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Traumatic Brain Injury Articles
Charting Recovery, Remembering the Past
By David P. Hersh, Esq.
As I attended the Brain Injury Association of Colorado [BIAC] annual conference at the end of September in Vail, I was reminded yet again of the incredible challenges that face the victims of Traumatic Brain Injury [TBI]. I was reminded yet again that it is difficult for those of us who have not suffered a TBI to have any real appreciation for how TBI affects the patients and the ones who love and care for them. I was reminded yet again that for the vast bulk of our population TBI and its effects are only vaguely known, rarely encountered, and little appreciated.
The general population is relatively unaware of the profound impact TBI makes on its victims. However, when the victim of TBI goes to court, it is critical that the advocate, the family, the victim, and their health-care providers be able to effectively communicate the wide-ranging and pervasive effects of TBI. It is important that Plaintiffs be able to effectively convey the difficulty they have encountered in gaining the recovery they experience prior to entering the Courtroom, and it is essential that they be able to educate the jurors about what it means to suffer from TBI and communicate the daily effects, from the readily apparent to the subtle, of this condition. When a jury is called upon to make an award of damages that will compensate the TBI victim, it is being asked to make a judgment about compensating a condition that no one on that jury, nor anyone in their immediate family, has ever experienced. Unlike a broken bone or a sore back or even a since of fright, TBI is not within the common experience of jurors, and so they have very little "collective experience" to draw on in evaluating the proper compensation for TBI.
Of course, no amount of money will ever "set it right" for the victim of TBI. And no one would trade a normally functioning brain for one that is suffering the effects of even a mild TBI for any amount of money. But compensation is what a jury is called upon to award in tort claims arising from legal liability TBI, and it is the duty of the Plaintiff and the Plaintiff's "team" to give the jury context for their award evaluation. This is all complicated by the fact that in a legal liability TBI lawsuit, the Plaintiff only has one chance to recover against the liable party(s), and if the jury award is insufficient the Plaintiff will never have the chance to go back and ask for more money. One shot - six strangers with no prior experience or knowledge of TBI - and a condition that it is challenging to depict. So what do you do?
In this article, I want to focus on what the victim of TBI should be prepared to do and what your friends and family should be prepared to do. What you do and say at trial will be augmented by experts of all sorts, and it will be directed by your lawyer. How they do their job is beyond our reach in this article. But for you - someone who has a TBI or loves someone who does - these are a few pointers.
Historical Effects on the Patient
By the time your lawsuit reaches Court, you are likely to be at least two if not more years into the recovery process. Depending on the nature and severity of your TBI, as well as your genetic make-up, the skill of your physicians, and good old luck, you may have made more or less progress in regaining function and developing coping skills.
It is important for the jury to gain an appreciation for your situation. It is important for them to have the information to place your current condition [and your future prognosis] into context. They need to know where you have been, what you have been through, and what it has been like.
It may be difficult or impossible for the victim of the TBI to tell this part of the story to the jury. But if you are the victim of TBI, it is important for you to be willing to tell this part of your story if you can. While it may not be pleasant to remember those by-gone days, I urge you to consider being willing to share those dark days and your memories of those dark days with the jury.
Family, friends, and caregivers should be prepared to provide information to the jury about the historical "journey" of the brain-injured individual. It is important for those in that support group to remember specific days and events that will illustrate to the jury just what the victim has gone through. Specific examples of changes, challenges, and limitations are invaluable. In order to do this, you may want to consider making a journal of events to remind yourself of what the daily recovery was like. You may wish to consider reviewing medical and nursing/rehabilitation records to be reminded of the challenges that were faced [and overcome] months and even years ago.
Jury trials are stories, and stories are about people. It is important that both victims and their team be ready and able to effectively tell the story of how the victim has progressed from the date of injury to the "present". I find that it is often fairly easy for friends and family to describe "how he was" before the accident, but a real challenge for them to recall and relate specifics on how the recovery has progressed, the challenges that were faced along the way [so far], and what it is that were the biggest frustrations and limitations that the victim has overcome. Details make for a credible and effective story, and details provide the jury with points of reference that they can relate to, even though they have never had a TBI.
Current and Prospective Effects on the Patient
The current condition of the victim of TBI is important for the jury to understand. Viewing and listening to the victim of TBI only provides a part of the story. It is common for jurors to look at a TBI victim and listen to them testify and fail utterly to comprehend how pervasive and persistent the effects of the TBI are in the lives of the Plaintiff and loved ones.
You should consider preparing and presenting a "day in the life" video of the TBI patient. This video should be shot by a professional videographer, and it should provide the jurors with as many "connection" activities as possible - giving the jurors the opportunity not only to hear about difficulty the TBI patient has in activities of daily living [ADL's], but actually witnessing it first-hand.
Developing coping skills is very important to a TBI patient. In a courtroom, it is important that the jury be made aware of the use of those coping skills and how those coping skills, while helpful, are not the same as the native abilities that the TBI victim has lost due to the injury. You should consider making a list that you can explain or your care group can explain of the daily coping efforts you utilize in dealing with the limitations inherent in your TBI.
Frustration is a common human experience, and it is an unavoidable part of recovering from a TBI. Taking the time to consider the most effective way to express the daily and pervasive ways in which frustration enters the lives of TBI victims and their loved ones is a critical component of any trial.
Conclusion
In trying a legal case involving TBI, it is important for the jury to gain an understanding of what the patient has gone through and is going through. This is not a ploy for sympathy, but a quest for understanding. If a jury is going to fairly compensate a TBI victim for the wrongs done to them, that jury must be brought to an understanding of how the patient has been affected. Telling that story is a critical part of any legal recovery for a TBI victim.
Since his admission to practice before the Colorado Supreme Court in May of 1984, Mr. Hersh has focused his practice on civil litigation. Mr. Hersh practices trial law, with an emphasis on cases involving complex issues of liability and damages. Mr. Hersh has served as lead counsel in both State and Federal Courts in a number of catastrophic personal injury cases, including cases involving claims for paraplegia/quadriplegia, brain injury, severe burns and disfigurement, and limb loss. Mr. Hersh has been awarded an AV rating by Martindale Hubble [the highest rating] for practicing at the highest levels of professionalism and ethical behavior. Mr. Hersh is an active member of the American Association for Justice and the Colorado Trial Lawyers Association, and has been recognized by his peers as a "Colorado Super Lawyer". Additionally, Mr. Hersh is a member of the Craig Hospital PUSH fundraising committee.
