June 16 2016

No Two Brain Injuries are Alike

 

Concussions are an increasingly hot topic because of developments in professional and amateur sports. As a result, the discussion of head injuries, and the knowledge about their consequences is everywhere. When a brain injured client comes in to see us we know that the treatment and management of these clients will be different in every case because no two brain injuries are alike. One client may have a relatively minor concussion and post-concussion syndrome while another may be bed-ridden in a semi-vegetative state.

CAM LLP lawyers have represented clients from across the head injury spectrum. To help clients and their caregivers prepare for the recovery process, we have gathered some observations about three general categories of head injury cases and what you can expect to encounter.

The “It’s only a concussion” case

This client can be anyone from a young girl who hit her head on the window in the car and can’t play volleyball anymore, to a businessman with headaches that make it impossible for him to concentrate at work. The general feeling is that these post-concussion symptoms will go away in time, but the reality is that in many cases they do not.  This type of concussion can also cause symptoms including:

  • loss of balance,
  • vertigo,
  • ringing in the ears,
  • loss of concentration, and
  • light sensitivity amongst many other symptoms.

In time, many of these victims recover, but in the meantime, they are frustrated by their reduced work capacity or in many cases a complete inability to work, at least for a while. Even in mild concussion cases, financial issues can quickly become a factor. An experienced personal injury lawyer will be ready to address the critical issue of “how the bills get paid” while you are in recovery.

The “mild to moderate” brain injury case

This category represents some of the more difficult cases because clients with this type of injury are often still making their own decisions but they are labouring under the influence of cognitive deficits that may not be immediately obvious because the client is not bed ridden.

These clients may lose their executive function, causing them difficulties in making decisions or prioritizing work. They can be irritable, and their personalities may have changed, creating challenges in interpersonal relationships, including interactions with their personal injury lawyer. This client may require more time because they are likely to make demands that may be unreasonable in the circumstances.  Patience is an important quality when dealing with a mild to moderate brain injury client.

In our experience, aggressive behaviour by legal counsel to try to “manage” a client in these cases is counterproductive and can simply lead to the client trying to find another lawyer. This may not be in the client’s best interest. Involving family members in decision making is often very useful. This way the brain injured client has someone else to remind them of the course of action agreed to and why. Making sure your personal injury lawyer has a patient and caring legal assistant also helps a lot, as they are most often the first point of contact for the client.

The “severe to very severe” brain injury case

This category shares some of the same features as the mild to moderate brain injury case, but will involve periods where the client may not be in a position to make decisions on their own.  Severe brain injury cases frequently require someone to make an application under the Adult Guardianship and Trusteeship Act, to allow for an appropriate individual to make decisions for the severely brain injured client. Alternatively, the person making the application can act for the brain injured client under the terms of an enduring power of attorney.  This type of client will usually not have regular contact with a lawyer until their brain injury heals substantially. However, their personal injury lawyer should have consistent and regular contact with their representative.  In many cases, the severely brain injured client will spend a substantial amount of time in a rehabilitation hospital, or an extended care facility. Most serious brain injuries take 2-3 years to reach maximum medical improvement. If the client is in a care facility, there may be instances where the facility fees are not covered by the provincial healthcare system and the clients’ representative will be under financial pressures to fund the cost of necessary care. An experienced personal injury lawyer will know how to help in these cases. Once again, patience and understanding are important factors in client management.  Also, the client needs a lawyer who can help the clients’ representative come up with solutions for care and to meet financial needs as the case will most likely take a significant period of time to resolve.

The client with a “very severe brain injury” in a semi-vegetative state

This client will likely need care 24/7 for the rest of their life.  Home care is preferable, but it is unrealistic to expect the family to do it without substantial assistance. The financial and emotional burdens on the family can be crushing as they struggle to meet the cost of care and make what can be very difficult decisions about institutionalizing the family member.

These families need compassionate, caring guidance in dealing with a situation that will likely never improve. They have to deal with the likelihood of reduced life expectancy, and their lawyer must ensure that any settlement can cover the costs of care and that those family members that survive without the income support they are accustomed to receiving.  These are sad cases and require experienced lawyers who know how to provide strong and consistent emotional support of the family. As in every brain injury case, any settlement should seriously consider the use of a Structured Settlement, to protect the brain injured client from misappropriation of the settlement funds. Further, with decreased life expectancy, the returns in a Structured Settlement can be expected to be very high, and are an excellent way to make sure the care requirements can be properly funded.

These are just a few examples of brain injuries that we have seen over the many years we have represented brain injured Plaintiffs.  If you or a loved one has suffered a brain injury, or other serious debilitating injury, you need strong, knowledgeable legal representation. These are not cases that should be left to an inexperienced personal injury lawyer or a general practitioner.  For a free, no obligation consultation call the personal injury lawyers at Cummings Andrews Mackay LLP at 780-428-8222.  We have the experience to help.