Substantial Settlement in ‘Minor’ Head Injury Case

Published: 1:00 am Mon, September 13, 1999

By PAUL D. BOYNTON Massachusetts Lawyers Weekly

Can a seemingly minor soft-tissue head injury resulting from a low-impact car accident be transformed into a valuable closed-head injury case?A recent $730,000 settlement indicates that the answer is “yes.”Such cases demand tenacious persistence and a willingness to spend money up front on expensive neurological testing, said Douglas K. Sheff, who secured the large settlement.“It could have gone away for $100,000 except for the digging and detective work,” observed Sheff, a Boston personal injury lawyer.Following up on suspicions of a closed-head injury is usually expensive and time-consuming, but Sheff pried the sizable settlement from the defendant after obtaining medical records from a neuropsychologist substantiating his client’s subjective complaints of moodiness, impaired concentration and memory loss.“It’s no secret these cases are expensive,” Sheff said. “You have to believe in the case and have the resources because you may not be able to establish damages.”Sheff, president-elect of the Massachusetts Academy of Trial Attorneys, stressed that even though establishing a closed-head injury can be daunting, personal injury attorneys shouldn’t be easily dissuaded.“Don’t give up when your client looks and acts normally, don’t give up when the CAT-Scan and MRI come back normal,” Sheff advised. “Don’t dismiss the case away if your client is showing signs of depression or behavioral or emotional changes. That’s a reason for further inquiry.”The natural tendency is to slough off the severity of a closed head injury resulting from relatively low-impact accidents, particularly when no medical evidence supports a plaintiff’s complaints, noted Kenneth I. Kolpan of Boston.“The symptoms are easily missed in the emergency room and early on after an accident,” said Kolpan, who specializes in head injury cases. “It’s not until family and friends notice behavioral and emotional changes that it becomes more apparent.”Sheff advised keeping a keen lookout in medical records of loss of consciousness and nausea, typical early manifestations of a closed head injury.He noted that closed head injuries often occur as a result of a motor vehicle accident or slip-and-fall injury, suggesting that personal injury lawyers should always be alert for the possibility of closed-head injuries.“What do personal injury attorneys do but deal with motor vehicle and slip-and-fall cases?” Sheff remarked. “It’s a hidden, silent epidemic. According to studies, every 15 seconds in the United States people suffer from a brain injury.”The settlement was reported in the Verdicts & Settlements section in last week’s issue of Lawyers Weekly.

Sideswiped Car

On March 5, 1995, Sheff’s client was stopped in heavy traffic on Interstate 93 north near Boston when the car he was operating was allegedly sideswiped by the defendant’s vehicle.Even though the impact was relatively minor, the plaintiff nonetheless struck his head against the driver’s side window, according to Sheff.Following the accident, the plaintiff underwent surgery to release scar tissue on his shoulder. After an MRI revealed a bulging disc in his neck, he was treated in physical therapy, Sheff said.“We didn’t know of his closed head injury when he first came in,” he recalled.But about two years after the accident, the plaintiff’s treating neurologist referred the plaintiff to a psychologist for depression, which first tipped off Sheff that his client may have a closed head injury.

On The Trail

“The psychological examination was so long after the accident. That struck me as unusual,” Sheff remarked.Robert K. Astor of Springfield, who earlier this year settled a closed head injury case for $150,000, agreed that complaints over an extended period of time are generally more indicative of a closed head injury.“If the complaints only last two or three months, I don’t normally go to the trouble of sending a client to a neuropsychologist,” Astor said.The psychologist who examined Sheff’s client diagnosed a mild traumatic brain injury.Sheff said this finding compelled him to thoroughly interview the plaintiff’s wife and some of his friends, which revealed changes in the plaintiff’s emotions and behavior before and after the accident, according to Sheff.Kolpan said testimony of lay witnesses of subtle changes in a plaintiff — leaving a stove burner on, getting lost while driving, inability to match words with thoughts — can signal the need for a neuropsychological examination “to tease out the cognitive deficits that aren’t readily apparent to attorneys and decisionmakers [like juries, judges or arbitrators].”Kolpan said lawyers must thoroughly investigate their clients’ pre-accident condition.“You must dig deeply to make sure it’s a new condition. You should talk to fellow employees, teachers, family and friends,” said Kolpan.Sheff commented that lawyers “need to be like old-fashioned practitioners who took the time to get to know their clients and asked the right questions.”Astor said his client complained of sporadic headaches, lack of concentration, and occasional dizziness, none of which existed before the accident.“The most important thing a lawyer can do is listen to his or her client,” Astor said.To further build a case for closed head injury, attorneys should “try to get transcripts from schools, SAT or LSAT results, whatever you can get to use as guide,” Sheff noted. “Another indication is if they did complex work before the accident, but they can’t do it after.”Also, continuing subjective complaints noted in medical records of treating physicians, chiropractors or physical therapists help substantiate a closed head injury, Astor pointed out.“Some medical history lends credibility to a closed head injury claim, rather than it coming out of left field,” he said.

Testing Costly

A neuropsychological examination is costly because it can take up to a day, or even days, to complete, Sheff said.The examination tests visual aptitude, language skills, memory, IQ, and other cognitive abilities, Sheff said.“They’re thorough. It’s hard to feign these tests, so they eliminate the possibility of malingering,” he contended.And while an overall score may suggest normal intelligence, Sheff stressed that it’s imperative to determine if an injured person exhibits cognitive deficits in certain areas.“You need to look for cluster of scores, especially for [cognitive abilities associated with] the same area of the brain. Look for disparity of scores, not the overall score,” he stressed.He noted that after the accident his client continued to obtain high grades in graduate school, remained on his job, and adopted a child.But the examination revealed problems such as lack of concentration, word-forming difficulties, reclusiveness and memory loss, Sheff said.Astor maintained that a neuropsychologist “can substantially bolster a case. You face the hurdle of trying to prove a closed head injury claim beyond vague complaints that are difficult to substantiate. You’ve got to be willing to take a chance and make expenditures.”

Armed And Ready

Once the testing was finished, Sheff submitted a demand brochure to the defendant’s insurer, then filed suit.Strategically, a closed head injury claim will likely carry more weight if the evidence is gathered before a complaint is filed, he said.Sheff entered mediation armed with the results of the neuropsychological exam, demonstrative devices like a brain model, medical illustrations, blow-ups of medical reports, a biomechanical report recreating the accident, and medical bills of about $40,000, roughly $10,000 of which was associated with the brain injury.Three tough mediation sessions later, Sheff walked away with the $730,000 settlement.Defendants battle closed head injury claims on numerous fronts, such as attacking the credentials and findings of the neuropsychologist, or even the validity of neuropsychology as a science, according to Kolpan.“Neuropsychologists are psychologists by training with additional training in neurology. They’re not medical doctors,” Kolpan said. “There’s a school of defense which challenges neuropsychology as not being a science.”Raymond J. Kenney Jr., a Boston defense attorney, said even though he believes “neuropsychology seems to be a reasonably legitimate area of science, defendants [nonetheless] can bring in their own expert evidence to show that the impact involved couldn’t have resulted in the claimed injury. A jury is inclined to question whether a closed head injury results from a minor trauma.”Also, defense attorneys should “know enough medicine to cross-examine the plaintiffs’ medical expert to call into question his or her conclusions, or [to show] that the test was not administered properly,” Kenney said.Astor admitted that “there’s so much open to interpretation. I’m surprised more defense counsel don’t hire their own neuropsychologists.”Defendants also try to discredit plaintiffs’ claims by simply pointing to negative CAT Scans or MRIs, Sheff noted.He said one type of closed head injury occurs when the membranes of brain cells are disrupted, which is commonly referred to as “shearing.”“This occurs at a microscopic level. A MRI or CAT Scan may be normal, but that’s because if you shear off cells, they can disappear. Most of the time, you can’t see it on films,” Sheff said.Another type of brain injury results when it is deprived of oxygen, which, over time, can be demonstrated on CAT Scans or MRIs by abnormally darkened brain tissue, he said.“Don’t give up if the tests taken a month after an accident are negative. Your client may still have symptoms, so wait to the end of medical testing before trying to settle the case,” he said.