Keys to success when litigating traumatic brain injury case

Winning strategies for litigating traumatic brain injury claims include understanding the injury and its consequences, consulting a neuropsychologist, and evaluating future impacts on the patient, Toronto critical injury lawyer John McLeish writes in a paper entitled Handling the Mild to Severe Brain Injury Case.

 “Proving a traumatic brain injury and the economic consequences to the brain-injured individual can be a daunting task – even more so if there is no positive neuro-radiological evidence,” writes McLeish, who presented the paper at a recent Canadian Bar Association event in Fredericton, N.B.

 “We plaintiff’s lawyers find ourselves in court litigating the mild or moderate brain injury cases much more often than the severe brain injury cases. This is because in the mild and moderate brain injury cases, the defence lawyers feel the chances are slimmer that the plaintiff will be able to prove his or her case. And unless plaintiff’s lawyers know what steps to take to develop and try a brain injury case, defence counsel’s expectation will prove to be accurate.”

Several difficulties

There are several difficulties plaintiff’s counsel faces in representing an individual who has suffered a traumatic brain injury, writes McLeish, partner with McLeish Orlando LLP.

“One of those difficulties is that most brain injuries, unlike other injuries such as a broken arm or an amputated leg, are invisible to the naked eye,” he writes. “X-rays, MRIs, and CT scans can detect fractures, hemorrhages, swelling, and certain kinds of tissue damage, but they do not always detect traumatic brain injury. This is because traumatic brain injury, especially in its milder forms, often involves subtle traumas to the brain that cause chemical and physical changes to brain tissues. These changes often cannot be found with standard imaging procedure.”

Quality of life

Along with having a neuropsychologist assess the client, it’s also important to be armed with a knowledge of what the patient’s future income, care costs and quality of life look like post-injury, writes McLeish. A detailed understanding of the client’s past and present behaviour is another crucial component, he adds.

These factors allow for a comprehensive case presentation, writes McLeish, and if properly presented, point to a successful outcome for both the lawyer and the client.