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Overcoming Common Defenses In Traumatic Brain Injury Cases (Part III)

The Lawyer's Role in Coordinating Caregivers

Most of the time, trial lawyers would prefer to take a "hands-off" approach to selecting caregivers. If a patient is referred to a treating clinician by the lawyer, then the clinician becomes exposed to obvious attacks on his or her credibility. Because treating clinicians are often important witnesses, this is a situation best avoided when possible.

But it is not always possible for lawyers to take an entirely hands off approach. Some medical providers can have blind spots for subtle but devastating injuries. It has been said of neurosurgeons, for example, that "if they can't operate on it or take it out, it's not a problem." This is of course more of a quip than a categorical statement true in every instance, but like every enduring quip it endures because it has an element of truth to it. Similarly, neurologists can fail to recognize all the consequences of traumatic brain injury. Some cognitive and neuropsychological injuries are simply not picked up on standard neurological examinations. This means that the lawyer and the client sometimes need to become more actively involved, in making sure a proper neuropsychological evaluation is performed.

Ideally the patient's doctors will select the neuropsychologist and make a referral. In my experience, however, that task often falls to the patient and the lawyer. It is important that the neuropsychologist be appropriately licensed and credentialed. Licensure as a psychologist is of course a minimum qualification, ideally in the state where the patient lives. Any neuropsychologist testifying in a traumatic brain injury case should also be a diplomate of the American Board of Professional Neuropsychology - that credential is solid proof of the expert's experience and training.

If the neuropsychologist has additional training and credentialing as a vocational expert, that can also be helpful and can certainly streamline the presentation of your case at trial. A diploma from the American Board of Vocational Experts is a universally recognized and respected credential in that area.

Some lawyers prefer to work from a stable of experts who typically work with one side or another (plaintiff or defense). That is often an easier way to go - it is always easier to work with someone who has experience working with you and your colleagues - but it is not always the best way. In the appropriate case, using an expert who more frequently works with the other side can provide compelling, almost irrefutable proof that your client's injuries are what you say they are.

If the neuropsychologist's report suggests or recommends further interventions or supports that may be helpful (for example, requesting accommodations at work or school), you must make sure the client is aware of them, and you must make sure the client follows up on them. That is the only way to absolutely protect your role as truthteller in the courtroom. If the expert suggests that your client consider something and the client doesn't do it, then the expert's report can be attacked as just a litigation document. The jury will spot this in a heartbeat, and your job will be a whole lot harder. This is also, by the way, simply the right thing to do as a client's lawyer, if you are really in the business of helping people put their lives back together (and every good plaintiffs' lawyer is in that business). Sometimes this takes a lot more than a single phone call. You need to become a little bit of a social worker in these cases (and sometimes an education lawyer, employment lawyer, and benefits consultant).

This does not mean that your client has to do everything suggested in the neuropsychologist's report. It simply means that the client must seriously consider and engage with each suggestion and recommendation. I have one client, for example, who resisted asking for accommodations in school in order to deal with the consequences of his brain injury, even though they were suggested in a neuropsychologist's report and the client was legally entitled to them. The client was able to perform well enough without accommodations, through a series of workarounds that he and his family came up with. I look forward to explaining that to the jury at trial. The point here is that there is a reason the client chose to not follow up on the recommendations in a neuropsychological evaluation - the client's own brilliant mix of pride, grit, and youthful optimism, which are reasons I will be happy to share with the jury. The recommendations were not just ignored.

In the future, I think lawyers will also need to become much more active in making sure clients obtain appropriate imaging studies. Most TBI patients have had some kind of imaging study performed, typically a conventional CT or MRI or both. It is widely recognized that these studies can be completely normal in patients with mild traumatic brain injury, even if the patients are suffering significant ongoing consequences.

Newer imaging technologies hold promise for more accurate detection and assessment. The resolution of MRI studies continues to improve, and the latest generation of studies can now detect microhemorrhages that may not have been detectable before. Diffusion-tensor imaging (DTI) and high angular resolution diffusion-weighted imaging (HARDI) can precisely measure changes in how water is diffused in axon bundles. Functional magnetic resonance imaging (fMRI) can literally provide an image of the brain at work, showing which neuronal networks are active as particular tasks are performed. MR spectroscopy can reveal levels of specific metabolites related to neuronal integrity, energy consumption, and cellular turnover. Abnormalities in these metabolites have been associated with neuronal injury resulting from traumatic brain injury. Positron emission tomograph (PET) imaging provides a detailed view of brain metabolism.

It is very rare that these emerging technologies are part of a patient's normal medical treatment and evaluation. They are not going to happen unless the patient's lawyer facilitates a discussion with the patient's treating clinician (usual the neurologist) that makes them happen.

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