Before a plaintiff in a personal injury case can recover compensation, he or she must prove that the injury exists, and that it was caused by the defendant’s wrongful actions. The existence and scope of many kinds of injury can be proven in straightforward ways: a broken bone can be proven with an x-ray, a burn can be proven with photos of scars, and so on. Brain injuries can be more difficult to prove, because they aren’t always visible and the technology that can reveal changes to a brain’s structure is not readily understood by people outside the medical industry.
Physical proof of brain injury
Some forms of traumatic brain injury can be revealed in much the same way as a broken arm. Advances in medical imaging technologies allow astonishing detail to be reduced to photographs that can be admitted as evidence at trial. There are a number of tools available to capture images of the brain’s structure. These include computed tomography (CT) scans, magnetic resonance imaging (MRI), diffusion tensor imaging (DTI), and positron emission tomography (PET) scans. Each of these technologies reveal different things, ranging from an MRI’s three-dimensional picture to a DTI’s microscopic analysis.
There are challenges associated with using evidence from these scans. The first is that they need to be available at all. In some cases the injured plaintiff doesn’t have access to these technologies, or the access was not timely enough. A second problem is that an untrained person often can’t tell when an image shows damage to a brain. Therefore expert witnesses are often required to help the court interpret the output of the scans. Whenever expert witnesses are involved there’s always a possibility that the defense will bring their own experts to contest the testimony of the plaintiff’s experts. Issues like these can be overcome by experienced personal injury attorneys, but they can complicate a case.
Proving brain injury when physical proof isn’t definitive
Modern scanning technology doesn’t always provide a definitive answer to what is happening in the brain. In many cases the output of a given scan may be interpreted in multiple ways, leaving significant doubt about the existence of the injury. Despite the apparent lack of “photographic” evidence, the person suffering from such injuries knows that something is wrong.
A common approach in such cases is to present evidence of how the plaintiff’s life has changed as a consequence of the injury. Doing this requires building a narrative of change by developing a picture of how the plaintiff behaved before the injury and how that behavior has changed. The plaintiff’s friends, family, and coworkers may be good references. In the age of cell phone video, a plaintiff may have a lot of video to show, for example, that a particular speech impediment was not present before the accident. The plaintiff’s health care providers are often crucially important witnesses in such cases.
Talk to an experienced personal injury law firm about your case
The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases for over 45 years. We are committed to providing each client with personal attention and care. If you have suffered a brain injury and need help sorting through your legal options, please contact us today for a free attorney consultation. We can be reached at 702-388-4476 or through our contacts page.
One could argue that there’s no such thing as a “minor” brain injury. Brain trauma has lasting consequences, ranging from chronic headaches to problems with memory, speech, and motor function. In many cases a brain injury shortens life. Medical treatment for such injuries is often a long, difficult road. In the context of a personal injury lawsuit, brain injury poses unique challenges.
Types of brain injury
The complexity of brain injury lawsuits is partly due to the wide range of potential causes and effects of such injuries. Some injuries are caused by blows to the head: a driver’s head strikes the wheel during a collision, a shopper slips on a store’s wet floor, someone strikes another person with an object. Other injuries come from less obvious sources. Exposure to some toxic chemicals can cause brain injuries. An injury to another part of the body can release blood clots that can find their way to the brain and cause strokes.
The medical field recognizes a wide range of specific brain injuries. These include:
- Hematoma: clotting or concentration of blood outside the blood vessels, potentially causing unsafe pressure and damage to cells.
- Hemorrhage: bleeding between the skull and brain (so-called subarachnoid hemorrhage) or within the brain itself (intracerebral hemorrhage), which like a hematoma can cause pressure damage, as well as dizziness, headache, and other problems.
- Concussion: an injury caused by a blow to the head or a sudden stop, which often has short-term consequences like headaches and blurred vision, but can have longer-term effects especially if the victim has suffered concussions before.
The evidence problem
No two brain injuries are alike. Quite often an injury’s full significance can only be understood after some time has passed. Doctors use a range of methods to evaluate brain injuries, from external examinations to CT and MRI scans. Modern imaging equipment can reveal incredible details about the interior of the brain, allowing doctors to pinpoint trouble spots and make accurate diagnoses of issues like clotting and bleeding.
Some brain injury patients suffer neurological issues that are not going to show up in an imaging scan. Problems with speech, memory loss, or sleep disruption are examples of challenges that can’t be illustrated to a jury in a picture. A defendant in any personal injury case has a significant incentive to limit the scope of liability and will take exception to any symptom that the plaintiff can’t prove is related to the original injury. It’s very important that the injured plaintiff have the help of experienced attorneys who can organize evidence, coordinate witnesses, and anticipate the defense’s counterarguments before they arise.
GGRM is a Las Vegas personal injury law firm
For more than 45 years the law firm of Greenman Goldberg Raby Martinez has provided personalized, caring advice to clients in the Las Vegas area. If you or a loved one is suffering from a brain injury and you would like to discuss your legal options, reach out to us today for a free attorney consultation. Call us at 702-388-4476 or contact us through our website.
Chronic traumatic encephalopathy, or CTE, has become a focus issue for sports in general, and especially for contact sports like football and boxing. CTE is connected to repetitive brain trauma from blows to the head. It is a progressive degenerative disease, leading to serious symptoms like memory loss, depression, and dementia. CTE is usually only diagnosed after the ill person dies. For someone who is dealing with problems that are potentially related to sports-induced head trauma, pursuing a lawsuit may be an option.
Potential legal theories for CTE litigation
Litigation for sports-related head injuries can follow several different strategies. The best strategy for a given situation can only be determined by an attorney who has carefully examined the available evidence. But generally speaking, these are the most likely theories upon which a case would rest:
- Personal injury. A sports league, whether at the professional or amateur level, owes its participants a duty to ensure that the activity is reasonably safe. Failing to do so could expose the league to a personal injury claim based in negligence. For example, a peewee football club that doesn’t take adequate care to ensure that its players’ helmets fit properly could be responsible for the consequences of resulting concussions. A league can also be responsible for not taking reasonable steps to respond to head injuries when they do occur. Personal injury suits may also be appropriate against individuals who have behaved negligently.
- Products liability. If helmets or other safety equipment do not perform as intended, a plaintiff might have a products liability claim against the manufacturer or seller. Among other things, a products liability claim in Nevada must show that the product had a defect that made it unreasonably dangerous. Nev. J.I. 7.02. This standard may be challenging to overcome absent compelling facts. For example, helmet manufacturer Riddell is facing litigation for alleged misrepresentations in its advertising.
- Wrongful death. Because CTE is often only recognized after the sufferer dies, the individual’s heirs or representatives may wish to bring a wrongful death suit against a league or individuals that they believe negligently caused the death of their loved one.
Challenges for CTE lawsuits
A lawsuit arising out of CTE will probably face a number of significant challenges. These are just a few examples:
- Proving causation. For many CTE litigants a major difficulty will be proving that the specific defendant in a case was responsible for the underlying cause of the condition. Because CTE develops over time, it may have many sources. For example, a football player who began his career as a child might have difficulty establishing whether his injuries arose at the peewee level or in middle school, high school, or college.
- Passage of time. Because CTE is a progressive disease, many years may divide the triggering injuries and diagnosis. The passage of time can render evidence unavailable and erode memories. In this regard, it doesn’t help that CTE affects memory.
- Assumption of risk. Because CTE tends to be linked most strongly to contact sports like football, boxing, or hockey, defendants may focus on the injured player’s assumption of risk as a participant. This will probably become more prevalent as awareness grows about CTE and other head injuries. Although someone injured in the era before CTE was widely known might not have known about it, and therefore might not have been able to willingly assume the risk, the situation is arguably different today.
- Liability waivers. Participants in amateur sports typically are asked to sign liability waivers that limit the legal responsibility of organizers and others. It’s always important to read such waivers carefully before signing them.
Consult with experienced personal injury lawyers
CTE can be a particularly devastating injury for people suffering from it and for the loved ones who care for them. Especially when CTE leads to unmanageable medical costs, litigation may offer a path to financial relief. The personal injury attorneys at GGRM have served the Las Vegas community for over 45 years. For a free attorney consultation call us today at 702-388-4476, or send us a request on our contact page.