Brain Injuries and the Law

acb9e26d-fb00-4ec4-a56a-05604bbba884In recent news, an Iowa jury found Bedford High School negligent with freshman football player, Kacey Strough. The young man suffered severe head injury due to teammates throwing footballs at his head from a short-range distance. The school did nothing to stop the “hazing” and are now facing the largest payout by a high school in history for a head injury case: $1 million in damages and medical fees.

According to experts, a blow to the head that at first seems minor and does not result in immediate pain or other symptoms, can turn out to be a life-threatening brain injury.

There are two types of brain injury, traumatic brain injuries and acquired brain injuries:

Traumatic brain injuries include more obvious impact injuries, such as penetrative injuries (an object pierces the skull and enters the brain), coup-contrecoup contusions (an impact that causes the brain to slam into the opposite side of the skull, creating a second contusion at the second impact site), diffuse axonal injury (shaking-rotational forces cause tears in various brain structures), and concussion.

Acquired brain injuries are caused by oxygen deprivation. They include anoxia (absolute oxygen deprivation, possibly resulting in cell death; can be fatal), and hypoxic brain injury (partial oxygen deprivation, which may also result in cell death; can be fatal).

Unless there is objective evidence of brain injury on MRI or CT Scan, insurance companies may assume the individual is either faking their injuries or has pre-existing psychological problems. A brain injury attorney must first “objectify” as best as possible for their clients’ injuries. The patient’s condition is the focal point of the case and juries are very sympathetic to brain injuries that can be proved.

One thing to note, when pursuing a brain injury claim you open up your entire life’s history to examination. Grade school records, medical records from childhood, and anything else through the years that insurance companies can obtain is open game. Psychological and psychiatric records are obtainable and will be obtained.

During the recovery of a brain injury, the insurance company will try to contact you and speak to you through the adjuster. They will likely have this conversation recorded. If there is a later claim for a brain injury, they will try to use this conversation as proof that there was nothing wrong with the individual. This is nonsense since most people with traumatic brain injury can speak normally; the difficulties are often not manifested in speech.

Insurance companies may also try to look through your trash, specifically evidence of illicit drug use, use of medication or anything else they can get their hands on. Though we have a right to privacy in this country, many courts have held that there is no right to privacy of trash that is put out on the curb. Lastly, be very careful about your social media engagement. Any post-accident photos or posting contrary to your case will be used against you.

Remember that many of the difficulties associated with this type of case can be overcome and dealt with by an experienced brain injury litigation attorney. This is certainly not a case to take on alone or with a lawyer not familiar with brain injury law.

If you or a loved one has suffered a brain injury, your legal claim depends on the specific circumstances of the brain injury. Slip and fall accidents, motor vehicle accidents, intentional harm (such as a fistfight, or strangulation-induced anoxia), and other impacts usually come under the person injury or premises liability umbrella, and in some cases there may be a separate criminal action.

If you feel you may have a case, you need to contact a lawyer who has a history of winning brain injury cases. Depending on the seriousness of the injury, and the extent to which the injury has negatively impacted your life, you may be eligible for a substantial damage award.

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