Brain Injury Lawyer

The International Brain Research Foundation will host The Fifth Year Anniversary Celebration of Excellence in Brain Research and Treatment Thursday February 25, 2010 at 7:00 PM. This year’s celebration is held in honor of The Honorable Joseph Crowley, United States Representative, Seventh District, New York - in recognition of his valuable works and outstanding support for wounded warriors.

Additionally, this year’s honorary chair is The Honorable Bill Pascrell Jr., United States Representative, Eighth District, New Jersey.

The event will be held at The Penn Club, 30 W. 44th Street, New York, New York. For additional information, please contact Megan Johnson at 732-494-7600, or visit the IBRF’s website at  www.ibrfinc.org.

Last week, HBO presented a 30-minute special on concussions featuring Chris Nowinski's concussion research program. The program, part of HBO's ongoing series Real Sports, details controversial aspects of professional sports few of us every get to learn about. The special showed the National Football League's denial of the severe effects sports related concussions have on players. Additionally, the story mentioned that the NFL was selectively using defense-based findings to support their view, which HBO documented in 2007 with the NFL physician saying there was no evidence of damage in any study.

A number of years ago, the Brain Injury Association of America retained the Gallop Group to conduct a poll to gather information regarding the public’s awareness of traumatic brain injury.  One of the things learned from the polling results was that the public viewed the term “head injury” as being less serious than the term “traumatic brain injury.”
 
A recent study published in the journal Pediatrics confirmed that perception. Carol A. DeMatteo, M.S.c and her colleagues at McMaster University in Hamilton, Canada, conducted a study, the goal of which was to examine the clinical correlation of the concussion diagnosis and to identify the factors that lead to the use of this term in a regional pediatric center.
 
According to the abstract, the researchers collected data respectively from 434 children with traumatic brain injury who were admitted to a Canadian childrens hospital.  The researchers found that children with mild traumatic brain injuries have an increased frequency of receiving the concussion label, although the label may also be applied to children with more-severe injuries.  The study found the clinicians may use the concussion label because it is less alarming to parents then the term mild brain injury with the intent of implying that the injury is transient with no significant long-term health consequences.
 
In the study, the doctors followed children who had been given a diagnosis of either concussion or traumatic brain injury.  The study found that in the days following their injuries, those with a diagnosis of concussion were one and a half times as likely to be discharged from the hospital as those with a “mild tbi” diagnosis - even though there was significant overlap between the two groups in terms of the severity of their head injuries.  There was also a two and a half times greater likelihood that the children diagnosed with “concussion” would go back to school early as well.
 
Dr. DeMatteo, in an article published in the Los Angeles Times was quoted as stating “These children (the ones with a concussion diagnosis) may be sent back to school or allowed to return to activities sooner, and maybe sooner than they should.  This puts them at greater risk for a second injury, poor school performance, and wondering what is wrong with them.”

I read an interesting article recently in which Niki Popyer, a 16-year old resident of Marlboro, New Jersey, joined former players from the National Football League and asked Congress to develop concussion management guidelines after she was forced to give up basketball because she suffered multiple concussions. The bill would also establish a grant program to states to come up with ways to prevent, diagnose and treat sports-related concussions in schools.

You can read the full article online here.

On prior blog postings, I have discussed the issue of third-party observers during neuropsychological testing.  As you are aware from reading my prior posts, most neuropsychologists object to any third-party observations.  The question then becomes whether this is because third-party observations will truly invalidate the testing data or whether defense forensic neuropsychologists don’t want to be cross-examined about the administration of their testing.
 
On this issue, I recently read an interesting article which represents the perfect example of why neuropsychological examinations should be videotaped. 
 
The case involves the criminal prosecution of Daniel Plata who sustained brain damage as a result of birth trauma.  In March 1995, Daniel Plata and his accomplices were involved in an armed robbery and Daniel was charged with the murder of the store clerk.  Daniel Plata’s murder was captured on videotape and played before the jury.  A guilty verdict was a foregone conclusion.  Daniel Plata was convicted and sentenced to execution by lethal injection.  Following the United States Supreme Court’s decision in Atkins v. Virginia (2002), a decision handed down six years after Daniel Plata was put on death row, the United States Supreme Court ruled that “executions of mentally retarded criminals are cruel and unusual.” 
 
Plata’s attorney then moved to set aside the death penalty asserting that Plata fit the criteria established by the Atkins court.  His attorney hired Antonin Llorente, a neuropsychologist who had designed intelligence tests and was a noted Spanish speaker, which is important because it would allow him to test Mr. Plata in Spanish.  After five hours of testing, Dr. Llorente determined that Plata’s IQ score was 65, a score that would put him in a mentally retarded category.
 
Texas prosecutors then hired Dr. George Denkowski who had been the chief psychologist at the Fort Worth State School, a 35-bed facility for people with all ranges of mental retardation.  Dr. Denkowski had testified in 29 prior death penalty cases, two-thirds of such appeals in Texas.  In the 29 cases, he had found defendants retarded only eight times.  According to the newspaper report, Dr. Denkowski “had garnered and almost doctored death status among defense attorneys.  Between 2003 and 2009, Harris County Texas paid him approximately $300,000.
 
Dr. Denkowski, who did not speak Spanish, interviewed the defendant and then administered IQ tests in English.  A detailed description of the testing procedure can be found in the attached newspaper article from the Texas Observer.
 
Fortunately for defendant Plata, the evaluation was video recorded.  Defendant’s counsel retained Dr. Jack Fletcher, a nationally renowned neuropsychologist who had served on the President’s Commission on Excellence in Special Education.  Dr. Fletcher viewed the videotape and concluded that Dr. Denkowski’s methods appeared to be “driven to the old scores outside the range of mental retardation.”
 
After a hearing before the trial court, the Judge ruled that defendant Plata was “a person with mild retardation who should be removed from death row.”  More significantly for our purposes, the trial court denounced Dr. Denkowski’s methodology writing that Dr. Denkowski’s testimony, “must be disregarded due to fatal errors.”  He found that “It is not generally accepted practice within the field of psychological assessment to obtain an IQ score, declare it invalid and then estimate an IQ score with numbers.”
 
On January 18, 2008, the Texas Court of Criminal Appeals agreed and commuted defendant’s death sentence to life imprisonment.  He is presently being housed in a unit with other mentally retarded prisoners.
 
What is clear is that had this neuropsychological evaluation not been videotaped, Mr. Plata in all likelihood would have been executed.

The Brain Injury Association of New Jersey will host its 2010 Annual Gala on Tuesday March 9, 2010 at the Hanover Marriott in Whippany, New Jersey. The Gala will celebrate the Brain Injury Association of New Jersey’s 25 years of service and dedication to the brain injury community and will honor individuals who have made significant contributions to advancing the quality of life in New Jersey throughout the past 25 years.

The event will honor Roger Del Mauro, President and CEO of Saint Barnabas Healthcare Systems, and Anthony Kuczinski, President and CEO of Munich American Re-Insurance. Rebecca Quick, co-anchor of CNBC’s signature morning program Squawk Box, will serve as the Honorary Chairperson and Mistress of Ceremonies.

For additional information on the event and the honorees, please visit the Brain Injury Association of New Jersey’s website.

The United States Department of Veterans Affairs has released guidelines for the management of concussions and mild traumatic brain injuries. The guidelines outline the critical decision points in the management of concussions and mild traumatic brain Injuries, and provide readers with a clear and comprehensive understanding of the recommendations which incorporate current information and practices for practitioners throughout the Department of Defense and VA Health Care systems. The guidelines are intended to improve patient outcomes and local management of patients suffering from concussions or brain injuries. You can access the guidelines online here.

The New York Times reported Sunday that after months of research and many debates, the National Football League has agreed to support research which states that concussions sustained during play have lasting and devastating effects on players. Greg Aiello, league spokesman, agreed that research proves that concussions can lead to long-term problems.

The NFL’s change in opinion came after months of hearings before the House Judiciary Committee, in which the league’s current treatment of players with brain injuries was compared to that of the tobacco industry’s concern regarding consumers. Additionally, the N.F.L. has accepted the resignations of the co-chairmen of its concussion committee and has made major changes to policies overseeing concussion management. For example, players now must be cleared by brain-injury experts unaffiliated with the team, and cannot return to a game or practice in which they have shown any significant sign of concussion.

This is a great step in the right direction for the recognition and treatment of players with head injuries. You can read more on this story online here.

Though I've discussed several times in the past the link between the NFL and traumatic brain injuries, in a recent New York Times article, a deceased professional hockey player has been found to have had brain damage associated with repeated head trauma. This is the first time hockey has been associated with health risks like those associated with boxers and football players.

Reggie Fleming, a defenseman in the National Hockey League from 1959 to 1974, passed away in July at the age of 73 and was the first hockey player known to have chronic traumatic encephalopathy (CTE). CTE is a neurodegenerative disease known to cause cognitive decline, behavioral abnormalities and ultimately dementia.

Last month the NHL agreed to form a committee to study the issue of concussions in players, and a recommendation for new rules designed to cut down on hits that resulted in concussions was expected before the end of the season. You can read the full story online here.

I am pleased to announce that Stark & Stark has launched an additional firm website that is dedicated to providing information for those who have been seriously injured. The new site provides articles on updates to laws impacting the field of personal injury, video blogs offering helpful tips and practice specific resource guides.

In addition to the new Stark & Stark website, the firm has also has redesigned it's website in an effort to provide visitors with easier access to our attorneys and information on the many services we provide. The new site features updates on our active involvement in community organizations, an option to sign up for industry specific newsletters, and links to all of the various blogs provided by Stark & Stark.