Interview: Closed-Head Injuries Can be Valuable, But Often Are Overlooked by Lawyers

Kenneth I. Kolpan, a Boston attorney for 22 years, has handled several hundred closed-head injury cases, which involve hard-to-detect soft-tissue damage to the brain. Kolpan believes that closed-head injuries are often overlooked by plaintiff's attorneys yet can have serious effects on an injured person.

Kolpan is an assistant professor in rehabilitation medicine at the Tufts University School of Medicine and co-chair of the "Trial Lawyers Conference" of the National Head Injury Foundation. He is also the medical-legal editor of the Journal of Trauma Rehabilitation and a member of the board of directors of the Massachusetts Head Injury Association.

From his offices in Boston, he spoke to David C. Elmes of Lawyers Weekly USA on the problems inherent in such cases.

What exactly is a closed-head injury?

They involve injuries to the brain within the skull, sometimes resulting in no outward manifestations -meaning no injury that you can see to the head or no x-ray revealing an injury to the skull. But, in fact, there is an injury to the brain on either a microscopic level or a level that shows up radiologically.

So someone may appear to function well. They can speak, they can write down messages, but because of a brain injury, they are unable to concentrate or pay attention. If they are doing a task and you interrupt them, or give them more than one thing to do at the same time, they won't be able to do the task.

Are closed-head injury cases valuable?

They can be. If the lawyer selects, analyzes and "diagnoses" the case properly, then he can recover an appropriate award or settlement. While the medical community has done a lot of work in this area in the last ten to twenty years, the legal community has been way behind.

How much is such an injury worth?

They run the gamut because each case is so different. Even assuming liability, the injuries vary amongst individuals. So the recovery would depend on the injury and the client's preaccident skills.

They can range from five to well into seven figures. The largest verdict I have had was $2.8 million including interest, The next highest was a settlement for $2.5 million.

How can a lawyer identify clients with closed-head injuries?

It's difficult for an attorney not experienced in the field to identify those people because they otherwise appear to be functioning normally. You have to make sure the person is not the same person they were before. And though they can speak to you and understand what is going on, they describe to you situations where they used to be able to perform or function and now they cannot. They get lost between home and work and they never did that before. That's just an anecdote, but that should raise a flag with you. It may appear that they're still doing their job as fast as they were before. But when you investigate further, it's taking much more time and someone else is assisting them.

One client at times could answer my questions, but if I came back to a subject, she had trouble remembering that we discussed it. And when we walked outside, she didn't know how to get home despite traveling that route many times. So she could be coherent and relate things but could forget and be easily distracted at the same time.

Can these injuries be shown through testing?

They may or may not. It is important to note that many types of closed-head injuries occur where there are normal X-rays, CAT-Scans, MRIs and EEGS.

Would you give examples of situations where closed head injuries could occur?

If a motor vehicle traveling at highway speed comes to a sudden stop, the brain would be traveling at that speed, but when the skull slows down and stops, the brain continues to move forward - its ability to slow down and stop is different from the skull's.

Another example is when someone slips and falls on very slippery substance. All of a sudden, they smash against the ground, and their brain compresses against the skull and continues to reverberate.

These injuries can also occur when someone is punched hard enough so their head is snapped back faster than their brain.

We are also seeing more football injuries with AstroTurf. There is less give on carpet with cement floor underneath than there is on grass.

Do closed-head injuries tend to have permanent effects or can the person recover?

It does vary from case to case, but you can overlook the permanency of these injuries because the person appears to be "normal," but they have in fact incurred an injury to their brain. And depending upon the severity of it, the injury may be permanent. And there are strategies that people use to adapt to help them function. But there are people who do not recover to the level they were at prior to the accident.>

Can these cases be difficult to prove to a jury?

Yes. One problem is the nomenclature. Closed-head injuries are defined as "mild," "moderate" or "severe" based on the length of unconsciousness that someone sustains - though unconsciousness is not necessary for a brain injury. "Mild" is a loss of consciousness for less than 30 minutes; 11 "moderate" is a loss of consciousness for 30 minutes to 24 hours; and "severe" is a loss of consciousness for more than 24 hours.

While the nomenclature is helpful in appreciating the initial signs and symptoms, it doesn't necessarily predict the cognitive deficits or what types of deficits you're going to see later on. But "mild" or "minor" brain injury can still be a significant permanent injury. I represented a woman years ago who was diagnosed as having a "mild" brain injury but she never worked again in her life.

When the jury hears that the injury is "mild" or that there aren't any physical signs or diagnostic tests except for neuropsychological testing, it is difficult to persuade them that you have an objective basis to prove not only that this person has sustained a closed-head injury, but also that it has affected their ability to function at work or at school.

Where an injury doesn't show up on traditional tests, how do you prove it?

There are objective test data criteria available in the field of neuropsychology. Neuropsychology is the administering of a battery of tests sometimes over a two-day period which measure and quantify a person's cognitive functioning. The result, interpreted by a neuropsychologist who knows closed-head injuries, demonstrates isolated areas of deficits while other areas remain intact.

Are there other ways to prove these cases?

You look to several sources. You look to specialists who treat people with closed-head injuries - not just neurologists, not just neuropsychologists, not just physiatrists (doctors of physical medicine). But in those specialties there are individuals who treat persons with closed-head injuries. In addition to the professionals, you look very much to the "before and after" witnesses - the people from work, from school or from their families - who testify about the plaintiff's performance before and after their injury. And then the third area in which you seek testimony is the plaintiffs themselves.

Is there a risk of putting the plaintiff on the stand?

Yes. Having the plaintiff testify, which I believe is necessary and warranted in most cases, also presents the greatest challenge because they appear to be normal. You must demonstrate before the jury how a person is unable to cope or function in certain situations - that behind this veneer this person has some real problems. You also must be able to ask the plaintiff questions to demonstrate the problems that the professionals have documented.

What other problems does a lawyer taking on a closed-bead injury case need to took out for?

Sometimes there is malingering. I don't know that it's a problem, but an attorney has to be able to distinguish those cases where a client is attempting to get secondary gain from complaining about these types of symptoms -inability to remember, to concentrate, to remain focused - from those who have truly sustained a closed-head injury. Because the injury is real and the effects are real, it's incumbent upon the attorney to investigate with employers, teachers, family members - people close to this person - whether or not this person has changed. In addition, there are neuropsychological tests that can address malingering. And lastly, one has to ask: Does it make sense for this person not to function in the world they used to function in? Does it really make sense that they would risk that for the chance to obtain some compensation?

Do you have any other advice or recommendations for a Lawyer handling such cases?

I would strongly recommend for treatment purposes and for expert testimony that the client be seen by professionals who deal with traumatic brain injury. It's not good enough to be seen by any neurologist, neuropsychologist, or physiatrist. It's crucial that they be seen by the appropriate professional who concentrates in this area, In addition, there are other therapists such as speech, occupational, physical and recreational therapists who specialize in treating brain injury clients whose needs are different from the rest of the population.

It's also important to identify cases - whether they are new cases or already in your case load - because injuries occur without the head striking anything and/or without loss of consciousness. So you can have a person in a car accident who doesn't strike the side of the car but still sustains a closed-head injury. You can have the football player whose helmet doesn't hit the ground or another player, but they are jarred on a tackle from behind and their neck snaps forward and back and brain then slides back and forth causing injury. Or people sustain other types of injuries along with the closed-head injury and because there's no outward manifestation, the head injury is overlooked by the attorney working on the case.

So a lot of times lawyers are looking for scarring, broken bones, etc.?

That's one set of cases. And there is the more severe case where someone suffers paralysis and many times there are serious dual injuries involving, both closed-head injuries and spinal injuries. So they tend to be overlooked.

Published with permission of Lawyers Weekly USA.