Mild to Moderate Brain Injuries
A Silent Epidemic
by: E. Marcus Davis
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The clinical neuropsychologist, who specializes in the evaluation and treatment of brain damage, is a far better choice for diagnosing a person’s problems after minor head injury. In the area of mild to moderate brain damage, any well-trained neuropsychologist can usually out perform several million dollars’ worth of medical equipment. The trial lawyer can be of invaluable service to clients with complaints consistent with brain injury by referring them to a competent neuropsychologist for a diagnostic workup.
In addition to seeking word-of-mouth recommendations, a lawyer searching for a skilled neuropsychologist should make inquiries of the National Head Injury Foundation (NHIF) and local affiliates like the Georgia Association of the NHIF. These nonprofit organizations maintain lists of professional-neuropsychologists, psychiatrists, neurologists, and attorneys-with expertise in diagnosing, treating, rehabilitating, and representing head-injured persons.
A neuropsychologist's examination involves an extended set of interviews and tests, requiring from 6 to I2 hours. The process includes both traditional psychological measures and more refined tests that map specific cognitive functions under varying conditions.
A typical test battery (for example, the Halstead-Reitan Test Battery) includes the Wechsler Adult Intelligence Scale Revised (WAIS-R). The Halstead-Reitan Test Battery is particularly useful to the trial lawyer because it tests many different mental and physical functions and, accordingly, the different sectors of the brain that control those functions. It therefore generates information about specific parts that are not functioning properly.
Also, some Wechsler subtests, and thus the areas of brain function they test, seem to be insensitive in mild to moderate brain injury. Thus an estimate can also be made as to the client’s pre-injury IQ, even though the overall post-injury IQ score will be lower.
Among the tests of the brain's executive functions are the Complex Figure Test, the Wisconsin Card Sorting Test, and the Category Test. Language skills are measured by the Controlled Oral Word Association Test and the Boston Naming Test. Verbal memory is evaluated using the Auditory Verbal Learning Test (known as AVLT) or the California Auditory Verbal Learning Test.
Attention is tested with the Wechsler Memory Scale, the Trail Making Test, and the Stroop Test. The Complex Figure Test assesses organizational efficiency, visuo-motor memory, and the retention of motor information over time. Visuo-motor function can be evaluated with the Bender-Gestlat test. Tests to determine emotional status include the Minnesota Multiphasic Personality Inventory Test (MMPI), the Thematic Apperception Test, and the Rorschach Test.
Other tests not always employed in neuropsychological evaluations may also prove useful. The Brain Electrical Activity Mapping (BEAM) test, a computerized EEG, compares a head-injured person's responses to visual and auditory stimuli with those of a normal person. The BEAM test is particularly useful in the courtroom because it provides an excellent visual aid for demonstrating brain injury.
Positive Emission Tomography (PET) scans can detect regions of dysfunction that are manifested by deceased glucose metabolism.
Evoked potential testing can determine if there is widespread damage to the brain on a microscopic level. Electrodes are placed at the wrist's medial nerve and the posterior tibial nerve of the ankle. The test measures the degree and speed of the brain's response when the upper and lower extremities are electrically stimulated.
For test findings to be useful as evidence in court, the results must provide more than just an assessment of the client’s current level of functioning. They should also address the client’s premorbid functional level, as demonstrated by school records, Scholastic Aptitude Test scores, occupational level, and the quality and stability of relationships.
The neuropsychological report should delineate to what degree current deficiencies represent loss or deterioration since the injury. The report should also offer an opinion on the degree of loss of the client's educational, occupational, and interpersonal potential.
The emotional response of the brain-injured person to the injury is an important element of damages. Often he or she feels a loss of the sense of self and becomes profoundly depressed. The pain and suffering the client experiences due to this emotional trauma is an important part of this type of personal injury claim. Changes in intellectual and body images are often accompanied by loss of self-esteem. Confidence in the ability to negotiate life smoothly and efficiently may be lost. The head-injury survivor is entitled to compensation for these losses as part of the pain and suffering claim.
The spouse’s loss of consortium is an-other important area of damages. The brain-injured person may be so changed at times that he or she becomes, for all practical purposes, a different person- someone who behaves differently, thinks differently, exhibits a different sex drive, and has different interests from the pre-injury person. Usually the marriage is severely affected and the couple may well divorce.
The spouse may have lost the person he or she married as truly as if by death. Yet because the person still looks the same, society neither recognizes the spouse’s grief nor provides the support and comfort that those bereaved by death are given. The spouse cannot divorce in good conscience or mourn with dignity. The spouse is entitled to have this tragedy recognized and to be compensated for the loss.
Sleep disturbance is another area of damages that should he explored. Sleep patterns may be significantly altered by brief but frequent seizure activity. These seizures may not be perceptible to the patient, since they occur during sleep, but they can seriously disrupt normal rest. As a result, the injured person feels exhausted all the time. For some, an anti-seizure medication such as Tegretal will prove therapeutic. For others, the source of fatigue is an injury to the brain stem, and it cannot be relieved by this type of medication.
Usually the most significant area of special damages is the cost of treatment and rehabilitation. Most of the expense for treatment for brain injury is incurred in the first post-injury year, which is also when most recovery occurs. Expensive in-patient treatment at a residential facility may be required. Deficits remaining after that point may include marked and persistent defects in cognitive functioning. Costly cognitive retraining, which could last for years, may be necessary next.
Although definitive research on the point is not yet available, it appears that cognitive defects have a permanent deleterious effect on the patient’s everyday life. The most consistent residual clinical problems faced by the head-injury survivor are disordered verbal and nonverbal learning and faulty memory. Depression is also common.
Learning to Cope
The injured person can learn to compensate for many, but not all, deficits rooted in permanent damage to brain tissue. Long-term recovery is based on the body’s ability to use the remaining undamaged brain tissue-tissue not fully used before the injury.
Cognitive rehabilitation is designed to train this unused brain tissue to take over for the damaged areas. It also teaches the patient new methods of coping-for example, taking frequent notes in everyday life to compensate for memory loss.
The client must receive rehabilitation that addresses cognitive deficits, emotional damage, and resulting behavioral problems. The objective of this treatment is the permanent resolution of the person's emotional distress as well as his or her reintegration into the community. According to one prominent neuropsychologist, omitting any of these components in treatment can lead to the ultimate failure of treatment as a whole. Including all three can lead to a “whole person treatment approach to which patients with minor brain injury respond favorably."
Cognitive remediation, as this type of therapy is called combines cognitive psychology, neurology, remedial education, and psychotherapy. The therapist attempts to restore thinking and problem-solving skills and to reteach social skills.
Both acute and long-term rehabilitation can be provided on an extended inpatient basis or on an outpatient basis. Remediation usually includes therapy sessions in the neuropsychologist's office and homework performed by the patient on a computer terminal.
Trial lawyers who become familiar with this type of injury will find many cases of mild to moderate brain injuries in their own practices that were previously unrecognized. These lawyers will be sought out by other practitioners who have taken such cases but lack the expertise to handle them. Certainly, this field is worth mastering for the benefit of the victims of this silent epidemic.