a comprehensive guide for brain injury victims in california · a comprehensive guide for brain...

A COMPREHENSIVE GUIDEFOR BRAIN INJURY VICTIMS

IN CALIFORNIA

B O O K P R O V I D E D B Y W I L S H I R E L A W F I R ME - B O O K P R O V I D E D B Y W I L S H I R E L A W F I R M

DISCLAIMER

This guide is not intended to provide medical advice, professional diagnosis or opinion, or services to you or anyone else. The general information contained within is, at best, of a general nature, and should not be used as a substitute for the advice of a medical professional.

If you believe you have a medical emergency, you should consult a physician or other healthcare provider. Please DO NOT rely on information in this guide in place of seeking medical or professional advice. It is highly recommended that you review the information in this publication with your physician or healthcare provider and have him or her guide you on how to apply it for your individual case.

Medical information is always changing. Therefore, DO NOT treat the information contained in this publication as current, complete, or exhaustive, and also DO NOT rely on this information to suggest a course of treatment for you or anyone else.

This guide is also not intended to provide legal advice. You must not rely on the information contained in this publication as an alternative to legal advice from an attorney or other legal professional. If you need advice on specific legal problems, consult an attorney or other legal professional. DO NOT delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information contained in this publication.

A C O M P R E H E N S I V E G U I D E F O R B R A I N I N J U R Y V I C T I M S I N C A L I F O R N I A

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TABLE OF CONTENTS

02 Introduction

03 TBI Causes and Consequences

04 Types of Brain Injury

05 Red Flags Indicating Possible Brain Injury

07 TBI Symptoms

09 Rancho Los Amigos Levels of Cognitive Functioning Scale

10 TBI and Behavior

12 Independent Medical Examinations (IMEs) and Your Rights

15 Provider Specialists

17 Glossary of Terms

19 Resources



If you or someone you love has suffered a traumatic brain injury (TBI), the following information may be of use to you. However, be advised that this guide is not a solution in itself, but it will hopefully point you in the right direction.

The first priority for a newly injured person is to identify their symptoms. This can be difficult when it comes to brain injuries since many

symptoms associated with TBI often do not make themselves immediately apparent. We’ve included in this publication a list of all TBI symptoms, including the ones that can develop later.

After the accident, it is important that you make the right decisions concerning your treatment. Even a single misstep can cause you to waste time and money, and possibly worsen your condition by causing significant delays in your treatment. On pages 10-11, we’ve provided vital information on the steps you should take to get the treatment you need and take charge of your health.

If you’re planning to file a claim, there’s a very good chance that the insurance carrier will challenge it through a procedure called “Independent Medical Examination” (IME), which consists of an examination and possibly tests conducted by a qualifying professional in the area. Since this professional may be biased in favor of the carrier, it is absolutely vital that you know your rights. Read pages 12-14 to learn about these rights in preparation for your case.

Finally, depending on the extent of your injury, your recovery may involve multiple specialists in a variety of fields. We’ve provided a list of reliable specialists on pages 15-16 who can provide you with the holistic treatment you need to get your life back together.

We hope that you find the resources contained in this guide to be helpful.

INTRODUCTION



02

Each year, an estimated 1.4 million traumatic brain injuries (TBIs) occur in the United States. Of these, 50,000 people die, 235,000 are hospitalized, and 1.1 million are treated and released from emergency departments. Annually, more than 80,000 individuals are left with life-long disabilities from TBI. Over 5.3 million Americans are living today with a TBI-related disability.

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TBI CAUSES AND CONSEQUENCES


POPULATIONS AT RISK

• TBI is the leading cause of death and disability among children and young adults with the highest rate between the ages of 15-24.

• Males are 1.5 times as likely to incur a TBI as females.• The highest TBI-related hospitalization and death rates occurred

among individuals 75 years and older.

LEADING CAUSES OF TBI

• Falls – 28%• Motor vehicle accidents – 20%• Struck by or against object – 19%• Assaults – 11%• Other – 13%• Unknown – 9%

COST OF TBI

• Lifetime costs to treat someone with TBI are estimated to be from $600,000 to $1.8 million.

• Indirect annual costs have been calculated at over $33 billion.• The total annual cost for TBI-related injuries in the US is $60 billion.• The Federal government spends less than $3 per brain-injured

person on TBI research and services per year.


Penetrating Brain Injury:A tearing of the brain from a skull fracture or gunshot wound. Causes the rupture of large blood vessels with bleeding into the brain and subarachnoid space. Penetrating brain injuries also allow bacteria to enter the brain and can result in infections such as encephalitis and meningitis.

Contusion:A visible bruising of the brain due to trauma or blood leaking from blood vessels.

Hematoma:Brain damage resulting from leaking blood collecting in a confined area of the brain or skull. A hematoma can be subdural, epidural or intracerebral.

Concussion:A mild blow that can cause shearing of brain cells at a level undetected by CT scans or MRI’s.

Anoxia/Hypoxia:Brain cell death resulting from brain cells receiving no oxygen (Anoxia), or not enough oxygen (Hypoxia).

Diffuse Axonal Injury (DAI):A shearing of cell connections due to rapid acceleration-deceleration motion of the brain during trauma. Results in global damage.

Coup-Contrecoup Injuries:At least two injury sites from one blow caused by the brain bouncing back and forth against the skull.

TYPES OF BRAIN INJURY



There are 1.5 million traumatic brain injuries every year with 800,000 of these being mild traumatic brain injury (MTBI).

Many of these brain injuries go undiagnosed. The result of this can be increased costs and result in loss of productivity, both at home and work.

Identifying a mild to moderate brain injury can be challenging if other diagnoses, such as orthopedic injuries, are involved.

The following is an overview of some of the indicators that should be considered:

RED FLAGS INDICATINGPOSSIBLE BRAIN INJURY


REPORTS SENSITIVITY TO:

• Light• Noise• Touch• Crowds• Busy environments• Movement• Heights

INCIDENT HISTORY:

• Blow to the head• Fall• Violent shaking of the head• Concussive force• Loss of consciousness• Any alteration in mental state

at time of accident• Exposure to toxin• Heart failure• Spinal cord injury• Electric shock• Multiple orthopedic injuries• Seizures• Near drowning

Note:

CT scans are most often used in the emergency room to rule out a bleed in the brain. However, a negative CT scan does not rule out brain damage. MRI, fMRI, SPECT and PET scans might also be considered, as well as a thorough neuropsychological examination.


REPORTS CHANGES IN:

• Vision• Taste• Smell• Muscle strength• Ability to concentrate• Memory• Reading• Auditory comprehension• Paying attention• Fears• Safety• Judgment• Decision making• Initiation and execution of a task• Planning• Speed of processing• Temperament• Sleep• Eating• Sexual drive• Social isolation/involvement• Quality of, or ability, to work• Behavior (avoidance)

RED FLAGS INDICATINGPOSSIBLE BRAIN INJURY (CONTINUED)


COMPLAINTS OF:

• Dizziness• Poor balance• Nausea• Tiring easily• Ringing in ears• Recurrent headaches• Motion sickness• Sensitivity to touch• Depression• Anxiety• Increased irritability • Sleep disturbances• Disorientation and confusion• “Stop-stare” episodes (seizures)


Early SymptomsPHYSICAL:

• Loss of consciousness (not always present)• Neck pain• Headache• Lightheadedness, dizziness• Nausea• Fatigue, lethargy• Loss of balance• Lack of coordination• Difficulty breathing, especially on exertion• Slurred speech• Numbness, tingling• Agitation, loss of control

COGNITIVE:

• Disorientation• Confusion• Short term memory loss• Aphasia, or impairment of ability to put words to thoughts• Slowness in processing what people are saying to you

VISION AND HEARING:

• Blurred or double vision• Trouble focusing• Nystagmus, or uncontrollable, repetitive eye movement• Sensitivity to light• Tinnitus, or ringing in ears• Cracking, popping• Sensitivity to noise

TBI SYMPTOMS



Later Symptoms

• Problems with memory• Inability to multi-task• Easily distracted• Difficulty organizing• Difficulty thinking• Rigid thinking, obsessiveness• Difficulty reading• Difficulty with numbers• Poor judgment• Difficulty exercising, breathing• Difficulties with socializing• Impatience, irritability• Restlessness• Impulsiveness• Anger• Problems with sleep• Neck, spinal stiffness• Sensitivity to certain colors• Spatial difficulties• Sexual dysfunction• Depression• Anxiety, panic attacks• Appetite changes

TBI SYMPTOMS (CONTINUED)



The Rancho Los Amigos Scale is useful when evaluating a patient in the initial period following a brain injury. Levels are based on observations of the patient’s responses to their surroundings and provide insight into progress during the recovery and rehabilitation process.

Level I – No response. Patient does not respond to external stimuli and appears asleep.

Level II – Generalized response. Patient reacts to external stimuli in nonspecific and inconsistent manner with limited responses.

Level III – Localized response. Patient responds specifically and inconsistently with delays to stimuli, but may follow simple commands for motor action.

Level IV – Confused, agitated response. Patient exhibits incoherent or inappropriate behaviors, has no short-term recall and attention is short and nonselective.

Level V – Confused, inappropriate, non-agitated response. Patient gives random, fragmented responses to complex or unstructured stimuli. Simple commands are followed consistently, memory and selective attention are impaired and new information is not retained.

Level VI – Confused, appropriate response. Patient gives context appropriate, goal-directed responses and is dependent upon external input for direction. There is carry-over for relearned tasks, but not new tasks, and recent memory problems persist.

Level VII – Automatic, appropriate response. Patient behaves appropriately in familiar settings, performs daily routines automatically and shows carry-over for new learning at lower than normal rates. Patient initiates social interactions, but judgment remains impaired.

Level VIII – Purposeful, appropriate response. Patient is oriented and responses to the environment, but abstract reasoning abilities are decreased compared to level before the injury.

RANCHO LOS AMIGOS LEVELS OFCOGNITIVE FUNCTIONING SCALE



Maladaptive behavior, as an associated consequence of traumatic brain injury, often represents a significant barrier to rehabilitation and maximum outcome. Behavioral disorders can be a normal phase of recovery, but if they continue beyond the acute stage, and begin to form the long-term destructive patterns of interaction with others, systematic behavioral intervention is required.

Basic Principles

Behavior analysis focuses on a person’s behavior (as opposed to thoughts and feelings) and the environmental influences

that precede and follow the behavior. These components of a person’s behavior are the antecedent (A), behavior (B) and consequences (C); the A-B-C’s of behavior.

Antecedents are everything that occurs before the behavior and are, for the most part, under staff and caregiver control. Tone of voice, body language, therapeutic demands and the physical setting are some of the variables that can be adjusted to decrease the likelihood of a behavioral episode. Internal antecedents such as fatigue, sensory sensitivity, seizures, etc. should also be evaluated.

Consequences are what occur after the behaviors that make the behaviors less likely, or more likely, to occur. Reinforcers increase, and punishers decrease, the future occurrence of the behavior. It is recommended that reinforcement programs be attempted first because they teach people “what to do” and are generally more effective for long-term behavioral stability.

Behavior Guidelines

The environmental conditions surrounding people with TBI can have a significant impact on behavior. Organizing the setting and planning the approach to the person can increase opportunities for successful learning and decrease behavioral problems.Allow time for rest – people with TBI can be extremely fatigued, which can be a strong antecedent to a behavioral episode. However, do not let it be used as an escape from compliance.

TBI AND BEHAVIOR



Keep the environment simple – people with TBI are easily overstimulated so distractions should be kept to a minimum.

Keep instructions simple – prompting should be kept as concrete as possible. Use non-verbal cues, such as modeling and gesturing if the person has difficulty processing auditory information.

Give feedback and set goals – self-monitoring skills can be diminished following TBI, so provide frequent feedback and set goals to help the person understand how and why they are doing a task.

Be calm and redirect – remaining calm can help reduce agitation by demonstrating control, creative a non-threatening environment and not inadvertently reinforcing a problem behavior.

Provide choices – this can help the person feel an element of freedom and control over his or her environment. However, use “limited” choices so there is no opportunity to say “no” or for the person to feel overwhelmed.

Decrease chances of failure – try to keep the success rate above 80%. This ensures the person feels both successful and challenged.

Vary activities – alternate activities to maintain interest. Interspersing easy tasks with more difficult ones is also helpful.

Overplan – be prepared with enough activities so that you can adjust tasks to suit daily fluctuations in the person’s functioning.

Task analyze – try dividing tasks into smaller parts, each of which can be treated as a complete task. Activities are easier to accomplish one step at a time.

TBI AND BEHAVIOR (CONTINUED)



The guidelines below regarding Independent Medical Examinations are provided to protect you from being taken advantage of in this process, which can be veryoverwhelming. Your insurance carrier may hire doctors or other professionals to examine you and advise them as to your need for benefits. Despite the term “Independent”, these professionals work on behalf of your carrier and may try to minimize the severity of your injuries. Your insurance carrier may then limit or discontinue your benefits on the basis of their report.

In this process, you have certain rights. These are spelled out below. It is important to be assertive in insisting on these rights to safeguard your recovery!

When plaintiff receives a demand for a physical examination he or she has 20 days after the service of the demand to serve their response. Pursuant to C.C.P. §2032.230, plaintiff has three options:

1. Agreeing to the request;2. Agreeing as modified to the request; or3. Refusing to submit to the demanded physical examination for reasons

specified in the response.

If plaintiff refuses to submit to the physical examination, then the response mustspecify the reasons. The most common objections are the:

• date, time and location of the IME;• IME is not being performed by a licensed physician or other appropriate

licensed healthcare practitioner;• scope of IME is outside the “condition in controversy” and/or• IME includes painful, protracted or intrusive tests.

Plaintiff is not obligated to file a protective order as it will be defendant’s burden to bring a motion to compel the independent medical examination. See Weil and Brown, Civil Procedure Before Trial (TRG 2012) 8:1542.1 and C.C.P. §2032.250. However, if plaintiff does not serve a timely response then all objections will be waived. See C.C.P. §2032.240(a).

More likely than not, plaintiff counsel is going to allow the plaintiff to submit to the independent medical examination. If so, then there are a few things plaintiff counsel should be aware of.

INDEPENDENT MEDICAL EXAMINATIONS (IMEs) AND YOUR RIGHTS



1. Plaintiff Counsel May be Present during the Examination

Pursuant to C.C.P. §2032.510(a), plaintiff counsel must be permitted to observe and record a physical examination of their client. Counsel may designate a third person as the observer, provided the representative’s authority to so act is in writing and signed by the attorney. C.C.P. §2032.510(c).

The court has no discretion to exclude counsel form any portion of the examination. See Munoz v. Superior Court (1972) 26 CA3d, 643,645-646. This is to assure that the emanation is restricted to the scope ordered by the court and to prevent improper questioning by the IME doctor. See Sharff v. Superior Court (1955) 44 C2d 508, 510.

2. Examination May be Recorded

Plaintiff counsel is also entitled to record stenographically or by audio (but not video) technology “any words spoken to or by the examiner during any phase of the examination.” C.C.P. §2032.510(a) This assures an objective record of what transpired and avoids unseemly dispute at trial between the attorney and the examining physician. See Weil and Brown, Civil Procedure Before Trial (TRG 2012) citing Munoz v. Superior Court (1972) 26 CA3d 643, 645-646.

3. Others Present at the Examination

The presence of anyone other than the plaintiff’s counsel and a court reporter lies within the sound discretion of the court. Thus, for example the plaintiff cannot insist on having his or her personal physician present. Whether such presence is allowed is discretionary, not a matter of right. See Long v. Huser (1975) 52 CA3d 490, 493. However, a court would probably be quite lenient if a parent or spouse or adult child of the plaintiff was present during the examination.

4. Questioning of Plaintiff is Limited

The IME statute mentions only a “physical examination.” Nothing is said about the right to question the plaintiff and there is no real case law as to the permissible scope of questions for the IME doctor to ask. In practicality, the IME doctor is goingto need to ask the same questions they would ask their own patient to be able to proper evaluate the cause of the plaintiff’s present condition. It is also understood that an examining doctor may ask plaintiff their medical history. According to California Civil Discovery Practice (CEB 4th Ed.

INDEPENDENT MEDICAL EXAMINATIONS (IMEs) AND YOUR RIGHTS (CONTINUED)



2012) §1051, the plaintiff should be cooperative and be prepared to give:

• A general statement of how the accident or injury occurred;• A concise chronological history of the treatment to date;• A description of the injuries;• A complete statement of the present complaints.

However, an IME doctor may not cross-examine the plaintiff regarding liability issues (e.g., the color of the traffic light), inquire into areas outside the scope of the medication examination (e.g., ob/gyn questions are not pertinent in an orthopedic exam) or ask questions that the examinee has already answered (questions answered in a deposition). See California Civil Discovery Practice (CEB 4th Ed. 2012) §10.50 citing Golfland Entertainment Centers v. Superior Court (2003) 108 CA4th 739, 746.

The easiest way for plaintiff counsel to protect against inappropriate questioning by exercising is by being present and recording the examination.

5. Other Rights of the Plaintiff

Though not delineated in the Code of Civil Procedure or discussed in any of the discovery treatises, plaintiff has other rights that are so fundamental, that they shouldn’t need to be listed here. Yet, due to some of the horror stories I have heard and read about regarding less than reputable IME doctors, I feel that they need to be laid out.

• Plaintiffs have the right to be examined in an office that is clean, dust free, sanitized, and suitable for medical evaluation.

• Plaintiffs have the right to be evaluated in a medical office or facility, which is in a safe and professional location of town.

• Plaintiffs have the right to be treated and examined with respect.• Plaintiffs have the right to request an ambulance should an injury occur

during the IME caused by the IME physician.• Plaintiffs have the right to be examined by a physician who speaks and

understands English.• Plaintiffs have the right to refuse contact with any physician who is not

clean and presentable, smells, has not washed his hands, or proceeds with the examination in a rough, painful or unexpected way.

If any of the above occurs, plaintiff should conclude the examination and seek the protection of the court.

INDEPENDENT MEDICAL EXAMINATIONS (IMEs) AND YOUR RIGHTS (CONTINUED)



PROVIDER SPECIALISTS


Neurologist, Neurosurgeon (M.D.) Physicians trained in disorders of the nervous system and brain.

Neuropsychologist (Ph.D.)Psychologists trained in evaluation and diagnosis of cognitive impairment and emotional problems. May offer specialized treatment for these impairments and for the emotional symptoms that often accompany brain injury.

Clinical Psychologist (Ph.D.)Usually called in to help patients cope with emotions or control behavior, or to help the family deal with different aspects of the recovery process.

Social Worker (MSW, LCSW) Provides psychological and social follow-up essential for full recovery.

Mental Health Counselor (MHC) Trained in counseling for emotional problems.


Psychiatrist (M.D.)Physicians who often prescribe medications to help assist people in dealing with intense emotions or behavior.

Chiropractor (D.C.)Trained in spinal adjustments to relieve pain. May specialize in treatment for the neck injuries that often accompany brain injuries.

Physical Therapist (P.T.)Key figure in returning physical ability to debilitated patients. May also be called in for common problems like neck or back pain.

Otolaryngologist (ENT) (M.D.) Trained in hearing and balance disorders.

Ophthalmologist (M.D.) Trained in disease of the eye.

Behavioral Optometrist (O.D.) Trained in visual disturbances caused by brain injury.

Audiologist (AuD.) Trained in hearing and balance disorders.

Occupational Medicine (M.D.) Help patients return to work as well as deal with daily activities.

PROVIDER SPECIALISTS (CONTINUED)



Agnosia: Failure to recognize familiar objects.

Agraphia: Inability to express thoughts in writing.

Alexia: Inability to read.

Aneurysm: A balloon-like deformity in the wall of a blood vessel.

Anomia: Inability to recall names of objects.

Anosmia: Loss of the sense of smell.

Anterograde Amnesia: Inability to remember ongoing events.

Aphasia (receptive): Loss of ability to understand language.

Aphasia (expressive): Loss of ability to formulate language.

Apraxia: Inability to carry out purposeful movement.

Asterognosia: Inability to recognize objects by touch.

Ataxia: Difficulty with muscle coordination.

ADL: Activities of Daily Living.

Clonus: Rhythmic jerks following quick stretch of a muscle.

Cognition: Process of knowing or perceiving.

Confabulation: Verbalizations with no basis in reality.

Contracture: Decreased range of motion due to tissue shortening.

Convergence: Movement of eyes inward to focus on closer object.

Cortical Blindness: Loss of vision due to visual cortex lesion.

Diplopia: Seeing two images of a single object; double vision.

GLOSSARY OF TERMS



Dysarthria: Difficulty in speaking due to muscle weakness.

Dysmetria: Inability to stop a movement at the desired point.

Dysphagia: Swallowing disorder.

Echolalic: Imitation of sounds or words without comprehension.

Hemiplegia: Paralysis of one side of the body.

Hemiparesis: Weakness of one side of the body.

Kinesthesia: Sensory awareness of body parts as they move.

Lability: Drastic changes in emotions without apparent reason.

Nystagmus: Involuntary movement of the eyeballs.

Perseveration: Repeating a word or phrase insistently or redundantly.

Proprioception: Sensory awareness of the position of body parts.

Shunt: Device to divert excess fluid away from the brain.

Spasticity: Involuntary increase in muscle tone causing resistance.

Vestibular System: Mechanism within the ear that detects head movement.

Visual Field Defect: Not seeing objects in specific viewing regions.

GLOSSARY OF TERMS (CONTINUED)



In California State

Brain Injury Association of California http://biacal.org

Physiatrists in California

http://www.vitals.com/locations/physiatrists/ca

Traumatic Brain Injury Services of California (TBISCA)

http://www.bcftbi.org/

San Diego Brain Injury Foundation

http://sdbif.org/

Brain Injury Center of Ventura County

http://www.braininjurycenter.org/

Brain Injury Coalition

http://www.braininjurycoalition.info/

Jodi House Brain Injury Support Center

http://jodihouse.org/

Head Trauma Support Project

http://www.headtraumasacramento.org/

Brain Injury Network of the Bay Area

http://www.binba.org/

RESOURCES



Easter Seals Disability Services

http://www.myeasterseals.org/

Services for Brain Injury

http://sbicares.org/

Brain Trauma Foundation

http://www.braintrauma.org/

National Resources

Brain Injury Association of America

http://www.biausa.org/

Brain Line

http://www.brainline.org/

Brain Trauma Foundation

https://www.braintrauma.org/

Centers for Disease Control & Injury Prevention (CDC)

http://cdc.gov/injury

National Institutes of Health – NIH

https://www.nih.gov/

National Institute of Neurological Disorders & Stroke, NINDS

http://www.ninds.nih.gov/disorders/tbi/tbi.htm

RESOURCES (CONTINUED)


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