Hazelton Law Group | Injury Law
866-375-8085
Hazelton Law Group | Injury Law
866-375-8085

Your Northern Minnesota Personal Injury Attorneys

Brain Injury Cases FAQ

Can I have a brain injury if I did not lose consciousness?

A: Yes. In fact, Minnesota has a statute for this. It is a very common misconception that a person cannot have a brain injury if there has not been a loss of consciousness. While it is true that most people with a significant brain injury will have suffered a loss of consciousness or a period of altered consciousness following trauma, such is not always the case. In addition, we will commonly see it reported in the emergency room or ambulance records that there was no loss of consciousness. The ambulance crew does not have the luxury, and the emergency room physicians do not have the opportunity to interview witnesses to the accident in its immediate aftermath. They are left to rely on the report of the injured person when making a determination of whether there was a loss of consciousness or altered consciousness.

The Importance Of Careful Questioning

Witnesses at the scene will often confirm either that the person had in fact lost consciousness or was otherwise displaying signs of disorientation or confusion. Very careful questioning of the injured person can also disclose that there was a loss of consciousness. For example, the last memory the injured person has before a collision might be about something that happened seconds or minutes before the collision. The very next memory might be of emergency personnel standing outside the door of the vehicle. While the injured person does not know that consciousness was lost, questioning indicates that it was and gives some insight into how long the person was unconscious. Also, a person can appear conscious and function as though fully conscious but have no memory for a specific period of time. It is as if the record button was not depressed for a period of time. This period of amnesia can also indicate altered consciousness and be instrumental in determining insult to the brain when it otherwise was not apparent.

How are attorneys paid in these kinds of cases?

A: Most personal injury claims are handled on what is known as a “contingency fee” basis. That means that you pay no attorney fees unless there is a settlement or verdict in your case. The fee is then taken from the settlement or verdict proceeds. A contingency fee of 33 1/3% is standard for vehicle collision and other standard injury cases. The contingency fees in medical malpractice and product liability cases are typically 40% to 45%. That is because those cases are extremely expensive to pursue, often difficult to prove and are very vigorously defended. With any contingency fee case, the client does remain responsible for file costs that are incurred in pursuing the claim. These typically include things such as:

  • The cost of obtaining a copy of your medical records
  • The accident report
  • Filing fees if a lawsuit is commenced
  • The cost of depositions taken during the litigation
  • Expert witness fees

How can an attorney help with a brain injury claim?

A: Unfortunately, it is all too common that there is little if any follow-up with brain injury patients once they leave the emergency room. The injured person often has little insight into the fact that they are having problems. They typically will not report any problems to the treating physician when following up for other accident-related injuries. This makes it appear that either there has been no brain injury or that if there has been a brain injury, it has healed and is not presenting an ongoing problem. An experienced brain injury attorney can assist in these claims by interviewing family and friends to determine if this is happening. If it is, then it needs to be called to the attention of the treating physician. In certain circumstances, a neuropsychologist may be consulted to determine if neuropsychological testing is warranted under the circumstances. Another way an attorney can help is by conducting extensive interviews of eyewitnesses to the trauma of those who came on the scene shortly after in order to determine if there is evidence of loss of consciousness or altered consciousness. While it is certainly true that loss of consciousness or altered consciousness is not necessary for brain injury to exist, inordinate weight is given by insurance adjusters to a notation of “no loss of consciousness” in the medical record. Evidence overcoming such an entry is critical.

How can it be determined that I have a brain injury?

A: CT scans and MRIs are helpful in determining whether there has been structural damage to the brain. The present state of technology, however, does not allow us to see everything there is to see in the brain. Even if a CT scan or MRI does show insult to the brain, the scans themselves tell us nothing about how this insult is affecting the function of the brain. It is like opening the hood to the engine compartment of the car and seeing that the engine looks like a normal car engine. Looking at the engine, however, gives no indication of how the engine functions. Special testing administered by a neuropsychologist can help determine if the brain is functioning normally cognitively. Deficits found on testing may well correlate with the areas of trauma found on the CT scans and MRIs. Recently, there have been dramatic improvements in the ability of MRIs to image insult to the brain that were not able to be seen on standard MRIs. They still do not allow the radiologist to see everything that can be seen in the brain, but they are a considerable improvement over previous technology. These MRIs are becoming more widely available and no doubt someday will be the standard in brain imaging. In addition to the foregoing, extensive interviews of people who knew or lived with the brain injured person before and after injury are an invaluable resource. These people can describe the changes they have seen in the functioning of the individual as well as the personality and emotional changes.

When should I consider hiring an attorney?

A: Immediately! An injured person does not always need the services of an attorney immediately. However, any time that your injuries are moderate to serious in nature and are, therefore, likely to leave you with some impairment on a permanent basis, as brain injuries are, I strongly advise you to seek the counsel of an experienced personal injury attorney. These injuries will have a lifelong impact on your ability to make a living. They also affect your ability to engage in routine activities of daily living and generally enjoy life. The extensive workup of the claim is necessary for you to have any hope of being adequately compensated for losses. In addition, there is usually a need for immediate investigation to secure evidence. The brain injured individual often has little or no recollection of the accident and how it occurred. Critical evidence could, therefore, be lost. Early determination of whether a brain injury may be present is critical so that this fact gets documented promptly in the medical records. Claims adjusters and jurors give inordinate weight to what is and what is not in medical records. A complaint about symptoms from a brain injury that appears in the medical records for the first time six months after the trauma will be much less likely, in the mind of the adjuster or juror, to be causally linked to the trauma even if there is a good explanation for the delay. It’s the old maxim, “If it’s not written down, it did not happen.”

Why are brain injury cases so complicated?

A: Brain injury cases are complicated for several reasons. First, the person suffering from a brain injury often has little insight into the full impact the injury is having on their life. This is because the organ that is injured, the brain, is the very organ we rely upon to assess ourselves. Additionally, the brain injured person may actually believe that they are doing quite well. They may even believe that they are having no problems with things such as memory and concentration. Meanwhile, others are reporting dramatic problems with the brain injured person. This is fairly common. One of the more common injuries to the brain occurs in the region of the frontal lobes. This area of the brain is particularly vulnerable to injury. Because of the “terrain” features of the skull surrounding the area, injury to this area of the brain can result in marked personality changes. For example, inability to control temper and emotion, inability to plan and inability to motivate oneself to action are common. These problems can exist even in the face of CT scans and MRIs that find no structural damage within the brain. Assessing and verifying these problems can be done, but they are painstaking and require considerable effort. It is easy for the brain injured client to become frustrated and impatient. This is often part of the condition.