Compensation for Brain Injury

The February 2013 issue of Archives of Clinical Neuropsychology included an interesting article out of Cape Town, South Africa, wherein researchers from the University of Cape Town examined the extent to which, during the process of litigation, individuals with moderate-to-severe traumatic brain injury might malinger in their performance on neuropsychological assessment batteries.
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On January 22, 2007 I represented a resident of Trenton, New Jersey who was a passenger in a car which was hit head on by a dump truck while traveling on State Highway 68. The dump truck that hit her was unable to stop and attempted to avoid colliding with another vehicle by entering the northbound lane. While the driver was able to avoid one accident, he was unable to avoid striking the vehicle our plaintiff was in.
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Today’s New York Times (registration required) ran an article about a new brain-imaging study whose results sugest that brain-damaged people who are treated as if they are almost completely unaware may in fact hear and register what is going on around them but be unable to respond.

Some experts said the study, which appeared yesterday

I am often asked when I am hired “What is my case worth?” Although I have been representing clients with acquired brain injuries for well over 20 years, there is never a simple or easy answer to this question. Everybody is different and everybody’s case is different. What effects a traumatic brain injury has on an individual and his or her family is clearly different. While there may be many similarities, certainly no two cases are alike. The first thing to determine is what are the economic losses suffered by the person with acquired TBI and his/her family. There is no question, that in any case, economic losses, be they medical expenses or lost income will generate a higher recovery. That is why it is essential in most cases that a vocational economist and life care planner be retained. Related to this, especially when representing a client with an acquired mild traumatic brain injury is whether or not that person is back to work or back to school. Because traumatic brain injury is a silent epidemic, juries have difficulty appreciating the significance of the injury where the person is back to work doing their everyday job or back in school and obtaining the same grades that they received before the trauma. While most of my clients in this situation tell me that although they are back to work or back to school, they have to work much harder and it takes more time to comprehend what used to come easy, these are nonetheless more difficult cases.
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We know that people with disabilities, including traumatic brain injuries, will, generally speaking, earn less per year than non-impaired individuals and, just as importantly, will have a shorter work-life expectancy than their normal cohorts. Even when an injured person has returned back to work, there is still a high probability that that individual, over his or her work life, will have a shorter work life, earn less money and therefore will incur a loss in earning capacity.
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