Medicolegal Aspects of Head Injury

Reprinted from: Rehabilitation of the Adult and Child with Traumatic Brain Injury

By Kenneth I. Kolpan, Esq.

Contents

Treatment

Decision Making

Insurance Coverage

Personal Injury Compensation Litigation

Expert Testimony

Settlements

Conclusion

Persons who incur head injury will necessarily face legal problems as a result of their injury. The nature of the injury with its resultant treatment, as well as the cause of the injury (often a motor vehicle accident), leads to involvement in the legal system. Legal rights of the head injured and concomitant responsibilities of health care providers occupy an important role in the treatment of the head injured patient from acute stages through subacute rehabilitation and the posthospital rehabilitation stage. Early medical treatment for head injuries involves emergency treatment of person(s) who will be unable to give consent for treatment; other medical treatment is long range, raising legal issues of insurance coverage. Finally, many head injuries are the result of motor vehicle accidents, sports injuries, or trauma caused by a responsible third party. The responsible party is sued in what is known as personal injury litigation. Each of these areas-medical treatment, insurance coverage, and personal injury compensation-is affected by the law.

This chapter discusses three areas in which legal issues are likely to emerge. The topics are discussed according to a medical chronology-acute care, rehabilitation, and long term planning-though the legal concerns do not neatly fit into any time sequence. Nor does each person with a head injury face every legal problem discussed subsequently; however, these are the most common legal problems when a head injury occurs. The following discussion uses statutes and legal cases for illustrative purposes only and is not a substitute for seeking competent legal advice.

TREATMENT

As soon as medical personnel provide emergency treatment to a person with a head injury, the law is involved with the issue of informed consent. Because persons with head injury are unable to respond to medical personnel as a result of their injury, informed consent is dealt with in a common sense fashion. The law finds that the injured party implicitly gives his or her consent to provide the necessary medical treatment. Implied consent allows medical treatment to be rendered without the provider fearing liability (i.e., committing an unlawful battery) for giving treatment without a patient's authorization.

For implied consent to apply, the injured party must require emergency treatment to save life or limb and the treatment rendered must be so limited. Once the emergency treatment is no longer required, the doctrine of implied consent does not govern.

Absent in an emergency, actual informed consent for medical treatment must be obtained before the treatment is rendered. 'This principle recognizes that each individual person has a constitutional right to privacy and self-determination. At the same time, the law provides that medical personnel are at substantial risk if they treat a person without authority. If the head injured person is competent, consent is obtained from the patient as long as he or she is 18 years of age or older. If the head injured person is deemed incompetent by a court of law, informed consent must be obtained from the patient's legally authorized representative. An example follows:

Case 1. Mr. W is a 45-year-old man with chronic organic brain syndrome due to a traumatic accident years ago. Tile injury resulted in physical disabilities and cognitive impairment, Mr. W. also has difficulty controlling his behavior. He is at a substantial risk of harm to himself as he consistently gets up from his wheelchair, but he does not have sufficient balance to maintain ambulation.

During his hospitalization, Mr. W had a suprapubic catheter placed. Subsequently Mr. W developed problems with the catheter as it became twisted or clogged. He could identify his need to urinate but was unable to do so. His treating physician recommended removal of the catheter and dilatation of the narrowed urethra. Although considered a simple procedure, the surgery was not without risks. The patient was at risk from the anesthesia and possible infection. Permission for the recommended surgery, was needed.

Mr. W was unable to assent to the procedure because he could not understand nor remember for but a moment any of the information about the proposed surgery. Unmarried and without family, the patient had no representative who might be authorized to make the consent decision. The treating physician was unable to arrange for the operation unless he could obtain consent from someone authorized to speak on Mr. W's behalf.

This case went to the local probate court for resolution. This is an example of a guardian being required to represent the needs of a head injured patient. A guardianship proceeding requires that a physician (not any other professional) opine that the patient is either mentally ill or retarded. (Some states vary on this first requirement.) Since head injuries do not necessarily fit in either category, doctors all too often describe a patient as mentally ill, though the patient is not thought of in that context.

The second point required in a guardianship proceeding is that the patient is unable to care for himself as a result of impaired thinking.

A third criteria must be met: that Mr. W's impairment prevents him from appreciating the consequences of his decision relative to the offered medical treatment.

In seeking the court's determination relative to incompetence and authorization for the medical procedure, a proposed treatment plan had to be submitted. After the court had found Mr. W sufficiently impaired as to render him incompetent to decide his own course of medical treatment, the court reviewed the risks and benefits of the treatment, the patient's prognosis with or without treatment, and the nature of surgery. A person was appointed as Mr. W's guardian with specific authorization to consent to customary and usual medical treatment.

Before the court allowed the guardian to assent to the proposed surgery, Mr. W's wishes had to be accounted for. The guardian was to decide the treatment issue according to Mr. W's wishes were he able to express them now. This is the "substituted judgment" principle; it replaces the long-followed paternalistic approach of courts toward incompetents.

A guardian ad litem (an investigator) was appointed to ascertain the patient's wishes. The guardian ad litem met with Mr. W and the medical staff. She found Mr. W to be incompetent and a danger to himself. Further, she weighed the risks of the proposed surgery with its benefits and recommended that the guardian assent to the procedure. The court agreed.

The appointing of a guardian with authority to consent to customary and usual medical treatment is essential to the ongoing treatment of the head injured. Previously, appointed guardians in some states do not automatically have authority to consent to medical treatment and must return to the court for such authorization. Even where guardians have authorization to consent to medical treatment, it may not extend to psychotropic medication. Health care providers should be aware of this point.

When a patient requires psychotropic medication, the procedure involved is more detailed to protect both the rights of the head injured and the potential liabilities of the provider. The rest of Mr. W's case addresses this point.

Mr. W's injury caused him to have behavior problems. The medical staff recommended psychotropic medication (as opposed to state institutionalization) as reasonable means of managing his behavior. Though the psychotropic medication is not as invasive as surgery, the known side effects of the medication such as tardive dyskinesia are substantial. Mr. W's treatment plan included the antipsychotic medication, Mellaril, which, according to his treating physician, was used to control his aggressive symptoms. It was stated that the medication was not treating the underlying brain injury but rather the patient's outbursts. The court reviewed the treatment plan involving psvchotropic medication before it would approve it.

The above procedure in Mr. W's case evolves from the case of Rogers v Okin,' which states that antipsychotic medication cannot be administered to a patient, absent an emergency against the patient's will unless a judge, using a substitute judgment standard, determines that the patient would have consented to the administration of antipsychotic medication. The court required a treatment plan that must include

1. Patient's express preferences even while incompetent
2. 2. Religious convictions of the incompetent person (as it affects treatment)
3. 3. Impact on the head injured person's family
4. 4. Probability of side effects from the proposed medical treatment
5. 5. Prognosis without the proposed treatment
6. 6. Prognosis with the proposed treatment

The treating doctor is then asked to write a treatment plan covering each of these six factors. A judge reviews each and makes a substituted judgment decision whether or not the patient would assent to the proposed antipsychotic medication.

The court reviewed and approved the plan for Mr. W. Court involvement did not end; periodic reviews were to be submitted to the court.

By virtue of the Rogers case, the incompetent's right to choose his or her own medical treatment is preserved even though the individual is unable to fully understand the treatment. At the same time, the health care provider is protected because a court order has set out the parameters of the treatment. Though somewhat cumbersome, the court does offer necessary protection to all involved. In an emergency, antipsychotic medication may be provided to an unwilling patient as long as other specific requirements are followed and the justification for not seeking court involvement does not go beyond the described emergency.

Issues of informed consent are not limited to the acute emergency phase of treating the head injured. As the head injured continue to survive for longer periods of time in institutions, hospitals, rehabilitation facilities, and nursing homes, courts are extending their involvement in treatment of these patients in order to protect the rights of those unable to speak for themselves. In 1976, Karen Quinlan, a patient in a persistent vegetative state, was being maintained on a ventilator. Questions arose regarding removal of the ventilator. A guardian, appointed by the court, sought permission to withdraw the ventilator. The court allowed removal of the ventilator since the life-prolonging ventilation (not life-saving treatment) was not invasive and the underlying condition was itself not treatable. Ms. Quinlan died some 9 years after the ventilator was removed.

The Quinlan case opened the door for legal challenges to other treatment modalities given to persons with head injury, e.g., nutrition and hydration. In Re.- Claire Conroy, I guidelines for withholding sustenance were established. The case, however, dealt only with an incompetent, institutionalized elderly person with severe mental and physical disabilities who had a limited life expectancy of less than a year. Conroy does not apply to the head injured population or to head injury facilities. Nevertheless, the court's discussion of withdrawing sustenance is worth noting.

A lower court in New Jersey had approved withdrawal of hydration for Ms. Conroy, though it was tantamount to allowing her to die. A higher New Jersey court limited the extent of the Conroy decision since Conroy was not brain dead, comatose, or in a vegetative state. Though medical evidence was inconclusive as to whether she experienced pain, there was no reasonable possibility of her returning to a "cognitive" life-that is, awareness of her environment. The court limited its decision to the following set of circumstances: elderly persons residing in nursing homes who are likely to die within I year despite receiving treatment. In those circumstances, sustenance could be withdrawn.

The Conroy decision reaffirms a person's right to determine treatment even if it results in the person's death. The court emphasized that withdrawing sustenance is not suicide because it is not a self-inflicted wound that causes death, rather the underlying disease is the cause of death.

The Conroy court used a balancing test to come to its decision. On one hand the court reviewed the patient's right of self-determination and on the other hand the state's countervailing interests in preserving life, protecting innocent third parties, and upholding the integrity of the medical profession. The court declared that life sustaining treatment could be withheld or withdraw from an incompetent patient if that particular patient would have refused the treatment under the circumstances involved.

The Conroy case is important to rehabilitation specialists who treat the head injured because it is a reminder that a person's mental condition (incompetence) does no change the person's basic right to determine his or her own course of medical treatment even if the medical treatment, such as hydration and nutrition, is life sustaining. This legal principle was most recently advanced in a case that did involve a patient with head injury.

Paul Brophy suffered a ruptured aneurysm located at the apex of the basilar artery. As a result, he was in a persistent vegetative state. A gastrostomy tube had bee placed 7 months after his injury to provide for nutrition and hydration. Brophy's wife was appointed his guardian, and she asked the court's permission to withdraw or clamp his feeding tube. A lower probate court refused her request.

The court was well aware of the number of persons affected by its decision. In a footnote, the court cited the President's Commission Report stating that the causes and places of death in the United States have changed dramatically over the years. It is now estimated that institutional settings account for 80 percent of the deaths that occur. The primary cause of death is progressive illness rather than acute causes. Providers watched this case closely since the institution where Brophy resided refused to remove or clamp the G tube as requested by the guardian's wife.

The Brophy court stated that Brophy was not terminally ill (unlike Conroy) and that he could live on for several years although he had a shortened life expectancy due to nonaggressive therapies making him susceptible to secondary complications. (See later discussion of life expectancy of a person with a head injury.) The court recognized that the G tube itself was not painful but found that death by dehydration was painful. With this factual context set, the court decided that the G tube could be removed and the facility would not be compelled to remove it. The facility was ordered to assist in the transfer of Brophy to a facility that would carry out the court's order (p. 441 ).

The Massachusetts Court followed the "substituted judgment approach." It analyzed Brophy's expressed preferences, his religious convictions, the impact of the decision on his family, the probable side effects of the proposed treatment, and his prognosis both with and without treatment. Unlike many cases involving young head injured persons, Brophy had expressed his preferences for nontreatment were he to be in a persistent vegetative state. His religious convictions and the impact on his family were equally clear. His preferences were supported by his family. The court focused its attention on Brophy's wishes making his constitutional right of privacy paramount. The fact that Brophy was comatose in no way lessened his constitutional guarantee against invasion of his privacy through unwanted medical treatment (pp. 427-436). His incompetence did not affect his legal right to choose medical treatment; it only changed the manner by which his choice was implemented. The court directed Brophy's wife (his guardian) to carry out his wishes (pp. 441-442).

The Brophy case does not mean that treatment can be withdrawn or withheld in all circumstances involving seriously head injured persons. Each case calls for a balancing of the individual's right of self-determination and the state's interest in the preservation of life. The court focused on the patient's desires and not on the type of treatment involved, even though the nature of the treatment is considered. Emphasis on the type of treatment-extraordinary or ordinary-detracts from the issue, which is the patient's preferences. This is true whether the treatment is to be withheld or withdrawn (pp. 437-438).' In conclusion, the Brophy decision upholds an individual's right to choose or refuse medical treatment regardless of his or her physical or mental condition.

DECISION MAKING

When patients lose their ability to make treatment decisions, they may also lose the ability to make other personal decisions such as signing contracts, conducting business, and spending money. Like medical treatment decisions, the personal decisions are carried out by the head injured person unless that person becomes incompetent. If a court adjudicates a patient to be unable to appreciate other personal decisions, someone must be appointed the lawful representative. It is not sufficient that a spouse, friend, or health care provider take over these responsibilities. The better course of action is the court appointing a person legally responsible to assume the personal decision making. The court procedure ensures that an appropriate person will be named, his authority clearly delineated, land his decisions accounted for. Most courts require periodic accounting to the court and make the appointment subject to removal for acts of bad faith or fraudulence. Different jurisdictions provide different titles: guardians of the property, conservator, trustee, receiver; but the effect is to guard the incompetent person and his or her assets while providing protection to the person legally authorized to make decisions on behalf of the incompetent head injured individual.

Since head injuries require extensive medical treatment, payment for medical services is crucial. When conflicts arise, legal consultation follows.

INSURANCE COVERAGE

Head injury patients who require lengthy hospitalization, rehabilitation care, and outpatient therapies may pay for their treatment through their health care insurance. Because of the limitations, either monetary ceiling or contractual definitions, health care insurance is often a major obstacle to obtaining optimal rehabilitation treatment. If a person has a medical insurance plan, the coverage is more often for acute hospitalization up to some limit and for rehabilitation care to a lesser limit. The gap between available health care insurance and optimal rehabilitation is a cause for pursuing personal injury litigation, but compensation from such litigation is usually years away while insurance coverage for the required treatment is needed immediately. To the disappointment of families of head injured and some institutions, available health insurance is usually inadequate to cover required treatment for head injuries. An example follows:

Case 2. A man who had suffered a head injury had been in a skilled nursing facility, for several years. He had made progress in the head injury program. The facility had provided periodic evaluations to the governmental insurance payor. As the patient's progress waned, the insurer sent notice to the facility that it would no longer pay for the services rendered, and gave the facility 30 days to make arrangements for the patient's transfer. With limited resources, the family's choice was to transfer the head injured person to a facility that would accept governmental payments (Medicaid or Medicare) at a lower per diem, but that type of facility, did not provide the unique treatment found in this head injury facility.

This case is not unusual. The insurer claimed that its contract did not provide for custodial "care" in a skilled nursing facility. Their contract defined "custodial care" to be care without the capability of progress or improvement. The fact that the patient was in a head injury facility that was licensed as a skilled nursing facility only reinforced the insurer's perception that the facility was providing custodial care. The facility sought legal advice on how to proceed. Discussion with staff and administration revealed that the patient was involved in many therapies aimed at improving his physical and mental condition. Progress, albeit slow, was continuing. When medical records were reviewed, the records failed to document the patient's progress, though he responded to respiratory therapy, speech therapy, and sensory stimulation program in measurable ways. The facility appealed the insurer's decision to the company's internal review board. After reading the current reports, documented progress, the planned objectives, goals, and actual changes in the patient's condition, the review board reversed its earlier decision and paid for the patient's continued care at the head injury facility.

This example shows that insurers, like laypeople, are unfamiliar with head injury programs. Providers have an obligation to educate payors (private or government) about the efficacy, purpose, and results of these relatively new programs. Treatment reports must carefully document the patient's recovery and rehabilitation, even when progress is slow and difficult to measure. Insurers are concerned about expansion of their contracts into areas that appear to be costly. Though this is a legitimate concern, a head injury program that does fall within the health insurance contract obligates the insurer to provide payment for the head injury program as long as it is well documented. This is true whether the payor is a private carrier or a governmental program. This issue does not arise when the family has sufficient private resources or the injured person has received personal injury compensation from a responsible party. When money comes from a private source or a liability suit, the injured person has the freedom to choose the location and nature of treatment and is not limited by contractual provisions. This is the reason why personal injury litigation is a viable alternative to financing needed rehabilitation car

PERSONAL INJURY

COMPENSATION LITIGATION

Traumatic head injuries are often a result of a motor vehicle accident, sports injury, or a defective product. Under many of these circumstances, another person or entity may be liable for the injury to the patient. A personal injury lawsuit seeks a judicial determination that a party (defendant) was negligent, caused the injury, and should Compensate the injured party. If the defendant has insurance, payment to the injured party comes from the liability insurance carrier when the matter is settled or ends in judgment for the injured party. Once payment is received, it is unrestricted and can be used by the injured party for appropriate medical treatment. Before personal injury litigation reaches that point, there are numerous legal hurdles that must be overcome.

If the head injured person is going to sue for compensation, there are time limits within which legal proceedings must be commenced (Statute of Limitations). Limits may vary according to the jurisdiction (e.g., 2 or 3 years) and to the defendant involved in the type of legal action (e.g., medical malpractice). If a person fails to file within the requisite time period, the suit is forever barred. Some time limitations may be tolled due to the injured person's age (minority), incapacity (incompetence), or because the jurisdiction follows the "rule of discovery."

The latter rule states that the Statute of limitations starts to run when the injured person "discovers or reasonably should have discovered" the injury. States that follow this rule recognize that some injuries are not readily discoverable and that these time limitations to file suit should not begin until that injury is or should have been discovered. The rule balances the defendant's interest in not being forever at risk for a lawsuit and the injured party's right to sue for injuries that arc discovered late. A case example follows:

Case 3. A mason was hit on the head by 4 x 4 x 8 inch timber. He was told he had a bad concussion. Twenty-four hours later he was listless and became depressed. He was examined by two different neurologists but no neurologic symptoms were noted. At a clinic, he was diagnosed its being anxious and depressed. He entered psychotherapy. The psychiatrist said his symptoms were related to his accident and described him as having "compensation neurosis." Nearly, 2 years after the accident, he was diagnosed its having chronic, mild, organic symptoms associated with brain trauma. Nearly, 3 years after the accident, his attorney received a report from a forensic psychiatrist relative to his injury. Some 41/2 years after the accident, the mason filed a lawsuit even though there was a 3-year Statute of Limitations. The jurisdiction did follow the "rule of discovery."

The question raised by this illustration is: When did the Statute of Limitations begin to run: when the mason was injured or nearly 3 years later when the mason states he was first informed of his medical condition? If the mason's reasoning is accepted, then his lawsuit will go forward. Otherwise, it is barred by the 3-year Statute of Limitations.

In the case of Gore v O'Connell's Sons, the court stated that the Statute of Limitations generally runs from the time of injury. Only when the condition is inherently unknowable, such as in a latent disease (asbestosis), does the rule of discovery apply. Because the mason had sought out medical treatment and his doctors had related his medical condition to the trauma, the medical condition was not inherently unknowable even in retrospect. When a condition becomes manifest, such as the symptoms the mason had, the Statute of Limitations is not tolled. Unfortunately for the mason and other persons who have head injuries, they develop problems related to trauma and fail to identify them within the time allotted under the Statute of Limitations, they may have lost an opportunity for person injury compensation. Early identification and legal action may be advisable. However once a lawsuit is instituted, early resolution of the lawsuit may be ill-advised.

In a case involving a 15-year-old boy injured in an automobile accident, early resolution of his lawsuit was detrimental. Suit had been brought against the driver for negligence within the 3-year Statute of Limitations. The suit resulted in a jury verdict to the head injured boy. Less than 3 months after the jury verdict, the boy suffered symptoms of seizures for the first time. Medical evidence was submitted to the trial judge months after the jury verdict that the seizures were a direct result of the automobile accident. Medical testimony established That the seizure could not have been discovers during the time between the automobile accident and the jury verdict even with appropriate medical care being given during that time.

The injured boy's seizures were real an causally related to his automobile accident but the jury did not consider it in awarding compensation to him. This case was reopened under local rules permitting a new trial where there is "newly discovered evidence" which was not available to the injured party during the jury trial and such evidence would have affected the ultimate jury decision (e.g., the amount of damages would have been more).

Though this lawsuit was reopened, cases that settle can rarely be opened when undiscovered medical problems arise which are causally related to the incident involved in a lawsuit. 'This is troublesome because 90 percent of personal injury cases, including those involving head injuries, settle without a trial. Issues of fraud or incompetence may be sufficient basis to challenge a settlement. When a person's unknown medical condition manifests itself after the settlement, the injured person is without recourse. To protect against this situation, attorneys representing the head injured person must be aware of the late consequences of head injuries such as behavioral problems, seizures, and dementia. Similarly, juries and opposing counsel must be made aware of these late sequelae. Experts familiar with these medical complications are an important part in the representation of a head injured person.

EXPERT TESTIMONY

Since most people do not understand the nature of head injury, how it occurs, and its consequences, expert testimony is the best way to convince opposing counsel, insurers, and jurors about head injury. For example, expert evidence about CT findings, x-ray films, EEG, whether abnormal or not, must be explained to the unknowing; otherwise, incorrect decisions regarding compensation will be made. Basic medical evidence about anatomy and how a head injury occurs even without outward signs must be explained. The significance of negative findings on CT and skull x-ray films and EE (is must also be provided. Otherwise, head injured persons, especially those with so called "minor or moderate" injury, will not receive just compensation. A recent court case demonstrates.

Case 4. A 26-year-old who suffered a head injury from a 400-pound garage door being pulled down on her head was subsequently examined at a hospital where x-ray and CT films and EEG results were all within normal limits. She continued to have substantial impairments in cognition, memory, and concentration which were all documented in neuropsychologic testing. An expert neurologist was called to testify, as to the seriousness of her injury notwithstanding the normal findings. His explanation is found in Table 34-1.

Table 34-1. TRANSCRIPT OF TESTIMONY

Q Are you aware of any medical reason why a person with a head injury would have a normal CAT Scan?

A The CAT Scan gives us a snapshot, a photograph of the anatomy of the brain as if someone had taken a brain out and were able to slice it and then look at each individual piece. But the significant injuries that are done to people who have head injuries are not as a result of large hemorrhages or strokes but rather they are done on a microscopic level because the individual cells and the connections from one cell to another are actually torn. The tearing is done on such a microscopic level that the CAT Scan may not he able to tell us that this injury has occurred but rather we see in the patient in examining them (sic) an insult and, knowing the laboratory research that has been done on the nature of the head injury, we can then infer that the damage that has been done is the result of what is called a shearing effect or a tearing of the fibers that travel from one cell to another, and these are too small to be seen on the CAT Scan.

THE COURT. And if a person had a head injury, could they [sic] have a normal EEG and still have brain damage?

THE WITNESS. The reason is that the EEG again is a very gross test. It records the electrical activity from the brain but takes in very large territories and the test is done by placing wires on the skull and recording the electrical activity produced by the brain. Unfortunately, the test only tests the upper outer two-thirds of the brain because we can't get to the undersurface and it only records information approximately one inch deep into the brain. And so any damage that is done deeper than one inch or on the undersurface will not show up on the EEG. Also, there is a requirement of a fairly significant injury to the brain to reduce the amount of electrical activity both in how rapidly, electricity is produced and also in the degree or the voltage from the electricity that the brain produces. So you can have a fairly significant injury without change in the EEG just as you can have very significant abnormality in a person's ability to function after birth injuries, such as [sic] retarded people may have absolutely normal EEG's and normal CAT Scans and yet their ability to function in life may be very much less in quality and degree than a person who isn't retarded.

Q Doctor, can persons with head injury have a normal skull film X-ray as well?

A Certainly.

Q Why is that?

A In order to produce a skull fracture, you often deal with a different force than you do with the problem inside the brain. We are talking about two different consistencies. The skull can take up a great deal of force without breaking whereas the brain is loose inside the skull. The brain has an ability to shift slightly within the skull so that when the head is struck, the brain may shift inside. And the inner surface of the skull is not completely smooth so that there are some irregular areas that can produce an abrasion of the brain. Also, the brain moves inside the skull the way a person moves inside a car when the brakes are applied in a very hard manner. We move forward when the brakes are applied. When the skull is struck and stops, the brain will continue to move forward. The movement is not always just straight forward but there is a twisting motion because pressure is applied to the brain when it strikes the inside of the skull and, as far as the pressure waves are concerned, there is only one way for that pressure wave to move and that is down toward the center of the brain. And if the head hasn't been struck absolutely straight, there is a bit of a twist or torque that occurs to the brain so that there is an impact injury, of actually hitting of the brain inside the skull and also a twisting injury that occurs.

From Transcript

The apparent absence of objective evidence of injury is a major impediment in establishing that a head injury has occurred. Attorneys need this documentation to effectively represent their clients. The neuropsychologist is the key. Before a neuropsychologist can present his or her findings in a courtroom, it must be established that the training and education received by the neuropsychologist is adequate to allow him or her to render an opinion regarding brain injury. Further, the neuropsychologist must explain the nature of the tests, the norms involved, the reliability, the validity, and the purposes of the individual subtests. Since the impairments documented in neuropsychologic testing such as memory, concentration, and attention are difficult to otherwise demonstrate in a courtroom (the head injured person appears better than he is because it is an orderly setting), the objective findings on neuropsychologic testing are essential evidence in personal injury litigation. A jury can understand the quantifications under each subtest and, hopefully, appreciate the significance of the patient's test scores from the norm. A piece of demonstrative evidence may be helpful (Table 34-2).

As the neuropsychologist testifies about the test scores, each test is described, the norm is emphasized and the significance of the patient's score in terms of the norm is explained. In this way, the jury can see and hear objective evidence that quantifies the incurred brain injury.

Table 34-2. SAMPLE: SUMMARY OF NEUROPSYCHOLOGIC

FUNCTIONS/BRAIN IMPAIRMENT (HALSTEAD-REITAN SERIES)-EXHIBIT 8

  Test         Halstead-Reitan Battery Suggested Cut-offs for Brain Damage                 Score

   With sufficient background, foundation, and training the neuropsychologist may offer an opinion regarding the cause (e.g., of the accident) of the head injury. Some jurisdictions, however, do not allow a neuropsychologist to render an opinion regarding causation and prognosis related to brain injury;" other jurisdictions are more willing. If the neuropsychologist is a trained vocational rehabilitation specialist, he or she could proffer an opinion regarding the person's present and future employability. If not, an expert in vocational rehabilitation should testify to assist the jury in its decision related to the head injured person's ability to return to work.

An important expert in the head injured person's case is a person who is familiar with long-term planning for the head injured. A psychiatrist, neurologist, neuropsychologist, or rehabilitation counselor may all provide the specifics of such long-term planning (including lifelong institutional care, if that is appropriate). The long-range plan must then be quantified in dollar terms and the present cost of such a plan projected over the person's expected lifetime. An economist will provide this testimony.

Not only the extent, frequency, and cost of the itemized treatments but also the duration of the treatment influence the ultimate cost of long-term care for the head in injured person. Obviously, if a head injured person's life expectancy is reduced it will dramatically affect the extent of the long term treatment. Life expectancy tables provide guidance; they provide the number of years a person will continue to live, according to a statistical pool and for the general population. Estimating a life expectancy of a person in a coma or with serious head injury may become an arguable point that is not easily resolved by using the usual life expectancy tables. Each side of a lawsuit contests whether the head injury is a life-threatening situation affecting life expectancy or, as long as a person is medically stable and receives medical treatment, the injury has no effect on life expectancy. The latter point posits that head injury itself is not life threatening and that secondary complications, if appropriately treated, will not affect a head injured person's life expectancy.

Persons who provide long-term treatment to the head injured (including those in coma) will be asked to testify about life expectancy of the patient in question and to document the same. Existing life expectancy tables and previous research on this population may be unreliable, as they do not include head injured patients who receive aggressive trauma care and rehabilitation treatment.

Added to compensation for a person's lost employment and cost of long-term care is payment for pain and suffering and loss of enjoyment of life. Head injured person must endure through their lifetime a recognition but not reconciliation that their present condition is unlike that of their former self. It is difficult to assess pain and suffering and more so when the person is in a prolonged coma. In a recent New Jersey case, a patient who was in coma for 6 years sued a local county for causing an automobile accident." Each attorney had an expert who assumed diametrically opposed opinions concerning her ability to appreciate pain. A "Day in the Life" videotape showed the person in daily activities including therapy. The film was to be shown to the jury. During the film, the patient smiled after a compliment from one of her medical staff. Defense counsel, after reviewing the tape, felt the jury would interpret the patient's smile as evidence that the patient did respond to her environment as the plaintiffs expert opined. The plaintiffs expert was ready to testify that her repeated grimacing during physical therapy was further evidence that she responded to environmental stimuli.

Finally, the plaintiffs neurologist was expected to testify that he replicated the patient's grimaces during his neurologic examination. This case was settled, in part, because the videotape presentation provided graphic evidence supporting plaintiffs contentions regarding her pain and suffering.

SETTLEMENTS

Personal injury suits usually end with a settlement. A settlement can be made in one lump sum or over a period of time (e.g., structured settlement). Each method has its advantages and drawbacks. A lump sum is a certain amount that can be invested and, hopefully, preserved over a person's lifetime. The lump sum, not the investment, is nontaxable. When a substantial sum o money is involved, some families may be ill-equipped to manage the money and thus it may not last through the time it is needed.

A structured settlement addresses this last point by providing periodic payments, some of which may be guaranteed for a number of years (and is paid to the person's estate when he or she dies). The remaining portions of payments are made over the person's lifetime. Under current law, the periodic payments are nontaxable. The payments usually provide for a cost of living and are periodic lump sum payments. Structured settlements are inflexible, give the head injury person no control over the monies, and depend on the insurance company's solvency and any other underlined guarantors.

Each case is different. The settlement must be appropriate in light of the facts of the case, the needs of the injured party, and the abilities of the person handling the finances.

CONCLUSION

The head injured confront lifelong problems in obtaining medically appropriate treatment and payment for the care. Legal principles often determine whether a head injured patient will receive needed treatment. Providers and families of the head injured individual, through understanding of their legal responsibilities and rights, will be better able to provide and obtain maximum rehabilitation treatment.

REFERENCES

1. Rolierts v Commission of the Department of Mental Health.

2. In re Karen Ann Quinlan, 70 NJ 10 (1976).

3. In the Matter of Claire Conroy, 98 NJ 321 ( 1985).

4. In the Matter of Claire Conroy, 190 NJ Sup Ct 453 (1983).

5. In the Matter of Claire Conroy, 190 NJ Super, 321 (1985).

6. Brophv v New England Sinai Hospital, Inc., 398 Mass 417 (1986).

7. Tanya Gore et al v Daniel O'Connell's Sons, Inc., 17 Mass App Ct 645 (1984).

8. David A VanAlstvne v Richard Whalen, 15 Mass App Ct 340 (1983), 20 Mass App Ct 239 (1985).

9. Mass R Civ P No 60 (b)(2)

10. Transcript, Susan Berberian v K-Mart Corporation, Norfolk County, Mass Civil Action Number 137202 (February 5, 1986).

11. GIW Southern Valve Company v Robert C. Smith, 471 So 2d81 (Fla App 2 Dist 1985).

12. Simon v Simon, 385 Mass 91, 106 (1982); Lavasco v Parkhurst Marine Ry Co, 322 Mass 64 (1947).

13. Sharon Feller et al v County of Bergen, Superior Court of New Jersey, Law Division, Bergen County Docket No L-065644-83.