  Functions of the cerebral hemispheres.

    The cerebral hemispheres are the part of the brain which is concerned with such functions as:

         ►    intelligence.

         ►    language.

         ►    perception.

         ►    judgment.

         ►    memory.

         ►    problem solving.

         ►    knowing.

         ►    thinking.

         ►    social behavior.

         ►    personality.

         ►    emotions.

              d.  Cerebral hemispheres divided into four lobes.

    The cerebral hemispheres themselves are divided into four lobes:

         ►    the frontal lobe.

         ►    parietal lobe.

         ►    occipital lobe.

         ►    temporal lobe.

              e.  The functions of the various lobes of the cerebral hemispheres.

    The frontal lobe -- makes up 44% of our brain and is responsible for our executive functions such as:

         ►    initiation.

         ►    organization.

         ►    planning.

         ►    execution.

         ►    regulation of motor movements.

         ►    almost all voluntary movements.

    The temporal lobe -- contain the limbic system which allows for:

         ►    learning.

         ►    retaining new information.

         ►    regulating emotional behavior.

    The parietal lobe -- this lobe is sensory in nature and creates our individual body awareness.

    The occipital lobe -- this lobe deals with:

         ►    vision.

         ►    spatial recognition.

         ►    image recognition.

         vi. Knowledge of brain anatomy and function helps plaintiff attorney establish relationship between trauma and injury.

    It is important for a plaintiff’s attorney litigating a traumatic brain injury case to understand the factors involved in brain anatomy and function to help prove that a particular trauma to the head is consistent with the type of dysfunction from which the plaintiff now suffers.

    E.  Understanding the Type of Injuries That Can Occur to a Brain.

         i.  It is probably more important for an attorney to understand the type of injury to the brain rather than the diagnosis given to a plaintiff.

    Setting aside the issue of diagnosis, it is important for a plaintiff and plaintiff attorney to recognize the type of injuries that can be caused to a brain. A discussion of some of these injuries will follow.

         ii. Concussions.

              a.  Concussions most frequent brain injury.

    Concussions are the most frequent type of traumatic head injury effecting the brain. They usually follow a rapid deceleration.

              b.  Impact with an object not necessary.

    It is recognized that physical impact with an object is not necessary to cause a concussion -- rapid movement of the brain inside the skull is enough. (However, from a proof point of view in a traumatic brain injury case, it is very helpful if there was a physical impact.)

              c.  Microhemorrhaging within the brain.

    Most experts believe that concussions usually involve microhemorrhaging from stretching or shearing of the brain.

              d.  Actual damage to the brain in concussion rarely is found on radiographic examination.

    Unfortunately for plaintiffs in traumatic brain injury cases, this type of microhemorrhaging and stretching or shearing does not traditionally show up on diagnostic testing or imaging.

              e.  Typical symptoms that follow concussion.

    Symptoms of a concussion vary with individuals, but include usually some combination of the following:

         ►    patient describes self as dazed.

         ►    confusion.

         ►    disorientation.

         ►    subtle changes in personality.

         ►    irritability.

         ►    chronic fatigue.

         ►    frustration.

         ►    intolerance of others.

         ►    bright lights are disturbing.

         ►    loud noises are disturbing.

         ►    need for increased rest and sleep.

         iii.Contusions.

    A contusion is a bruise on the surface of the brain. The victims of contusions have symptoms fairly similar to people with concussions; however, contusions will usually show up on CAT scan, MRI or x-ray because blood will fill in a space normally filled with brain matter, spinal fluid or other normal tissues in the brain and surrounding the brain.

    Contusions can frequently result in permanent changes in personality, cognitive abilities and behavior.

         iv. Severe brain damage.

    Although there are diagnostic controversies as to what does or does not constitute “severe brain damage” and what it should be called, it is generally agreed that severe brain damage is caused by movements of the brain which rotate and shear the inner white brain matter and produce diffuse (spread out) and large areas of dysfunction in the mid-brain, brainstem and subcortical areas.

    This type of brain damage is sometimes referred to as inner cerebral trauma or severe diffuse axonal brain injury.

    Traumatic brain injury victims with this degree of brain damage are generally in comas from a few hours to many years and they are highly likely to have some residual and permanent brain damage and sometimes severe permanent brain damage.

         v.  Secondary brain injury.

    Secondary brain injury occurs when a person receives a blow to the head, usually a relatively minor impact. There are no immediate traumatic brain symptoms; however, the blow to the head is sufficient to cause swelling or edema and over a period of hours, days and, in rare occasions, weeks, as the swelling finally grows to the point that it affects brain function.

    Unfortunately this type of intracranial hemorrhaging can have considerable impact on a person’s prognosis and rehabilitation efforts. It could result in infections, intracranial pressure causing excruciating headaches and changes in vascular blood flow which can disrupt a person’s entire ability to function.

    Further, this type of injury is extraordinarily difficult to treat, especially if the hemorrhaging occurs in locations where brain function and actually survival of the patient would be at risk if there was an exploratory surgery attempting to solve the problem.

    If a client reports a head trauma with no symptoms for days or weeks after the trauma, the possibility of a “secondary brain injury” must be explored.

         vi. Injury to the lobes.

              a.  Usually frontal lobe trauma.

    As mentioned earlier, understanding brain anatomy is important to understand which part of the brain was injured in a subject accident.

    In most motor vehicle accidents and accidents involving falls in which there is a blunt trauma, the frontal lobe will be the predominantly injured section of the brain.

              b.  “Executive functioning” impairement.

    Most frontal lobe injuries result in permanent changes in “executive function” including behavioral and cognitive abilities.

              c.  People with frontal lobe injuries may appear “normal” at first but slowly decompensate.

    Many people with a frontal lobe injury will appear quite normal to the untrained observer. Frequently, they will resist treatment immediately post accident.

    However, over days or weeks, a pattern of personality change develops which frequently is more noticeable by the people around the plaintiff than the plaintiff himself or herself. Family, workmates and friends become concerned as the plaintiff becomes irritable, easily fatigued, apathetic, impulsive, makes antisocial comments, has rapid mood swings and frequently develops a loss of sex drive.

              d.  Typical cognitive symptoms that result from frontal lobe trauma.

    The plaintiff will generally begin to notice cognitive symptoms such as:

         ►    loss of planning skills.

         ►    forgetfulness.

         ►    loss of train of thought.

         ►    inability to complete simple tasks.

         ►    inability to follow simple instructions.

         ►    inability to complete a sentence.

         ►    impaired problem solving.

         ►    diminished insight.

         ►    lack of expressive language skills.

         vii.Coup and counter-coup injuries.

    Technical terms frequently used to describe two kinds of injuries to a brain are “coup” and “counter-coup.”

              a.  Difference between coup and counter-coup injuries.

    A coup injury occurs from an injury immediately under the site of impact.

    A counter-coup occurs at a location 180̊ away from the sight of impact.

    For example, if at a job site someone was slammed in the forehead with a large board, they would generally receive a coup injury.

    On the other hand, when a person falls, they usually receive a counter-coup injury.

    Whether the injury has a coup injury or counter-coup component, the plaintiff will still be suffering from a traumatic brain injury.

                   b.  How to explain coup and counter-coup injuries to jurors.

    To help jurors understand this phenomenon and relate it to the neuroanatomy which would have previously been taught by an expert during direct examination, this analogy is used:

    The brain is like a bowl of Jello and when the skull decelerates against an object, the Jello crashes into the inner skull bony protuberances which can bruise, shear or damage the soft Jello-like brain matter. In a high speed, rearend accident, the Jello-like brain matter will first violently impact the back of the skull and then when the skull rapidly decelerates, it then will whip back and impact the inner aspect of the front of the skull. Thus, the brain will have to endure a coup and a counter-coup injury as the skull whips back and forth.

    F.  The Legal Standard of Causation and its Importance in Traumatic Brain Injury Cases.

         i.  Causation may be more difficult to prove than fault.

    In most personal injury cases, establishing fault of defendants can be the most challenging part of the case and the focus of investigation and liability expert testimony.

    In traumatic brain injury cases, fault may also be difficult to prove, but just as challenging will often be trying to prove causation, i.e., that the subject trauma caused the traumatic brain injury. Just as much or more investigation and expert testimony may be involved in proving this issue than proving liability. Thus, before discussing investigation and expert testimony, this article will address the critical issue of causation.

         ii. 

“A substantial factor” causation test.

    Frequently, the most significant issue in a traumatic brain injury case will be whether or not the alleged negligent or intentional misconduct “caused” the traumatic brain injury. The legal standard is whether or not the alleged misconduct “was a substantial factor” in causing the traumatic brain injury.

         iii.Even if causation of some traumatic brain injury is clear, the defendant will contest the extent of the injury.

    In some cases, particularly cases involving accidents with a great deal of force and clear indication of a severe blow to the head, causation of some form of traumatic brain injury may be relatively easy to prove. However, even in those cases, the defense will almost always contest the plaintiff’s claim that the trauma caused the “extent” of the claimed traumatic brain injury.

         iv. The causation defenses in traumatic brain injury cases.

    In traumatic brain injury cases, the defense will almost always take one or all of the following positions:

         ►    whatever brain dysfunction exists, preexisted the subject trauma.

         ►    the subject trauma was incapable of causing plaintiff’s claimed brain dysfunction because there was not significant enough force on the brain.

         ►    the claimed brain dysfunction is really a psychological dysfunction which preexisted the accident or was caused by something other than the accident.

         ►    that the subject accident did not cause the traumatic brain injury at all; rather, plaintiff is faking the injury.

         ►    the plaintiff is suffering from some type of congenital or genetic defect which is progressive and explains the plaintiff’s traumatic brain injury symptoms and plaintiff’s deterioration.

         ►    

the plaintiff is suffering from some type of acquired illness which is causing the brain symptoms.

         ►    plaintiff’s injury is due to problems that developed as a fetus or during birth.

         ►    that the plaintiff’s brain symptoms are due to alcohol or drug abuse.

         ►    plaintiff’s brain symptoms are due to some type of toxic exposure other than the subject accident.

         ►    the plaintiff’s brain symptoms are due to old age.

              v.  Countering the causation defenses.

    To counter these causation defenses, the plaintiff’s attorney must carefully prepare the case to prove:

         ►    the traumatic brain injury diagnosis is accurate.

         ►    the subject trauma was in fact capable of causing a traumatic brain injury.

         ►    plaintiff had a normal birth.

         ►    that the pediatric records indicate that the plaintiff had a normal childhood.

         ►    that the plaintiff, during the course of life, did not suffer any trauma which could explain the brain symptoms.

         ►    that the plaintiff was highly functional in all phases of brain function before the trauma.

         ►    that the plaintiff always excelled at school and work or at least did much better than post accident.

         ►    that the plaintiff did not have any significant problems in personal or social relationships pre-accident or, if they did, they would not be problems consistent with a preexisting brain injury.

         ►    that the plaintiff did very well on achievement tests.

         ►    if per chance the plaintiff had any psychological testing or neuropsychological testing before the accident, a change can be demonstrated in post accident testing.

         ►    post accident neuropsychological testing that confirms the existence of brain dysfunction consistent with recent trauma.

         ►    the plaintiff did not suffer from any illness capable of causing brain symptoms.

         ►    neurological or radiographic testing and imagery that confirms the existence of neurologic dysfunction acute in nature.

         ►    the plaintiff did not have any preexisting symptoms of impulse control or trouble controlling emotions which would be consistent with a frontal lobe injury.

         ►    plaintiff was not exposed to any toxic substances which could have caused brain symptoms.

         ►    plaintiff never lost consciousness (other than from anesthesia) before the accident.

         ►    witnesses who either knew plaintiff before and after the accident who will testify there was no evidence of behavior consistent with brain dysfunction before, but there is after the trauma.

         ►    any other factors which would indicate that the plaintiff was not suffering from a traumatic brain injury before the accident and did not suffer from any other exposure, illness or accident which could explain the traumatic brain injury symptoms.

         vi. Plaintiff can still prove causation even if they had problems before the incident which muddies the causation waters.

    Most cases are not perfect and most people who suffer traumatic brain injuries as the result of the misconduct of another are not perfect. It is not at all uncommon for a plaintiff in a traumatic brain injury case to have had problems, illnesses, traumas, concussions and other difficulties before the subject accident.

    Preexisting problems, in and of themselves, and other potential causes for a brain injury do not in any way mean that a plaintiff will not prevail in a traumatic brain injury case. Rather, the litigation becomes a process of sorting out what problems are caused by the traumatic brain injury and what problems may have preexisted the trauma or have been caused by other factors.

    In fact, many of these preexisting factors may have made plaintiff even more vulnerable to the subject trauma and may explain why plaintiff’s outcome is worse than would have been predicted by the degree of trauma.

    Remember, the subject trauma need only be a substantial factor in causing the traumatic brain injury, not the only cause, and a skillful plaintiff’s attorney should be able to overcome most problems as long as the plaintiff was fairly functional before the trauma; that there was in fact a significant trauma; and, clear evidence of new and different symptoms of a traumatic brain injury immediately or soon after the accident.

    G.  Investigation in a Traumatic Brain Injury Case.

         i.  Investigation is critical to prove causation.

    However, in light of the importance of establishing causation in a traumatic brain injury case, an early and thorough investigation of the trauma or accident itself, the plaintiff’s academic, medical, psychological, employment, work and social history and an investigation and analysis of forces to the brain involved in the accident will be critical.

         ii. Investigation should be conducted as early as possible.

    A thorough investigation, preferably close in time to the trauma that causes the traumatic brain injury, is of the utmost importance. Since most traumatic brain injuries stem from accidents, this section will focus on traumatic brain injury investigations stemming from accident cases.

         iii.Obtaining the police report.

              a.  Reports prepared in most severe accident cases.

    In most motor vehicle accidents, severe enough to cause a traumatic brain injury, there will be a report prepared and filed by either the local police agency or the California Highway Patrol.

              b.  Police report should be obtained and reviewed as soon as it is available.

    Plaintiff attorney should obtain this report as soon it is available and review it in detail.

              c.  Police reports not admissible into evidence at trial.

    Contrary to the belief of most people, the police report itself is not admissible into evidence (except at an arbitration), and unless the investigating officer qualifies as an accident reconstruction expert, the opinions regarding who caused the accident are not admissible into evidence.

              d.  Police report useful for information contained within it that can be used as evidence and for further investigation.

    However, the photographs, measurements, observations and statements from witnesses can come into evidence at the time of trial if plaintiff can lay a proper “foundation,” i.e., basis, for the findings of the investigating officer to come into evidence.

              e.  There may be police reports even in cases of serious falls or other non-motor vehicle traumas.

    In cases in which traumatic brain injuries are caused by falls or traumas other than motor vehicles, there still may be a police report if the police are called in to investigate the accident. These reports should be obtained by the plaintiff’s attorney.

              f.  Aspects of police reports that may help plaintiff prove causation in a traumatic brain injury case.

    The aspects of a police report which may be critical for proving causation in a traumatic brain injury case include:

         ►    any testimony or physical evidence that indicates the speed of any motor vehicle involved in the accident.

         ►    any evidence that tends to indicate the speed of any motor vehicle at the time of impact.

         ►    any evidence that tends to indicate that the plaintiff hit his or her head during the impact, such as a bent A-frame, evidence of roof crush in a rollover, head rest or cracked windshield.

         ►    photographs of the vehicle or of the plaintiff immediately after the accident which indicate head trauma.

         ►    in the case of motorcycle or bicycle accidents, a scraped or fractured helmet.

         ►    any evidence noted by the police officer or witnesses of an “altered” state of consciousness such as woosiness.

         ►    any evidence that the plaintiff was unconscious for any period of time.

         ►    that the plaintiff was not able to engage in any particular movement which would relate to an injury of any particular portion of the brain.

         ►    irrational behavior on the part of plaintiff.

         ►    a plaintiff who was unable to speak after an accident.

         ►    any evidence that the plaintiff had difficulty balancing after the accident (hopefully not caused by intoxication).

         ►    any pre- or post-accident amnesia (retrograde or antegrade amnesia).

         ►    any loss of sensation, such as vision, smell or reduction in hearing.

         ►    any paralysis.

         ►    any evidence of direct trauma to the head such as bleeding, swelling and discoloration of facial skin, apparent skull fractures.

         iv. Paramedic or ambulance reports.

              a.  

Paramedic reports focus on plaintiff’s injury, not who caused the accident, so may be more valuable than police reports.

    In most significant traumatic brain injury cases, the plaintiff is, at least, examined by paramedic or ambulance personnel at the scene of the accident and usually is taken by paramedics or ambulance to a hospital. Whenever this occurs, the paramedics or ambulance workers prepare a report.

    This report can be particularly significant in a traumatic brain injury case because the observations on the report are made by trained medical personnel who are very experienced in spotting the signs and symptoms consistent with a traumatic brain injury.

    A plaintiff attorney should quickly obtain a copy of the report, which will contain much of the same information as is in the police report (which can only help the plaintiff’s case if its consistent), but while the police report will be mostly focused on fault, the paramedic or ambulance report will be focused on the plaintiff’s medical condition.

              b.  What to look for in a paramedic’s report.

    The report will generally contain a description of plaintiff’s injury, both from witnesses and observation. If the paramedics observe anything visually consistent with a head injury, they will usually report it. This can include:

         ►    unconsciousness.

         ►    altered state of consciousness.

         ►    disorientation.

         ►    lack of eye movement or irregular eye movement.

         ►    no speech or slurred speech.

         ►    balance difficulties.

         ►    concussions.

         ►    impulse control problems.

         ►    irrational behavior.

         ►    fatigue.

         ►    failure to respond to stimuli.

         ►    decreased response to stimuli.

         v.  Fire department report.

    Sometimes a fire department is called to the scene of an accident and to be thorough, the report of the fire department should also be obtained. It may contain information similar to that involved in the police report and paramedic report, but occasionally there can be some additional useful information particularly if the fire department personnel were the first emergency personnel at the scene.

         vi. Reports from other investigating bodies.

    Depending upon the type of accident or trauma involved, other state and private investigating agencies may investigate an accident and prepare a report.

    For instance in airplane accidents, the NTSB will prepare reports. In train accident, Federal and local agencies, as well as the railroad company itself, may investigate and prepare a report. In construction accidents and other workplace accidents, CAL-OSHA will perform an investigation and prepare a report.

    All of these reports may contain useful information for a traumatic brain injury case and should be obtained.

         vii.The emergency room records.

    The importance of emergency records in traumatic brain injury cases cannot be overstated. This will usually be the first time post accident that the plaintiff is seen by highly trained healthcare providers, including doctors. The observations, findings and conclusions of the emergency room personnel will be critical.

    An attorney should study these records page-by-page very carefully, alert to any signs consistent with a traumatic brain injury like impulsive behavior, acting out behavior, disorientation, failure to be aware of surroundings, memory losses (even if there is just a gap of memory surrounding the accident), hyper fatigue or hyper sleepiness or dyslexia. Also, look for evidence of a blow to the head such as bleeding, bruising, discoloration or swelling.

    Doctors and nurses will record the same type of findings and observations as the paramedics. However, these observations will carry more weight, particularly the observations of the medical doctor, because of superior training, familiarity evaluating accident victims and because by the time the plaintiff is in the emergency room, a significant amount of time has passed since the accident and continuing signs of traumatic brain injury generally indicate a more significant trauma and injury from that trauma (although, as will be explained later, the degree of trauma to the brain may have very little to do with the long lasting effects of a traumatic brain injury -- still, the case is helped if consciousness and an alteration of consciousness or other signs and symptoms of a brain injury continued into and through an emergency room examination).

    Finally, an emergency room doctor’s diagnosis of traumatic brain injury, post concussive syndrome or some similar diagnosis will be helpful for the plaintiff’s case.

         viii.    Collection of all records indicating a plaintiff’s functioning and medical and physical condition from the date of birth to the date of trauma.

    Because the determination of causation and the assessment of damages in a traumatic brain injury case is so heavily dependent upon the changes in a plaintiff before and after an accident, plaintiff attorney should obtain whatever records are available to indicate plaintiff’s functioning, psychological and medical condition from birth to the date of the accident.

    The defense will surely request all of this information once litigation begins; therefore, it is to plaintiff’s advantage to collect this data as early as possible to help prepare for the case. This will include:

         ►    obstetrical records of the plaintiff’s mother.

         ►    birth records of the plaintiff.

         ►    pediatric records of the plaintiff.

         ►    all school records of the plaintiff from preschool on.

         ►    all employment records of the plaintiff.

         ►    all medical and hospital records of the plaintiff as an adult even if they involve treatment of clearly unrelated conditions.

         ►    all psychological and counseling records of the plaintiff.

         ►    results of any aptitude tests.

         ►    x-rays and other radiographic evidence.

         ix. Collection of post-accident records.

    Plaintiff attorney should obtain at least the following post-accident records to help prove a traumatic brain injury:

         ►    all post-accident hospital records.

         ►    all post-accident treatment records with any physician, neuropsychologist, psychologist or other healthcare providers, whether apparently related to the trauma or not.

         ►    results of any neuropsychological testing performed after the accident.

         ►    results of any radiographic tests such as CAT scans, MRIs, PET scans or x-rays.

         ►    any work records if the plaintiff has gone back to work or a statement from the employer of wage loss if the plaintiff has missed or not returned to work. (It is important to get the records themselves, not just a statement from an employer.)

         ►    if self-employed, any evidence which would indicate plaintiff’s earnings before versus after the accident.

         ►    any school records if the plaintiff returned to school or attempted further education.

         ►    any vocational training or rehabilitation records.

         x.  Plaintiff’s attorney should conduct his or her own accident investigation in addition to the police investigation.

    Plaintiff’s attorney should not wait for or depend upon a police report in investigating their case. An investigator should be retained immediately to go to the scene and document whatever evidence is available and take pictures and videotapes of the scene, the vehicles involved in the accident.

    Further, the investigators should take photographs of any observable evidence of the plaintiff’s head injury and any videotapes which will document the plaintiff’s loss of function.

         xi. 

The importance of maintaining and preserving the vehicles, machine, dangerous condition of property or whatever else was involved in the accident.

    Almost all traumatic brain injury cases will involve an analysis by experts, and ultimately jurors, of the amount and type of forces on the plaintiff’s brain during the impact. To do this, the experts and jurors will have to rely upon whatever evidence is still available to analyze the degree of impact. The more evidence that is available, the better.

    Thus, every and all steps possible should be taken to preserve whatever evidence can be reasonably preserved.

    Plaintiff should never have his or her own vehicle repaired or destroyed until the litigation is ended. Plaintiff should request and insist that the defendant or the defendant’s insurance company not repair or destroy a vehicle and, if necessary, in a serious injury case, the plaintiff should buy it.

    If the traumatic brain injury is caused by a defective helmet or some other product, the plaintiff must take all steps to maintain the product in its precise post-accident condition.

    In cases in which evidence can’t be preserved, such as cases involving a dangerous condition of public or private property which, for the public safety, must be repaired, plaintiff should take extra care documenting the condition of the property at the time of the accident by photos or videotapes.

         xii.Early retention of experts as part of investigation.

    Expert witnesses will be discussed in more detail below; however, in a significant traumatic brain injury case, plaintiff’s attorney should generally retain an accident reconstruction expert and sometimes a biomechanical engineer at the very beginning of the case to observe the accident evidence while it is still “fresh” such as skidmarks, signage which may later change, dangerous conditions of property, etc.

    Further, the expert can help guide the investigation and help the plaintiff attorney prepare for the “formal” discovery which will take place once the litigation begins.

         xiii.    Statements of witnesses.

    Plaintiff’s investigator in a traumatic brain injury case should locate witnesses to the plaintiff’s condition just before and after the accident and have them sign declarations of their observations if they are favorable to the plaintiff’s case. Sometimes even a “neutral” statement can be helpful such as a witness who comes to the plaintiff’s care after an accident stating that they did not smell any alcohol on the plaintiff’s breath.

    Eventually, plaintiff’s attorney may want to obtain statements or testimony from “before and after” witnesses demonstrating the plaintiff’s long term functioning before the accident and poor functioning after the accident. Ideally, statements will be obtained from fairly non-biased observers such as clergy members, employers or doctors of the plaintiff both before and after the accident and can testify to the change. However, the statements and testimony of people who knew the plaintiff only before or only after the accident can still be valuable. Before and after witnesses can be particularly impressive to jurors who may distrust the testimony of experts

    H.  The Biomechanics of Brain Injury and Retaining a Biomechanical or Biomedical Expert.

         i.  When a biomechanical or biomedical expert should be retained.

    In any case in which a plaintiff is suffering from significant residuals from a traumatic brain injury and there is an issue as to whether the trauma:

(1) was capable of causing a traumatic brain injury or

(2) was capable of causing a brain injury significant enough to explain all of plaintiff’s post trauma dysfunction and symptoms,

the plaintiff should consider retaining a biomechanical or biomedical expert.

         ii. Essence of a biomechanical analysis.

    A biomechanical analysis of an impact, if there is enough evidence available, allows the expert to calculate the forces resulting from the collision and to prove whether or not they were sufficient to cause the traumatic brain injury.

         iii.