Closed Head Injury and Traumatic Brain Injury
A general definition of a Head Injury is defined by the University Of Maryland Medical Center as any trauma which results in injury to the skull, scalp, or brain. These injuries can vary from a minor bump on the head to serious brain damage. Within this definition of Head Injury, there are further classifications of either Open or Closed Head Injuries. A Closed Head Injury or CHI is one in which the head is impacted by an object, but does not penetrate the skull. An Open Head Injury is when an object penetrates the head, breaking open the skull and entering the brain. It is common that traumatic brain injury is used when further classifying a head injury. Traumatic Brain Injury or TBI is defined by Emedicine (http://emedicine.medscape.com/article/326510-overview) as; “An insult to the brain from an external mechanical force which may result in temporary or permanent damage to the physical, psychosocial and/or cognitive functions of the brain. Basically a victim of a head injury is classified as having a TBI after discovering some type of change or damage to his or her brain functions.”
Closed-trauma to the head is common in car accidents, such as hitting the head on the windshield, steering wheel, etc. Often times we see, from a side impact, the head hits the driver’s side window or door jamb causing injury. However; very often there can be a closed head injury from an auto accident even without direct trauma to a person’s head. This occurs from a sudden and extreme deceleration. For example; if your car is hit head-on by another car at a high rate of speed and your car comes to a dead stop, your body goes forward, the seat belt or airbag stops you, however your brain continues to go forward. Your brain is surrounded by cerebral fluid that acts as a barrier and cushion between it and your skull. So this extreme deceleration, brain goes forward pushing through this fluid and strikes the interior of your skull, which may or may not cause a bruise, and may or may not cause injury.
An attorney that is inexperienced in handling Closed Head Injuries from collisions may encounter a problem with the terminology used by doctors to describe and classify these injuries. For example; the classification of “mild,’ to lay people (juries) means slight, and not severe. The main challenge for an attorney, in communicating to an adjuster or jury, is that they must try to show that, even though a medical practitioner classified the CHI as “mild”, there still may be significant injuries and life changing problems to the motor vehicle accident victim.
Another hurdle that motor vehicle accident litigators are presented with is the fact that, very often, the victim of a motor vehicle accident that does sustain a head injury looks “normal.” Even in talking with them for a short period of time they will still appear “normal.” Therefore, it is very important to make sure that, family members and close friends who spend a great deal of time with the patient, are on the Plaintiff’s witness list. Much time needs to be spent with these people to learn the nuances and daily challenges the victim or patient goes through.
Symptoms/Problems Associated with Head Injury Victims:
• Changes in, or unequal size of pupils
• Chronic or severe headaches
• Coma
• Fluid draining from nose, mouth, or ears (may be clear or bloody)
• Fracture in the skull or face, bruising of the face, swelling at the site of the injury, or scalp wound
• Irritability (especially in children)
• Loss of consciousness, confusion, or drowsiness
• Loss of or change in sensation, hearing, vision, taste, or smell
• Low breathing rate or drop in blood pressure
• Memory loss
• Mood, personality, or behavioral changes
• Paralysis
• Restlessness, clumsiness, or lack of coordination
• Seizures
• Speech and language problems
• Slurred speech or blurred vision
• Stiff neck or vomiting
• Symptoms improve, and then suddenly get worse (change in consciousness)
(New York Times, http://health.nytimes.com/health/guides/injury/head-injury/overview.html).
U.S. Statistics for Head Injuries:
Statistically there are approximately 1.4 million people that sustain a traumatic brain injury each year in the United States. 20 percent or approximately 28,000 of these individuals have head injuries caused by a motor vehicle crash.
• 50,000 deaths a year from traumatic brain injuries
• 235,000 are hospitalized due to brain injuries
• 1.1 million are treated and released from emergency departments
Statistics from the Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Atlanta, GA (2006):
• Motor vehicle accidents account for 28% of traumatic brain injuries
• 1.4 million occur a year, and of those 280,000 are induced from a motor vehicle accident.
• 20% of all brain damage is motor vehicle related and constitutes as the second largest method (slip and fall being the first).
• Traffic brain damage accounts for the greatest number of hospitalizations.
(http://www.brainandspinalcord.org/brain-injury/motor-vehicle-accident.html).
Defense Tactics:
Defense attorneys often try to show that the damage to the subject’s vehicle in the crash was not extreme and therefore less likely to be the cause of a head injury. This is yet another challenge the plaintiff attorney, trail practitioner may face in handling this type of specialized injury or injury case. Often times an attorney will hire a biomechanical engineer as an expert to explain the forces generated in a car accident. One interesting change over the last 20 years is the materials used to build cars. Motor vehicles are being manufactured with less metal and more plastic.
The plastic and polymers that are used today to make motor vehicles is more elastic. For example; I have seen some great video tape showing a rear-end collision at a high rated speed which shows little or no visual damage to the rear of the car. However, the slow motion video shows that the bumper is actually being pushed in to such a great degree that it creates a sling-shot or rubber band effect, thus catapulting the vehicle forward. What then happens to an individual in the car is that their head, which basically floats on their neck, stays in the same position while their body goes forward. This causes an extreme whipping-like motion and thus a more traumatic and higher acceleration for the “floating brain” that is traveling forward and impacting the inner skull. Therefore, cars today, given a certain type of impact, could lead to a closed head injury without the necessity of direct impact to an internal part of the car.
Types of Doctors That Treat Closed Head Injuries:
• Neuropsychologist- clinical neuropsychology is a specialty profession that focuses on brain functioning. A clinical neuropsychologist is a licensed psychologist with expertise in how behavior and skills are related to brain structures and systems. In clinical neuropsychology, brain function is evaluated by objectively testing memory and thinking skills.
(http://www.neure.com/Index.cfm?file=neuropsychologistdef.htm).
• Rehabilitation Counselor- a human services professional who assists persons with disabilities to become or remain productive and self sufficient. The counselor may help clients deal with personal, environmental, and societal problems; arrange for medical and psychological services; and arrange vocational assessment, training, and job placement.
• Neurologist-a physician who specializes in the nervous system and its disorders.
• Physiatrist/PM&R physician- a physician who specializes in physical medicine. A health care professional who administers physical therapy; a physical therapist. PM&R stands for Physical Medicine & Rehabilitation.
• Vocational Consultants- an expert in the areas of vocational rehabilitation, vocational and earning capacity, lost earnings, cost of replacement labor and lost ability/time in performing household services. They perform evaluations for purposes of civil litigation, as an aspect of economic damages. Vocational experts identify what the person could have earned prior to the incident, compared to what they are likely to earn following the incident. Economic experts calculate the value of those earnings over time, so the difference, if any, between the two income streams is clearly understood. Those who act as vocational/economic experts blend the two disciplines, and offer testimony in both areas.
• Life Care Planner- a Nurse Life Care Planner (or Case Manager) utilizes the nursing process in the collection and analysis of comprehensive client specific data in the preparation of a dynamic document. This document provides an organized, concise plan of estimated reasonable and necessary,(and reasonably certain to be necessary), current and future healthcare needs with the associated costs and frequencies of goods and services. The nurse life care plan is developed for individuals who have experienced an injury or have chronic healthcare issues.
• Neuroradiologist- a person specializing in the branch of radiology that deals with the nervous system. They use of x-rays to review films in the diagnosis and treatment of nervous system disorders.
(Definitions provided by Medical Dictionary,http://medical-dictionary.thefreedictionary.com/rehabilitation+counselor).
Treatments for Closed Head Injuries:
All treatment depends on the severity of the closed head injury but the following are commonly used techniques.
• If a mild head injury, a doctor will prescribe rest and over-the-counter pain relievers.
• In more serious cases, doctors want to prevent further brain damage by easing intracranial pressure. This is achieved with diuretics, anti-seizure medications and coma-inducing medications.
• Patients with intracranial hematoma typically need surgery to drain the blood deposits.
• Surgeons may find it necessary to elevate pressure from brain swelling by opening a “window in the skull.”
• Following surgery and/or medication most patients with severe closed head injuries will need therapy to regain their basic motor and cognitive skills.
(Provided by All About Traumatic Brain Injury, http://www.allabouttbi.com/treatment/).
Medical Testing for Closed Head Injuries:
Below are some of the tests that may document a closed head injury.
• CT Scans which are defined as “pictures of structures within the body created by a computer that takes the data from multiple X-ray images and turns them in pictures on a screen. The CAT (computerized axial tomography) scan can reveal some soft-tissue and other structures that cannot even be seen in conventional X-rays,” (Med Terms, http://www.medterms.com/script/main/art.asp?articlekey=2647). CT Scans are generally used to check for blood or intracranial hemorrhaging which may require surgery. Often, if the test is negative, the patient will be referred for an MRI.
• An MRI, which stands for magnetic resonance imaging, is “the use of nuclear magnetic resonance to produce images of the molecules that make up a substance, especially the soft tissues of the human body. Magnetic resonance imaging is used in medicine to diagnose disorders of body structures that do not show up well on x-rays” (http://www.thefreedictionary.com/MRI). An MRI has a higher resolution and better imaging than a CT Scan but, of course, is more expensive.
(Just because a CT or MRI is negative to detect brain injury does not mean there is not a closed head injury.)
• PET and SPECT scans are types of functional brain imaging. A PET scan, which stands for Position Emission Tomography (it looks at glucose metabolism), is used to show how the cells use glucose, as an indication of brain injury or a marker for brain injury. SPECT scan, which stands for Single Photon Emission Computed Tomography, is used to show the function of organs, i.e. blood flow and brain activity.
Neuropsychological testing often involves many written questions. The test is given over a two day period of time measures intelligence, cognitive functioning and achievement, among other things. Test givers say it checks to see if the patient is giving their best efforts. Many of the same questions are asked different ways throughout the testing to check for this sort of thing, and then are interpreted by a professional, usually a neuropsychologist. We often run into the case that the defense or insurance company’s neuropsychologist is interpreting this information differently than the plaintiff.
Malingering in Closed Head Injuries & Cases- an individual who meets two out of following four criteria:
1. They are involved in a law suit.
2. Their claimed level of disability is different than one would expect based on objective findings.
3. The plaintiff wasn’t cooperative during the exam; and/or
4. The plaintiff has anti social personality disorder.
Malingering is defined by the American Psychiatric Association as “the intentional productions of false or grossly exaggerated physical or psychological symptoms motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution or obtaining drugs.”
Often times the defense attorney, insurance adjuster or medical experts will try to paint a picture and sell to the jury that the patient is malingering. They are basically saying that the plaintiff (the person suffering from the motor vehicle accident injury) is faking their symptoms and doesn’t have a head injury at all or that they are making more out of the head injury than is actually there. They accuse the client of being a fraud, lying, or even of refusing medical care.
From a trial lawyer’s point of view, a lawyer should object to this line of questioning or opinion from the defense expert. They should not allow the defense expert o claim that the plaintiff is lying if the jurisdiction where the case/lawsuit is filed does not allow for a witness to comment on the credibility of another. Basically, malingering tests are nothing more than a doctor calling the plaintiff a liar, but attempting to back it with some “science.”
Tests to Prove or Disprove Malingering in Closed Head Injury Victims:
• Modified Somatic Pain Questionnaire, this questionnaire has 13 questions which refer ask the patient what type of pain they are in. Often times if the patient embraces and states that he or she is in pain and that it is severe they are labeled a malingerer. If they do not state that there is pain, the doctor will conclude there is nothing wrong with him or her.
• Portland Digit Recognition Test; this is a supposed malingering test that has received wide criticism.
• Rey’s 15 Item Test is one in which victims of head injury complaining of memory loss are tested for malingering. The examinees are instructed that they are to remember 15 different items and recall them in order. Each item is presented to the examinee for 10 seconds, and then after the last item is shown there is a 10 second delay before being asked to recall the items. The examinee should be able to recall 9 out of the 15 items, a score below that is considered to indicate malingering. This test has been criticized because in some of the research there were only 15% of people that were instructed to initially fake the results (malinger) but the testers diagnosed 27% as malingerers. Victims of a closed head injury who have focal memory damage do poorly on this test as well as those with further cognitive damage, so potentially scoring badly on this test could actually indicate brain injury rather than malingering. Other studies have shown that those with serious psychiatric disorders have scored poorly as well.
• A popular physical malingering test is the Waddell’s Sign. Medical doctors will often times claim that a positive Waddell’s Sign is evidence of malingering but most experts will tell you this is NOT true. Waddell’s Sign consist of doctors performing physical maneuverings to parts of the body. For example; a doctor may push on the top of the patient’s head and ask if it causes low back pain. From a physical stand point, this cannot actually cause low back pain. Therefore if the patient claims it does, the doctor can conclude this as evidence of malingering. Experts state that this is an incorrect use of Waddell’s Sign. It was originally created to determine whether the patient needed a psychiatric referral and not to determine whether the patient was malingering. Therefore most legitimate practitioners would conclude that Waddell’s Sign is a poor predictor of malingering.
• MMPI2 “Fake Bad Scale” is another type of test. There are many who will say that the MMPI2 Fake Bad Scale is not reliable. Some claim securities have filed motions to keep it from being used in court.
• The Legal Frye Test questions whether the scientific theory or discovery from which an expert derives an opinion is reliable. The Frye test looks to reject expert testimony concerning subjects that have not been proven to sufficient reliability. For example; the scientific method has to be accepted widely within the scientific community to be used in court. Science that has been an issue in courts which will make this point clear include the following: hypnosis used to refresh a person’s testimony or memory has been held inadmissible. Information to show the liability of scent discrimination line-ups, a testimony of a dog handler was insufficient to establish the reliability of dog scent discrimination line-ups. Polygraph evidence is inadmissible to prove truthfulness. Finally, the results of interviews during the use of sodium pentathol (a barbiturates with hypnotic & sedative properties) in a court room prosecution case. The Legal Frye test is named for the case Frye vs. the United States which involved the admissibility of early polygraph tests. The court held evidence inadmissible because the early underlying scientific principles had not been sufficiently established to have gained the general acceptance in the particular field in which it belonged.
The Legal Frye analysis can and has been used in the past to block the MMPI-2 “Fake Bad Scale” and its use in open court when a defense attorney or expert tries to prove that the plaintiff is faking, lying or malingering, exaggerating etc. This writing is reviewed in order from Judge Bargmann of the Circuit Court the County of Hillsborough, State of Florida where the judge ordered that the defense expert be prohibited from testifying if they were using the “Fake Bad Scale” as an objective means to measure effort, malinger, or over reporting of symptoms were to bolster his opinion that the plaintiff is not creditable or not truthful or malingering. One reason the judge did this was that the preponderance of the evidence did not support the defense contention that the FBS is accepted in the psychological community. Further stated, the court did not believe that a test or scale can reliably determine the existence of malingering or accurately measure the magnitude of a much probative value.
Other tests include:
• Word Memory Test
• Dot Counting
• Forced Choice Component
• Verbal Learning Test
• Wisconsin Card Sorting Test
• Million Clinical Inventory
• Personality Assessment Inventory
Some other things to consider with brain injury victims are that a patient that has a brain injury from a motor vehicle accident or otherwise can be easily distracted or have trouble focusing. Further, increased pain can interfere with concentration. Doctors have often testified that this does not apply to malingering tests, however; if the test taker is in a severe amount of pain or a moderate about of pain it can affect the ability to take a test accurately or with the same outcome as if the patient were not in pain. These two situations (easily distracted and pain) can result in a false reading on a malingering test.
Some professionals point out that malingering tests cause the doctor administrating the test to lie to the patient. For example; when the doctor administers a word Memory Test they tell the patient they are going to give them a memory test and then going to ask them to remember certain things. With a malingering test they do not tell them that they will test their memorization. Some experts point out that this can lead to different results.
As many may know, the defense is often allowed to send the plaintiff to a doctor of their choosing to be examined so that the defense attorney can put forward a case and, stating the obvious, defend the lawsuit. Often the doctor is chosen for their slant and reputation of being defense oriented, or even worse. During testing with a closed head injury the doctor, and there have been reported cases, will sometimes not even give a legitimate malingering test if they believe the client will pass it. This would be a piece of evidence that the defense attorney could play out in court. If they do administer the test, often times the report that shows that the plaintiff is not malingering and did put forth their best efforts will be initially left out by the defense expert.
The anatomy of the brain and frontal lobe, function:
The pre-frontal region of the brain lends itself to problem solving, behavioral planning & initiation, eye movement and working memory.
Orbital cortex portion of the brain has to do with personality, patterns of behavior, response inhabitation and relationships.
In the event of Frontal Deficit:
1) Reduction in memory
2) Reduction in “associative power”
-Lack of coordination in individual steps leading to a given goal
-Severe difficulty in solving complex problems
3) Loss of “perceptive power”
-Defective attention and object recognition
4) Disruption in focal consciousness and purposive behavior such as apathy.
5) All emotional attachments changes in social-ness, grooming, toileting and feeding.
In the event of a Frontal Lobe Injury, symptoms that may occur are:
1) Impairment of recall memory while recognition is reserved
2) Language and general knowledge unaffected
3) Inhibition sometimes is lost such as impulse control.
From reading the above information about Closed Head Injury you may have determined that CHI and TBI are special and intricate conditions that not all personal injury lawyers are well versed in. Any attorney representing a client in a motor vehicle accident who has a brain injury should make sure they become educated in this area of medicine.
