Trial Magazine

A prospective client calls and says that his back was injured in a car crash. He has back pain, but the MRI results are essentially negative and don’t show disks impinging on the nerves or spinal cord. But he is feeling pain in the lower part of his body and believes it was caused by the crash. As the attorney, what should you do? During case intake and follow-up, thorough investigation is crucial to ensure that your client’s injuries are fully captured and understood.

Listen to the Client

Many times, I have seen a client complain of intense pain for which no one seems to have a diagnosis, much less a treatment. But you can help sort through this with in-depth intake questionnaires and by really listening to your client.

To listen for the right information, you must ask the right questions. You need to fully understand the mechanics of the incident and injuries and the client’s complaints.

Mechanics of the incident and the injuries. Gather as much detail as possible about the event that caused your client’s injuries, what he or she experienced during the incident, and what happened immediately afterward.

For example, here are questions to ask a client who was in a car crash that caused a suspected traumatic brain injury (TBI):

• What kind of car were you in? What was the year, make, and model?
• Where were you sitting in the car?
• What kind of clothes were you wearing? Were you wearing glasses?
• Were you wearing headphones or ear buds?
• Were you wearing the seatbelt or shoulder harness?
• What do you recall happening?
• What happened to your body in the crash?
• Where did the other car hit your car?
• Describe the impact—the sounds, the feeling of your body, the feeling in your ears, the feeling in your head.
• Did you hear or feel an explosion?
• What parts of the inside of your car did you hit?
• What parts of your body hit your car?
• Did your head hit anything? What part of your head or face was injured or affected?
• Did you end up with a laceration (cut), bruise, or bump anywhere on your head or other parts of your body? Do you have photos of that?
• Was there a period of time that you do not recall about this incident? From when to when?
• After the injury, were you delirious, dizzy, dazed, confused, or just not feeling right for a time? For how long? Who can back you up on this?
• Did you go to the ER immediately after the crash? How did you get there?
• If you did not go right away, why not? Why did you wait so long to get treatment?
• Who was with you when you did go get treatment? (Call and find out whether this person overheard your client tell the ER personnel that he or she hit his or her head and lost consciousness or had altered consciousness.)
• Did they send you for a CT scan of your head at the hospital ER?
• Did they tell you at the hospital that the CT scan was normal (negative; no bleed on the brain) or abnormal (positive; bleed on the brain)?
• How did you feel in the first week after you left the hospital?

Recording the client’s complaints. Next, collect specific information about the client’s pain and how it affects his or her life. Have the client fill out a set of charts that provide a snapshot of the pain—where on the body the client is experiencing pain (head, face, neck, arms, and more); the type of pain; its severity and frequency; and how the pain impacts day-to-day activities, work, and recreation.¹

Use another questionnaire to evaluate in-depth the client’s pain and impairment from head to toe.² It should evaluate pain in many different criteria or aspects including location, frequency, intensity, type, radiation, and what triggers it. This is critical to properly assess pain. The questionnaire also should ask about sleep deprivation and interruption, which is often overlooked but affects every aspect of the life of someone with chronic pain. This includes disposition, depression, stamina, ability to concentrate, and memory.³ In turn, all of these things affect relationships and the ability to enjoy life.⁴

Questions related to TBI. Use a separate checklist for TBI symptoms. My firm uses one that combines information gathered from the National Institutes of Health website and other sources.⁵ The TBI checklist should be sent to the injured person and his or her significant other or a close family member or friend. Because the injured person was most likely so dazed and confused that he or she does not know or recall what happened at the time of the injury, the ER notes and other records following a TBI are notoriously inaccurate.

Eventually, you will want your expert to examine the client but not during the initial intake—first you are gathering facts to try to determine whether the client has a TBI. The client also may be in denial and may not want to admit that his or her memory, concentration, or organizational (executive) functions are impaired.

The checklist has categories of signs and symptoms. First are the signs and symptoms displayed within the first 48 hours, second within the first six months, and third at the two-year mark. The signs and symptoms displayed in the first 48 hours are loss of consciousness (or alteration of consciousness, which includes feeling dazed or confused); nausea; vomiting; tasting metal; photo (light) sensitivity; phono (sound) sensitivity; and, of course, headache.

“Loss of consciousness” is a misnomer and at best ambiguous. While the question typically is: “Did you lose consciousness?,” it should be: “Did you lose any sensory abilities or were you dazed, confused, disoriented, or dizzy following this crash and for how long?” That is known as alteration of consciousness, and it is relevant to determining whether the prospective client has suffered a TBI.⁶ Whether someone lost consciousness is not a good question because consciousness is not an on/off switch and is not required for someone to have suffered a TBI.⁷

Follow up after the initial intake. Most of the recovery from a TBI will occur in the first six months after the injury.⁸ For that reason, interview your client again at the six-month mark. This is a follow-up to the initial intake. Ask about all the symptoms your client has experienced in the last six months. Have those symptoms improved or stayed the same? Are there any new signs or symptoms? Look for worsening headaches, seizures, and cognitive issues regarding memory and concentration. What are the complaints the client has now? These may include issues with memory, temperament, or emotions; inability to organize their life (executive functions); feeling dazed; depression; personality changes; feeling withdrawn and unwilling to socialize; and sleep deprivation.

In my experience, most neurologists will testify that someone who has a TBI is at maximum medical improvement (MMI, or as good as he or she will ever get) at the two-year mark. Therefore, the client should last see the physician and neuropsychologist who will write reports and eventually testify when your client is at the two-year mark. A person has to be at MMI for a physician to determine whether and to what extent the injury is permanent.

If the plaintiff is not at MMI at the time of the final examination, he or she can be getting better, and the physician expert cannot testify to what the plaintiff will be like in the future. If the signs or symptoms are improving, the defense can argue that the day might come when the plaintiff will be “100% normal.” But if the plaintiff is at MMI, by definition, that’s as good as he or she is going to get. If a physician testifies that the client’s current condition is permanent, then we know what the plaintiff will be like in 10, 20, or 30 years.

In federal court, this can present timing issues. If you have a shortened statute of limitations, such as a one-year statute of limitations in cruise passenger cases, you file well before the plaintiff is at MMI in a TBI case. If the court assigns a trial date within months after filing a complaint, the trial date may be less than a year away. If the time of trial or the time that expert reports are due is less than two years from the date of the injury, the expert cannot opine that the plaintiff is at MMI. You may need to request a later trial date or move to stay the case until the plaintiff is at MMI.

Review Medical Records With a Critical Eye

These injuries typically are “invisible.” Medical records usually do not indicate directly that the patient has a TBI. The medical records are a jumble of information collected at different times (when your client is feeling better as a result of more sleep the night before or a good meal or medication) and by different people who have different qualifications.

It is critical to carefully read the records or have someone read them. You can have a well-trained paralegal review them or retain a forensic nurse or expert. Your retained physician expert or the treating physician always will review them too, but you may want to separately retain a nurse and provide your expert with the nurse’s report. Note any conflicting histories, complaints, physical exam results, or diagnoses.

Then send the conflicting or incomplete records to the client for more information. The client usually knows the story. For example, an office note from a treating physician may say that your client, on a certain day months after the injury and surgery, has no complaints of pain. Before you jump to conclusions, send that note to the client and ask about it. She may tell you that the visit to that doctor was a week after an epidural pain injection. Then you can cover this with that doctor, with your medical experts, and in opening and closing to show that this note reflected just one snapshot of time and not the client’s overall pain and injury.

Be proactive. You cannot be a passive notetaker. Research the medicine to understand what you are looking for and possible suspected diagnoses that may have been missed. Also, identify and try to resolve any conflicts in the records.

For example, in a case involving a maître d’ on a cruise ship, an aluminum cabinet on wheels designed to warm and carry trays of bread rolled with the movement of the ship, fell, and hit the maître d’ in the middle of his back. The maître d’ was in severe pain at the scene, but his pain seemed to subside slightly. An MRI of his spine was almost negative, but he had chronic leg and back pain.

Several months after the injury, he was having episodes of electric shock-like pain from the chest down. The pain in each episode was so intense that the client could not talk and lost control of bodily functions. The frequency of the intense pain episodes increased to more than 30 a day. Most doctors missed the diagnosis. The true diagnosis was an upper motor neuron injury called central pain syndrome.⁹ This is like chronic regional pain syndrome, but instead of a limb being injured, the brain or spinal cord is injured. The pain is out of proportion to the initial injury because the pain is neuropathic—it is caused by a miscommunication between one part of the brain and the other; in this case, the thalamus in the center of the brain and the cortex on the outer part of the brain.¹⁰

The defense lawyer and retained experts argued that if the plaintiff were paralyzed, which no one said he was, he would have major atrophy, which he did not. They kept repeating this, and we did not have an explanation even from our expert.

I studied this online and found a tutorial on YouTube to prepare medical students for the neurology part of their certification exam. Graphics in the tutorial—which I made into exhibits at trial—explained that injuries to the spinal cord (part of the central nervous system), as opposed to the nerve roots (part of the peripheral nervous system), are considered upper motor neuron injuries, and these injuries cause an increase in tone and bulk of the legs. Lower motor neuron injuries cause severe atrophy. Once I understood that, I realized the defense was being completely disingenuous and could then delve into this with my medical experts.

Go to your experts. Talk to the treating physician or medical expert after you have pressed the client for details and for explanations of the seeming inconsistencies in the medical records. Give the treating physician or medical expert copies of the “bad” records, and go over them. Tell them the other side of the story.

When our clients are suffering from pain that has not been diagnosed or treated properly, you can make a difference. Above all else, conduct a rigorous medical records review—this will help guide you and the retained experts and treating physicians to the right answers and ensure that these injuries are not ignored.

John H. (Jack) Hickey is the founder of Hickey Law Firm in Miami and can be reached at hickey@hickeylawfirm.com.

Notes

1. The full sample charts are on file with the author.
2. The sample questionnaire is on file with the author.
3. Stephanie Watson & Kristeen Cherney, The Effects of Sleep Deprivation on Your Body, Healthline, May 15, 2020, https://www.healthline.com/health/sleep-deprivation/effects-on-body.
4. Roger Ratcliff & Hans P.A. Van Dongen, Sleep Deprivation Affects Multiple Distinct Cognitive Processes, 16 Psychonomic Bulletin & Rev. 742 (2009).
5. Christine Baggini, A Checklist for Brain Injury Problems & Symptoms, Brain Injury Ass’n of Va., https://www.biav.net/wp-content/uploads/2017/06/Checklist_for_BI_symptoms.pdf; Gerard Gioia & Micky Collins, Heads Up Clinicians: Acute Concussion Evaluation, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/headsup/pdfs/providers/ace-a.pdf.
6. T.M. Srinivasan, Healing Altered States of Consciousness, 8 Int’l J. of Yoga 87 (2015). The Military Acute Concussion Evaluation (MACE) 2, for example, has a section for deterioration of consciousness and a section for loss of consciousness. Nat’l Academies of Sciences, Engineering, & Medicine, Evaluation of the Disability Determination Process for Traumatic Brain Injury in Veterans (Nat’l Academies Press 2019). Find the evaluation forms at https://www.ncbi.nlm.nih.gov/books/NBK542592/.
7. Am. Speech-Language-Hearing Ass’n, Traumatic Brain Injury in Adults, https://www.asha.org/practice-portal/clinical-topics/traumatic-brain-injury-in-adults/.
8. Thomas Novack & Tamara Bushnik, Understanding TBI: The Recovery Process, BrainLine, Mar. 23, 2010, https://tinyurl.com/y4k9khwu.
9. Nat’l Inst. of Neurological Disorders and Stroke, Central Pain Syndrome Information Page, https://tinyurl.com/y5rw8jre; Nat’l Org. for Rare Disorders, Central Pain Syndrome, https://rarediseases.org/rare-diseases/central-pain-syndrome/.
10. Id.