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.  The study was designed to explore whether financial settlement influenced neuropsychological test performances and activities of daily living.  Thirty-one individuals out of an original group of 235 potential participants were utilized in this study.  These thirty-one litigants were tested and interviewed both during litigation in one year or more after their case had settled. 

According to the article, “results showed that neuropsychological test scores did not change from assessment during forensic proceedings to assessment after settlement.  Although some improvement was evidenced in activities of daily living, the gains were small and their clinical significance questionable.”  The authors concluded by finding that there was “no evidence that individuals with moderate-to-severe TBI, despite clear potential for secondary gain, malingered or delivered sub-optimal effort during neuropsychological evaluation taken place in the contest of litigation.”  The study can be found at Archives of Clinical Neuropsychology 28 (2013) 38-51. 

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.

As a result of the accident she sustained a traumatic brain injury, multiple fractures of her left shoulder and arm, and fractures to her right leg. My client also suffered numerous process fractures of the lumbar spine and multiple rib fractures. The case went to mediation and settled for $3.5 million. 

Doneal Bernstein v. Enviro-Sciences

The December 5, 2005 New Jersey Law Journal’s Suits & Deals section mentions a case which I recently settled for a client.

In August 2001, Enviro-Sciences Inc. was removing contaminated soil under Congregation Sons of Israel in Lakewood, caused by an oil spill the previous autumn. Shims used to keep in place a temporary column between the synagogue’s floor and ceiling became dislodged during a worship service, and the column fell, striking my client, Doneal Bernstein, a congregant. Due to his injuries, Mr. Bernstein suffers from headaches, fatigue and neck pain.

I was able to secure a settlement from Enviro-Sciences for Mr. Bernstein in the amount of $732,500.

Today’s Trenton Times reported on a settlement I just reached for a client.

I am pleased to let you know that The Children’s Place and several other companies have agreed to compensate Alexander Arce $6,600,000 for the head injury he suffered in 1997. Alexander was just six weeks old when his mother, Jennifer, and his grandmother took him shopping at The Children’s Place in Quakerbridge Mall in Lawrence Township. He was sitting in his stroller when a shelf collapsed, causing a thirty-inch tall plexi-glass sign to fall and strike him on the head, fracturing his skull and piercing the left side of his brain.

An expert architect said a poorly designed wire grid shelving system caused the collapse and resulted in the sign falling. Fortunately, Children’s Place has redesigned their shelving system to eliminate the dangerous display that caused Alex’s injury.

As a result of the incident, Alexander, who now is now nine years old and resides in Texas, has problems with reading and comprehension. He is presently in special education classes in the Humble County School District. This settlement will insure that Alex will have the monies he needs to live the best possible life.

Osborne v. Budd

This week’s New Jersey Law Journal’s Suits & Deals section mentions a case which I recently settled for a client.

On April 30, 1998 defendant Brenda Budd was traveling on Route 206 when she suddenly crossed lanes striking my client Gail Osborne’s vehicle. Ms. Osborne was taken to the emergency room, complaining of neck pain and released shortly that day. Over the next week, she began to experience problems with attention and concentration as well as balance. A CT scan taken shortly after the collision was normal. She was ultimately referred to Kessler Institute for Rehabilitation where she underwent neuropsychological testing and was diagnosed as having sustained a mild traumatic brain injury.

Following her discharge from the Kessler program, Ms. Osborne remained under the care of various specialists including a neuro-optometrist, neuro-otologist and neuropsychiatrist. The Social Security Administration found her to be totally disabled as a result of her injuries.

The defendant, Brenda Budd, and her attorney initially asserted that the collision occurred due to a defect in her vehicle’s axle. However, her insurance carrier, Liberty Mutual, got rid of the car prior to litigation so no testing could be done. Our lawsuit was instituted against Ms. Budd and a count for spoliation and punitive damages were asserted.

Trial was first commenced in the summer 2003. However, a mistrial was declared after plaintiff’s opening statement due to references to my client’s Social Security award. The case was next scheduled for trial in October 2003. After a three-week trial with the jury apparently hung, a second mistrial was declared when one of the deliberating jurors advised that she could not return for further deliberations.

The case was called for trial again on June 1, 2005 and after two days of negotiations I was able to settle the matter for $975,000.00.

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 in the journal Neurology, could also have consequences for legal cases in which parties dispute the mental state of an unresponsive patient.

You can read the Tines article here.

Also, if you want to watch the February 8, 2005 NBC Nightly News with Brian Williams report on this encouraging study, you can click here.

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. Continue Reading What is my case worth?

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. Continue Reading Evaluating the economic impact of traumatic brain injuries