By J. Thomas Anderson
The cumulative and compounding nature of trauma events is well documented. Previous exposure to trauma signals a greater risk of post traumatic stress disorder (PTSD) from subsequent trauma. Nevertheless, the defense bar may attempt to attribute your client's brain damage and/or PTSD to a prior wound or insult and thus not compensable in your case. Have none of it. The persistent effect, the chronicity if you will, of traumatic events to the brain and their relation to the rise of brain damage and/or PTSD symptoms following a subsequent aggravation is strongly established.
Consider the man who died of a heart attack seven months after a mild traumatic brain injury (TBI) with a Glasgow Coma Scale (GCS) of 14, where 13-15 indicates mild brain injury. Gross inspection of his brain at his autopsy showed no abnormalities. However, microscopic analysis showed evidence of brain damage: capillary hemorrhages and severed nerve fibers without hemorrhages -- lesions which could not be detected by MRI or CT scans. This man went back to work as an appraiser, but died after demonstrating diminished cognitive performance. His traumatic brain injuries were only mild and invisible to most instruments, only detectible on autopsy, but not feigned and certainly permanent. There is a strong correlation between TBI and subsequent heart failure, even where there was no previous history of myocardial dysfunction. Thus, the seemingly mild TBI may have been the ultimate cause of death.
Research going back to 1956 shows that mild TBI in the form of microscopic lesions, capillary hemorrhages, and severing of nerve fibers without hemorrhage develop in seventy-five percent (75%) of head injuries. Thus, even a mild injury may cause permanent anatomic change which may have very subtle, but dire, results. Even the slightest brain injury may lead to dangerous brain atrophy. In fact, two mild brain injuries may cumulate to cause moderate to severe TBI consequences. Thus the expression arose in the neuropsychologist community: One plus one equals seven meaning two relatively minor bumps on the head can add up to a frightening and dangerous injury.
We now know that brain injury is far more prevalent than previously thought, recognized, or reported. Though a significant public health problem, even well trained trauma experts miss fifty-six percent (56%) of brain damage that is wheeled into the emergency room. That means if your client goes to the emergency room with a traumatic brain injury, there's less than half a chance the trauma doctor will even be conscious of your client's injuries. In fact, most emergency rooms don't even come equipped with machines that could detect most brain injuries. On top of that, many brain injuries are the result of chemical cascades that may not manifest until months later.
Rear-end collisions are double strikes: 1 + 1 = 7
For example, if your client was hit from behind and then her airbag exploded in her face, she suffered two impacts. Likewise, if your client was hit from behind and then her car hit the car in front of her, she suffered two impacts to her brain.
The brain is the softest organ in the human body. It holds our emotions and can be cut with a butter knife. The inside of the skull is not smooth, but rather jagged. Also, keep in mind that many rear-end impacts result in what is called a coup/contrecoup injury to the brain. The brain, being much softer than the skull, gets slammed against the rough bony ridges of the inside forehead. This often results in damage to the frontal lobe.
Use preexisting brain damage to your client's advantage.
Suppose your client does have a prior brain injury, drug habit, or psychiatric disorder. Turn this to your advantage. If your client already had difficulties coping with living due to some unfortunate combination of these conditions, superimpose those coping problems, increased impulsivity, and lack of awareness secondary to the new brain injury and your client may suffer significantly more dysfunction than a person without those preexisting conditions.
Ask the Defense Medical Examiner:
Q: Doctor, if a person has a pre-existing psychiatric problem, doesn't it make sense that he won't have the proper coping skills and reactions that a person without his psychiatric problem might have?
Q: So, for example, if you superimpose traumatic brain injury on that pre-existing psychiatric problem that may make the person irritable, irrational, impulsive, or difficult, he may have even less ability to control his behavior, correct?
Q: Doctor, if a person suffers from chronic pain and then suffers from a traumatic brain injury, isn't it true that giving him narcotics for the pain can actually make the cognitive symptoms of the brain injury more dramatic?
Q: Doctor, isn't it true that the Center for Disease Control has identified the following symptoms of mild TBI:
Memory problems
Concentration problems
Emotional control problems
Headache
Fatigue
Irritability
Dizziness
Blurred vision
Seizures
And also possibly:
General malaise
Excessive fatigue
Depression
Reduced alcohol tolerance
Q: Doctor, isn't it true that difficulty sleeping can exacerbate the symptoms of traumatic brain injury?
Q: Doctor, isn't it true that chronic pain can exacerbate the symptoms of traumatic brain injury?
Q: Doctor, isn't it true that depression can exacerbate the symptoms of traumatic brain injury?
And so forth
Since the risk of brain trauma and permanent damage increases in cases where the brain was previously damaged, we must not permit defendants to put off current compounded injuries on prior wounds. Those are part and parcel of the current problem. Our clients often have pre-existing problems: prior injuries and/or illnesses; chronic disabilities and/or pains; cohort drug dependencies; possibly street drug dependencies when prescription drugs are not available to cover the pain. Our clients don't grow up in bubble towns. Just because they are not perfect and may not have much of a normal life, doesn't mean the defendant can come along and destroy their last chance and just walk away.
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