Cerebral Palsy Lawyer & Attorney : Burke & Eisner Law Firm : Medical Malpractice Lawyers & Attorneys

Heather Grow's daughter, Cassie, was delivered by caesarian section but only after she had been stuck in the birth canal for over thirteen hours.  In 1997 Heather was told that she had a narrow pelvic arch and that became an issue about two weeks before delivery when her doctors realized that the baby was about nine pounds.

Cassie got stuck in the birth canal clearly being pushed through an opening where she couldn't fit.  Attorney Patrick P.J. Beirne described it as like trying to push a watermelon through an opening the size of an apple.   Not only was Cassie too big for the birth canal but medical workers continued to give Heather drugs to make the uterus contract.  She continued having contractions every couple minutes.  This continued for hours all the while squeezing the baby's head causing brain damage.

Attorney Mark Mueller said that the doctor had a responsibility to ensure that Heather had a safe delivery.

Cassie, now 11, is a spastic quadriplegic. That means she has limited use of her limbs.

She can walk short distances but needs a walker. She can see but because the part of her brain that processes vision was damaged, her brain can't properly interpret what her eyes see. She has problems using her hands, and she is mildly retarded, Mueller said.

"These are permanent injuries," Mueller said.

The vast majority of the settlement is for Cassie's future medical needs  and future loss of ability to perform ordinary activities.

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Traumatic Brain Injuries can be catastrophic. The victims often suffer disabilities for the rest of their lives. The cost of medical care is often in the hundreds of thousands, even just for the first few years of care. In New Hampshire, when these costs are paid by Medicaid, injured victims may find themselves unable to make a claim against the person who caused the injuries.

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We often hear the word "concussion" used when people bang their heads on an object, or when they are hit on the head. But Stedman's Medical Dictionary defines the term "concussion" to mean, "An injury to a soft structure, especially the brain, produced by a violent blow and followed by a temporary or prolonged loss of function." This is a good example of why lawyers need to use medical experts to educate themselves, and the jury, to provide a better understanding of a client's injuries.

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One out of every 250 residents in New Hampshire suffers a Traumatic Brain Injury resulting in death or hospital based treatment each year.

For every one Traumatic Brain Injury death, 26 people are hospitalized or receive acute care treatment in a hospital ER.

Falls and vehicular accidents are the leading cause of traumatic head injury deaths and hospitalizations.

This and a substantial amount of other useful data on the occurrences and mortalities related to traumatic brain injuries has been provided by New Hampshire Brain Injury Association, the New Hampshire Department of Health and Human Services, Division of Developmental Services, and the New Hampshire Brain and Spinal Cord Injury Advisory Counsel. The report, entitled "Traumatic Brain Injury and Spinal Cord Injury Occurrence and Mortality in New Hampshire" contains a substantial amount of information available to the public. Read the report here.

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In many personal injury cases, like car accidents or slip and falls, a person is hurt, incurs medical bills, gets better, and moves on with life. The cost of that victim's care is usually paid because it is all finished.

With brain injury, there are usually expenses for past care, and expenses that are likely to be incurred in the future. These might include future medical costs, rehabilitation costs, educational costs, vocational training costs, psychiatric/psychological care costs, home-aid costs and costs for special equipment.

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When a person suffers a Traumatic Brain Injury (TBI), especially a mild TBI, the symptoms are not always readily apparent. Many of the symptoms, such as irritability, memory loss, headaches or blurred vision, are "subjective." In other words, much of our knowledge of such symptoms comes from the victim reporting them. Because young children usually have more limited communication skills, it is often more difficult to learn what they are experiencing.

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According to a recent study, golf apparently presents a significant risk of head injury, at least for children. A recent news story reports that researchers at the Medical College of Georgia found that out of 64 kids with sport-related injuries that required a neurosurgical evaluation, most had bicycle related injuries. However, the second highest incidence of head injury involved playing golf. Click on http://news.yahoo.com/news?tmpl=story&u=/nm/20050413/hl_nm/children_golf_dc_1 for more information.

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Traumatic Brain Injuries (TBIs) affect individuals and their families in almost all aspects of their lives. In order to cope, people need to have information and resources they can easily access and rely upon.

There are many organizations around the United States that attempt to fill this need. One such organization is the Brain Injury Association of America. If you are looking for a good place to start learning about resources and information pertaining to TBIs, you may wish to look at their website at http://www.biausa.org/Pages/home.html

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Group B strep is a naturally occurring bacteria that is present in the intestines and vagina of about 25% of women.

Group B strep (GBS) is a bacteria that should be routinely screened for in pregnant women. Why? Well the bacteria can infect the baby when the membranes of the amniotic sack break. This might occur during the actual labor.

If an infant is exposed to GBS then it can develope an infection that can possibly lead to meningitis and that increases the risk of brain damage and ultimately cerebral palsy.

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It may seem strange to call a Traumatic Brain Injury (TMI) "mild." However, the use of the word "mild" is merely to help categorize TBI patients in an effort to better evaluate and treat them in contrast to those with "moderate" or "severe" TBI. Mild TBI's are the most common. The following is a helpful description of "mild" TBI.

A patient with mild traumatic brain injury is a person who has had a traumatically induced physiological disruption of brain function, as manifested by a least one of the following:

1. any period of loss of consciousness;

2. any loss of memory for events immediately before or after the accident;

3. any alteration in mental state at the time of the accident (eg, feeling dazed, disoriented, or confused); and

4. focal neurological deficit(s) that may or may not be transient; but where the severity of the injury does not exceed the following:
- posttraumatic amnesia (PTA) not greater than 24 hours.
- after 30 minutes, an initial Glasgow Coma Scale (GCS) of 13-15; and
- loss of consciousness of approximately 30 minutes or less;

This definition was quoted from A Neuropsychology Homepage at http://www.tbidoc.com/index.html

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The Glascow Coma Scale is one tool used to assess the depth of coma when a person has a Traumatic Brain Injury. It is also used to make predictions about how well such a person is likely to recover.

The Center for Disease Control provides a helpful description of the Glascow Coma Scale, and explains how the three sections of the scale are used to track the condition of a patient.

The three scales are: (1) Best motor response; (2) Best Verbal Response; and (3) Eye opening. Patients are rated on particular responses within the three categories. In essence, the lower the score, the deeper the coma.

For more details regarding the Glascow Coma Scale, click on "continue reading" below.

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One of the primary expert witnesses in most cases involving Traumatic Brain Injury (TBI) is the neuropsychologist. One of their purposes is to assist in the understanding of the relationship between a brain injury and the effects of that injury. But such professionals provide much more than that.

According to the American Psychology Association, a clinical neuropsychologist is

a professional psychologist who applies principles of assessment and intervention based upon the scientific study of human behavior as it relates to normal and abnormal functioning of the central nervous system. The Clinical Neuropsychologist is a doctoral-level psychology provider of diagnostic and intervention services who has demonstrated competence in the application of such principles for human welfare following:

A. Successful completion of systematic didactic and experiential training in neuropsychology and neuroscience at a regionally accredited university;
B. Two or more years of appropriate supervised training applying neuropsychological services in a clinical setting.
C. Licensing and certification to provide psychological services to the public by laws or the state or province in which he or she practices;
D. Review by one's peers as a test of these competencies.

You may view the website of the American Psychology Association by clicking http://www.apa.org/

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Much of the focus on cerebral palsy cases is on the birth process and the prenatal time period.

But what if the cerebral palsy occurs after birth? Can it happen after birth? The answer is yes.

Two ways this can happen is trauma and meningitis.

Remember that cerebral palsy is a limitation on motor skills that is caused by damage to the brain, so in a situation where a young person has a traumatic injury to his or her brain then that can result in cerebral palsy. Car accidents, swimming accidents or bike accidents can all be the root of the problem. The brain injury can be cause by:

• Lack of oxygen -- Just like in the labor process. Lack of oxygen can kill brain cells.
• Bleeding -- Trauma to the brain may cause bleeding into the skull and that with the pressure build up in the skull can cause damage to brain cells.
• Infection -- Meningitis and infection can damage brain cells and lead to the damage and the decreased motor skills of cerebral palsy.

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Lawyers tend to focus on facts and law. Sometimes, the facts and the law are not enough. In cases involving injured children, especially children with head injuries, facts and law are most definitely not enough. Lawyers must get to know the children, their families and others close to them who have been affected by the injuries and the fallout.

Why is this important? Legal claims are intended to compensate the victim for his/her losses. The victim's lawyer must prove those losses, usually by a "preponderance of the evidence." In order to prove those losses, a lawyer must have a clear understanding of the child's life before and after the injuries. The people in the best position to provide that understanding are family, friends, teachers and other who have a history with the child.

Communications with the child, friends and family requires more than just fact gathering. It requires a lawyer to comprehend the emotional and psychological effects of the injuries and aftermath on everyone involved. Only then can a lawyer truly convey to a jury (or even to just an insurance company) the true losses arising from an injury.

Losses include medical bills, rehabilitation costs, therapy, educational costs, etc. But these are only some of the losses. The most substantial losses are the intangibles. The ones that are hard to measure. Those can be best ascertained by careful investigation into the life the child had before the tragedy, and the life the child and his family must face afterward.

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Some people believe that the law will allow recovery for severe injuries under almost any circumstances. This is not true. In fact, when a Traumatic Brain Injury (TBI) occurs as a result of an accident, a legal claim usually exists only when someone acted negligently. The burden of proof is on the injured person.

In negligence claims, the victim must prove

• that the person who caused the incident leading to the injury had a duty to the victim.


• that the other person breached that duty,


• and that the breach caused the victim's injuries and losses.

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The following information obtained from the Brain Injury Association of New Hampshire truly demonstrates the value of using, and encouraging the use of, bicycle helmets:

• Bike accidents crash-land more children in hospital
  emergency rooms than any other in hospital emergency
  rooms than any other sport.
  
  
• In fact, kids ages 5 to 14 get hurt more often often
  than bikers of any age.



• Every day,about 1,000 kids end up in emergency rooms
  with injuries from bikes.



• Riders with helmets have an 88 percent reduction in
  their risk of brain injury.



• One in eight cyclists injured has a brain injury.
• Ninety percent of bicyclists killed in 2000 reportedly
  weren't wearing helmets.



• In a national survey of children ages 8 to 12,
  nearly half (49%) reported that they would wear a helmet
  if a state or community required it.



• The estimated cost of bicycle related injuries and deaths
  for all ages is $8 billion.



• The lifetime costs to the State of New Hampshire for
  one person surviving a severe TBI can reach $4 million.


Information Sources: 1. National Safe Kids Campaign 1. National Safe Kids Campaign 2. Consumer Product Safety Commission 2. Consumer Product Safety Commission 3. Thompson, R., Rivara, F., & Thompson, D., 3. Thompson, R., Rivara, F., & Thompson, D., A Case-Control Study of the Effectiveness of A Case-Control Study of the Effectiveness of Bicycle Safety Helmets, New England Journal of Bicycle Safety Helmets, New England Journal of Medicine-May 25, 1998 Medicine-May 25, 1998 4. Bicycle Helmet Safety Institute 4. Bicycle Helmet Safety Institute 5. United States Department of Transportation's 5. United States Department of Transportation's National Highway Traffic Safety Administration National Highway Traffic Safety Administration (NHTSA) State Legislative Fact Sheet 2000 (NHTSA) State Legislative Fact Sheet 2000 6. United States Department of Transportation's 6. United States Department of Transportation's Fatality Analysis Reporting System Fatality Analysis Reporting System 7. National Institute of Neurological Disorders and Stroke 7. National Institute of Neurological Disorders and Stroke (1989, February) Interagency Head Injury Task Force Report (1989, February) Interagency Head Injury Task Force Report

Tags: Pediatric Brain Injury
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The term "traumatic brain injury" is very broad and includes a large number injuries to the brain. A helpful definition, for purposes of general understanding, can be found at waiting.com and reads as follows:

Brain Injury, Traumatic - Damage to living brain tissue caused by an external mechanical force. It is usually characterized by a period of altered consciousness ( amnesia or coma) that can be very brief (minutes) or very long (months/indefinitely). The specific disabling condition(s) may be orthopedic, visual, aural, neurologic, perceptive/cognitive, or mental/emotional in nature. The term does not include brain injuries that are caused by insufficient blood supply, toxic substances, malignancy, disease-producing organisms, congenital disorders, birth trauma or degenerative processes.

http://www.waiting.com/glossary.html

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Neuropsychiatrists are sometimes used as experts in Traumatic Brain Injury cases because they have knowledge of medicine and psychology. Injured parties and those being sued will often hire neuropsychiatrists to give opinions at trial regarding medication, physiological aspects of injuries, etc.

When the defense hires an expert, that expert often testifies contrary to the plaintiff's expert, and it becomes a battle of the experts. However, all witnesses, both lay and expert, are supposed to be unbiased or impartial. In other words, they are not supposed to have any personal or financial interest in the outcome.

Recently, a New Hampshire court judge ruled that a plaintiff's lawyer could demand that a defense neuropsychiatric expert provide copies of tax returns. The plaintiff simply wanted to demonstrate, in essence, that a substantial portion of the expert's income came from testifying for defendants. For whatever reason, the expert, rather than disclose the tax returns, opted to not testify in the case.

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In Traumatic Brain Injury (TBI) cases, a victim's brain cannot be shown to the jury. Lawyers must therefore find ways to illustrate their clients' injuries to the jury. But the rules of evidence limit what lawyers may use. In essence, the lawyer must use technology that is reliable and accepted by the scientific community. The lawyers representing the person responsible for the injury will object to the technology the victim's lawyer tries to use.

Some of the technologies used in brain injury litigation include:

Positive Emission Tomography (PET) and Single Photon
Emission Computerized Tomography (SPECT) - these
depict the body's metabolism and bloodflow
Magnetoencephalography (MEG) and Electroencephalography (EEG) - these show electrical activity
Functional Magnetic Resonance Imaging (fMRI) - these
reflect flow, volume and oxygenation of blood within
bodily tissue

Because TBI victims' lawyers must prove the existence of a brain injury and the cause of the injury, some technology to depict brain function is useful, if not necessary. Much of this technology is new, however, and it is likely to be challenged. Whether the technology will be admitted as evidence will be determined by the judge, on a case by case basis.

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• 1,500,000 Americans or more suffer a Traumatic Brain Injury (TBI) per year.
• 1,000,000 are treated and released from hospital emergency rooms after suffering a brain injury.
• TBIs cause over 50,000 deaths and 80,000 permanent impairments per year.
• 5,300,000 Americans currently suffer disabilities from brain injury.
• A TBI occurs every 21 seconds.
• TBI is the primary cause of death and disability in children and young adults.
• "Individuals with severe brain injury typically face five to 10 years of intensive rehabilitation with cumulative costs exceeding $35 billion annually."

This information was obtained from the Brain Injury Association of America website. To view this site, go to http://www.biausa.org/

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Expert witnesses are crucial in Traumatic Brain Injury (TBI) cases. Without experts, most cases would either fail or would result in insufficient compensation.

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There is nothing simple about legal claims involving Traumatic Brain Injuries (TBIs). Individuals and families seeking to recover compensation for TBIs through legal action face a dizzying combination of complicated medical and legal issues and procedures.

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Not all cases are in the United States. This one is from Austrailia. A child injured in a bike accident 10 years ago has received a verdict of 1.4 million dollars. In this case the injury was to the frontal lobe of the brain and resulted in a coma.

Read about it here: $1.4m payout for BMX injury

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