• "Minor" Brain Injuries - The "Soft Tissue" Injury
  • August 26, 2003 | Author: Michael R. Kelley
  • Law Firm: McNees Wallace & Nurick LLC - Harrisburg Office
  • One of your truck drivers is involved in an accident with another vehicle. Fortunately, the accident is not serious and the driver of the other vehicle, although a little groggy immediately following the accident, appears to be just "shaken up." Your driver gives a brief statement to the investigating police officer, fills out an accident report for the company, and continues on to complete his delivery.

    One week shy of two years later, your company receives a summons and complaint from the driver of the vehicle, who has sued your truck driver and your company just before the two-year statute of limitations has run. You review the report of the accident, which notes that the accident was not serious, that the driver of the car did not appear to be seriously hurt, and was just taken to the hospital for overnight observation.

    When you review the complaint, however, you discover that the driver of the vehicle now claims that as a result of the accident, he had a loss of consciousness at the scene, and, since the accident, has suffered from memory deficits, difficulty in concentrating, headaches, and physical symptoms including stiffness in his back and neck.

    Along with claims of violations of the hours-of-service regulations, perhaps the fastest growing trucking accident-related claim involves an alleged loss of cognitive function, or what is commonly referred to as a "minor brain injury." Claims alleging "minor brain injuries" are on the rise for several important reasons:

    • Physicians are doing a better job of diagnosing minor brain injuries;

    • an increase in sedentary, white-collar jobs has lessened the significance of physical injuries in work loss claims, but increased the significance of claims of cognitive dysfunction; and

    • minor brain injuries are a potentially lucrative claim for plaintiffs and their lawyers, and, like "soft tissue" injuries, are difficult to verify or dispute with objective medical testing.

    What are the Common Signs of a Minor Brain Injury?

    • Loss of consciousness of one minute to one hour following the accident

    • After regaining consciousness, the victim appears confused, disoriented, slurs her speech, makes inappropriate comments

    • The victim has no memory of the accident

    • Several days to several weeks after the accident, the victim suffers from short-term memory deficits

    • Several days to several weeks after the accident, the victim complains of inability to concentrate at work

    • The victim reports recurrent mild to severe headaches

    • The victim complains of neck and upper back stiffness

    How to Defend Against Claims of Minor Brain Injuries

    Because objective testing, such as CT scans and MRIs, are frequently inconclusive in diagnosing a minor brain injury, claims of minor brain injury can be very difficult to defend. There are, however, steps which one can take to defend the claims. These steps include:

    • Documentation of loss of consciousness. Oftentimes, your driver will be the first person to observe an accident victim. Train your drivers to observe accident victims as much as possible, and to note in writing whether they observed any loss of consciousness, disorientation or confusion on the part of the accident victim. You should consider modifying your accident report form to specifically request that your driver provide this information. This is extremely important information because in order for a physician to diagnose a patient as having a minor brain injury, the patient must have suffered some loss of consciousness. Many times the patient is conscious by the time emergency personnel arrive, but claims a loss of consciousness immediately following the accident. Your driver may be in the best position to observe whether such loss of consciousness actually occurred.

    • Obtain baseline information on the claimant. Once an accident victim makes a claim of cognitive dysfunction, an important step is to determine whether there is "baseline" of the plaintiff's cognitive function prior to the accident. The "baseline" information shows the level of cognitive ability of the claimant prior to the accident. You should obtain all records regarding any specific cognitive testing that the plaintiff has had in the past, educational records which may shed light on the claimant's past level of cognitive function, employment records, and any physical and mental health records relating to the claimant's past history.

    • Neurological evaluation. With the "baseline" information as a history, a good neurologist or neuropsychologist can perform a number of established, objective tests to determine the current level of cognitive function. She can then compare the "baseline" information with the objective cognitive testing and offer an opinion as to whether the accident in which your driver was involved caused any decrease in cognitive function.

    Conclusion

    Here at the start of the 21st century there are many opportunities and challenges facing the trucking industry. Hours of service requirements are a constant topic of conversation. The federal safety regulations are more and more frequently being used by plaintiffs lawyers to support allegations of negligence and claims for punitive damages. Brain injury claims are also likely to be seen more and more in accident litigation. By educating yourself, your company, and your drivers about these claims, you will give your company the opportunity for a successful defense.