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Brain Injury

Question

My two best friends were in a car accident. The passenger had a head injury. He looks okay but his personality is totally different. He used to be a nice guy. Now he is acting like a jerk. He is suing the driver - our mutual friend. This whole thing seems out of control. What's going on?

Answer

Head injury is not a simple issue - and you owe it to your friend to understand what is happening from his point of view. While our firm has experience in actual head injury cases, please bear in mind that I will be generalizing and not referring to the facts of any specific cases. Remember also that the experience is not always the same for each person. Our brains are complicated organs. If you are to be a true friend, you must try to find out everything you can about head injury and its effect on people - and you should try to convince others around you to educate themselves as well. This person is going to need all of the help, love and understanding that his friends can give him. This will be one of the most difficult tasks that you have ever taken on, but not nearly as difficult as that facing your friend. The first hurdle is to try to understand what is happening to your friend.

Let's forget for a moment who is responsible for your friend's injuries and talk about the injuries and their impact.

There are, of course, a wide range of head injury situations. Some include disfiguring injuries and/or obvious severe physical/motor/coordination reactions. However, you have described a friend who wasn't left with any outward (physically) visible injury. Yet he is "different".

Remember that different parts of the brain control different parts of our behaviour and thinking. In addition to the injuries to flesh, organs and bones, it is not uncommon that a person who is involved in a serious motor vehicle accident may also have a blow to his head. This blow results in the brain rapidly accelerating inside the skull and becoming bruised or suffering small cuts or lesions in one or more areas of the brain. The inside of the skull (unlike the outside) is not smooth. Normally, of course, the brain inside the skull will never "grate" or bang against the inside. However, when you experience the rapid deceleration of a vehicle hitting a wall or another vehicle, or rapid acceleration from a "rear-ender", it is a different matter. Regrettably, a seat belt is often not sufficient protection against this type of injury.

Your friend has probably suffered such an injury and may have spent weeks or months in the hospital, some of it in an unconscious state.

When he finally makes if through the medical procedures and has dealt with his other physical injuries (perhaps by attending rehabilitation clinics to assist with relearning how to use parts of his body that had been severely injured) he is sent home. His parents, you and his other friends, who were probably very attentive to him at the hospital and are still feeling protective, but you are noticing the harsh reality of the early stages of recovery for a head injured person. He may have a "short fuse". He may "tell people off". He may have trouble remembering things. He may be far too uninhibited and say things that he never would have said prior to the accident - things which injure people's feelings and make them wonder why they bother feeling sorry for him. He may behave - as you said - like "a jerk". He may brag, complain, insult people, inappropriately touch people, make off-colour jokes, or go into unexplained rages where he upsets furniture, yells at people, attempts to hurt himself, wishes aloud that he was dead, and collapses into a heap of exhaustion and depression.

Your friend has sustained a serious head injury in a car accident. The accident was not his fault. He was a passenger, wearing a seat-belt. To understand - from a lawyer's point of view - what he is to be compensated for, one has to have a full understanding of what problems he is going to have both over the short term and the longer term.

He is in an emotional agony. He is trying to cope with his physical injuries, and to heal. At the same time, he is overloaded with emotional, behavioural and coping problems, problems that he does not understand and that the vast majority of people around him (including parents, siblings and friends as well as teachers, coaches and acquaintances) do not understand. His behaviour and ability to manage day to day activities may have been altered - some for the short term and some, perhaps, for the rest of his life.

Over time, your friend's behaviour may drive people away from him. Because they don't understand what is happening - and we all fear and avoid what we don't understand - friends no longer want to associate with him. Some have tried to explain to him that his behaviour is unacceptable but he has not improved and they are angry. He is "not the same person" as the friend they had prior to the accident.

The 'repair' process takes many months. Some things will improve; some may not. Depending upon which areas of the brain have been injured, he may always have a different personality from that which he had before the accident. That does not mean that he has a "better" personality or a "worse" personality. He may have some different personality traits - not "different" in the sense of "odd", just different from those he used to have. Some friends say that it is more like meeting a new person, a stranger. I have heard one head injured person say - at a meeting of head injured persons: "my friends tell me that I am not the same person I was before the accident. They ask me why I can't be the same as before. I pray every night that I could be, but I don't know who I was before…". We will deal with that and other issues associated with his recovery, the degree to which we have observed recovery (or not) and the permanent problems that he - and you - have to deal with for the rest of his life.

He will need very significant financial help. Regrettably, insurers often do not want to pay reasonable amounts having regard to the amount required to compensate him for the fact that he may never be able to generate the income levels that he might have generated over his lifetime if he had not been injured - and he has bills to pay that were incurred as a direct result of the accident. He has sued your other friend because our system forces him to, if the vehicle insurer will not be reasonable about a fair settlement.

Expert testimony elicited by us in cases of this nature explains the reasons. The brain is a delicate organ. Different parts of the brain affect different cognitive and emotional/behavioral aspects of our "personality" (who we are). When any of those areas are injured or unnaturally stimulated, there is a resulting change in our personality and/or our ability to cope. When we incur a head injury, certain brain cells are damaged. One expert retained by us in a head injury case stated that damaged brain cells may take as long as six months to heal and repair themselves. The corollary to that is the fact that if a brain cell has not repaired itself in six months, it dies. Therefore, after six months, a person with a brain injury is in a "what you see is what you've got" situation. From that point on, any improvement to this individual's impairment, according to the advice that we received, is really not organic improvement in the brain itself but is a process of educating oneself to "cope" with the deficiencies that one is now going to have on an ongoing basis. Often, with a great deal of hard work, a brain-injured person can learn to function, in many respects, very well - by recognizing their deficiencies and learning to work with them and around them.

For example, people with mild to severe (as opposed to very severe) head injury may find themselves still very outspoken, too spontaneous and uninhibited in their behaviour. They "learn" to delay their responses in order to cope with this problem. They "count to ten" more often than you and I. As well, they often are able to perform one function very well. If you add a second function to be performed at the same time, they may cope, but perhaps a little less well. If you add a third function, they may have to stop performing one of the other functions in order to accommodate the third function. It takes a very benevolent and understanding employer to hire persons who may encounter these problems. First of all, virtually no one understands the difficulty that the head-injured person is having and they therefore view him or her as "stupid" when that is, by no means, the case.

Brain injured persons may have short-term or long-term (or both) memory difficulties. Often, it is essential for a head-injured person not just to carry a calendar and reminder book in which they write every aspect of their daily schedule, but they must remember to use it frequently. Also, they may find that they go to the refrigerator for milk in the morning for their cereal and then return the milk to a cupboard rather than to the refrigerator. They may be able to turn the stove on and cook their supper but simply forget to turn the stove off. They may telephone a friend to discuss something very specific and, once the friend is on the line, forget why they called them. Indeed, they may call them three times for the same reason, forgetting that they had called them the first and second time. They may drive to the end of the driveway on their way to the store for groceries and when they reach the end of the driveway, be confused about which way to turn. Obviously, not everyone has the same degree of difficulty with these functions and some may only have one or two rather than all of them.

The point we have been trying to make about head injuries is that the general public must educate themselves, in fairness to persons with head injuries, to understand that person is working extremely hard each day to adapt to his injury and overcome the stigma that the general population attaches to him: being "lazy", "stupid" or "not trying" in daily activity and relationships with other people. After going through the enormous emotional trauma of losing many of their friends because of their "changed" personalities and injuring many of their other relationships which they desperately want to repair, they must, at the same time, continually learn to "cope" with small every day functions that you and I (who have not suffered head injuries) take for granted.

Regrettably, some head-injured persons lose what the rest of us refer to as "insight". They do not acknowledge their own shortcomings, at least initially. This makes the road back much longer for them. They tend not to do well in budgeting which, of its nature, is long-term planning. There is a tendency to spend all of one's money in one week that really was to have been budgeted for a full month's living expenses.

Persons with head injuries have great difficulty obtaining employment. As mentioned earlier, there is great ignorance amongst the general population about head injury and how it impacts on the victim. As well, in today's society when everyone is expected to work independently and "run things through" as quickly and efficiently as possible in order to maximize production, the tolerance level for assisting persons who don't fit that mould is very low. Generally speaking, employers do not hire brain injured persons - not because they are not good people but because they simply don't want to bother investing the extra time that it takes to accommodate that person into their work force when, after all, there are ten other people looking for the same job who do not have to be accommodated in any way. In addition, it is often the case that brain injured persons do not receive criticism (even constructive criticism) well and employers and managers are in the business of giving constructive criticism. Unfortunately, employers and managers are not very tolerant of "snappy" responses. In the result, brain injured persons may have no difficulty obtaining jobs but they have great difficulty retaining jobs. Therefore, they go from job to job with unemployment in between and generally must work at minimum wage, unless they are among the very fortunate ones who find employers who recognize the abilities of the person and are prepared to tolerate and assist with problems when they arise.

As you can see, therefore, your friend has a problem for life. Prior to the accident, he may have been an average to excellent student who may have obtained employment in a lucrative trade or profession, met a future wife and had a family whom he could love and who would return his love. All of those things now are much less likely. He may now never have the kind of personal relationships that he had hoped for. He may now never achieve the goals that he had in life prior to the accident. He has lost a great deal of potential.

When one has losses that are caused by someone else's actions, the law says that the individual who has suffered is entitled to be compensated in a manner that would put that person in the position in which he was prior to the damage. That is the theory. The reality, of course, is much more stark. Your friend can never be put back to the position he was in prior to this accident. Nevertheless, the law, as imperfect as it is in cases of this sort, attempts to compensate the individual with money damages. He will never reach the earning capacity he had prior to his accident. He may never hold a job without the presence of a job coach. He will need money to supplement the small income that he can now earn and he will probably need to pay for coaching and counselling assistance for the rest of his life. Unfortunately, he may not have the ability to manage money; therefore, he will need to pay a money manager or have his money placed in an annuity and paid to him in small amounts on a periodic basis for the rest of his life. Now, we enter upon a discussion of just what the injured person is entitled to and who must pay.

There is a very long list of "losses" that your head injured friend could provide, if asked: His memory is impaired. He knows that he is too spontaneous and often acts inappropriately from other person's points of view. He knows he has "changed" in personality. He feels guilty. He has been suicidal. He is quick to anger. He has trouble planning. He has difficulty coping with more than two tasks at a time or in a series. He has difficulty budgeting and planning. He experiences emotional "crashes" and depression. Damaged brain cells that did not recover within the six-month period have died and will never recover. He once had a bright and happy future, the potential to awake every day to a new day with a new opportunity to apply his talents to his advantage - the ability to know who or what he may have been; the privilege of living and working, socializing and developing loving relationships which would have blossomed throughout his lifetime; the opportunity to earn income and seek out advanced goals and opportunities into the future; the opportunity to fulfill his career path and the dignity of holding a fulfilling and long-term job. Because of his injury, he is much less able to attain any of these goals. He has lost a great number of his former friends who will never come back to him as friends. He feels constantly fatigued, has difficulty remembering the right word to describe things; he is easily distracted and suffers periods of poor concentration for extended periods of time. He has difficulty setting realistic goals. He suffers apathy, irritability, impatience and it is part of his condition that insight (the ability to recognize one's limitations) is often not present. Indeed, some psychologists have expressed the view that one must sometimes resort to removing all supports and letting such persons "fall flat on their face" or "hit bottom" in order that they recognize that they must seek and accept help. The difficulty with this "approach" is that hitting bottom may have tragic effects such as severe depression or thoughts of suicide. Your friend will have great difficulty finding that "benevolent" employer who is prepared to invest the time it takes to understand the problems your friend faces and to work with him to the mutual benefit of your friend and the employer. Holding a job is difficult enough. It is very likely that, if he is employable at all, he will have repeated and lengthy periods of unemployment.

Therefore, he must be compensated in areas such as the following: loss of opportunity to earn income in the future. This is a very significant item. A calculation must be made to produce a sum of money which, when invested, will yield the same net income to the injured person (when added to the small income that he can now earn) as he might reasonably have earned if he had not been injured; management fee: because of his impaired ability to improperly plan, it is very important that the money be invested on his behalf by a professional or through purchase of an annuity. This may require, therefore, an additional sum of money to be set aside to pay the management fee over the number of years required. Cost of future care: your friend will very likely require the services of support personnel in the form of psychologists and persons who are professionally able to assist in the work place, initially, in order to get the employee started with the employer and to assist the employee in learning the job. The need for this support will be ongoing throughout the working life of the individual and, perhaps, beyond retirement. Monies must be set aside to pay for those services. Special damages: these include out-of-pocket expenses required for the purchase of medication, prosthetic devices, back supports, computers and memory aids and the like that are required by virtue of the accident having occurred. These items must be listed, costed and replaced as required. Non-pecuniary damages: these are sometimes referred to as damages for "pain and suffering" and are designed to compensate an injured party for the "intangible" cost resulting from the injury. In this case, such things as the actual pain and discomfort inflicted by the injury, the ongoing personality deficiencies and additional hurdles placed in the way of the individual as a result of the injury that cannot otherwise be compensated for are included.

In addition to the damages indicated above, there may be other categories specific to your friend's case. There may be the necessity to increase the amount of damages by a sum equal to the income tax that will have to be paid on the income that his fund earns over the life of the investment. Obviously, damages can run into the hundreds of thousands of dollars. Indeed, if your friend had become wheel chair bound, for example, and repairs or renovations to a house had to be made to accommodate that fact, damages increase.

As you can see, it is an extremely complicated mix of calculation, specialists' opinions, negotiation and argument to arrive at a fair figure for compensation. This simply cannot be accomplished without proper legal representation for your friend.

Dealing with compensation for brain injuries is specialized. While there is a tendency to "wait and see" in many injury cases before hiring experienced legal help, it is absolutely essential to find a personal injury lawyer with experience in head injury cases as soon as possible. The lawyer will advise you about note keeping, interim insurance benefits, how to deal with insurers, how to access head injury experts and support groups, and provide a buffer between the injured person and "aggressive" insurance representatives.

muttarts law firm
Kentville, Nova Scotia, Canada
t. 902.678.2157 • f. 902.678.9455

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