Biases in the Civil Justice System: The TBI Perspective

The Neurolaw Letter

a monthly HDI Publication for Legal and Health Professionals

Volume 4, Number 12

August 1995

Bruce H. Stern

Obtaining compensation for those with acquired traumatic brain injury presents one of the greatest challenges to a trial attorney. Because of inherent biases in the civil justice system, many individuals who sustain TBI, have been unable to obtain the compensation to which they are entitled. It is the intent of this article to examine these biases in an effort to help people with TBI, their families and those who provide both legal and medical services to better understand these biases and to help provide a framework to ensure that in the future those afflicted with this serious injury will obtain proper compensation for their devastating injuries.

Protestation to the contrary, the civil justice system adheres to the viewpoint that if you can't see it, feel it, or hear it, it doesn't exist. Many states have enacted laws prohibiting compensation for pain and suffering where such claims are based solely on the subjective complaints of the injured person as opposed to objective findings made by medical providers. In New Jersey, for example, public entities are immune from claims for non-economic losses for psychological injury unless there is some objective physical manifestation. These inherent biases in our civil justice system make it difficult for persons with acquired traumatic brain injury to recover fair compensation for their injuries.

Our civil justice system, however, is nothing more than a microcosm of society at large. The biases encountered by individuals with acquired traumatic brain injury in the civil justice system are no different than the biases in many instances this population encounters in many aspects of their ordinary lives. Our educational system encourages children to be, and rewards them for being, the best and brightest. It is therefore not surprising that those with acquired traumatic brain injury do not advertise these disabilities, rather denying and disguising their limitations as best as possible. Health care benefits for those with TBI are limited and inadequate. A review of present day health care coverage reveals minimal coverage for cognitive remediation for instance. Insurance disability carriers pigeon hole those with these disabilities often times as mental or psychological claims, limiting the extent and duration of disability payments. Because TBI truly is the silent epidemic, those with this injury have, in the past, been severely discriminated against in various aspects of life. The civil justice system is no different.

The biases that are seen in the civil justice system have many origins. They come from inadequate legal representation by trial lawyers who attempt to represent this population, by medical providers who have abused the medical reimbursement system for their own financial gain and from courts and legislatures which have looked upon these claims with skepticism.

When someone is injured in a traumatic event that is caused by an automobile accident, fall, defective product or the like, he or she needs especially trained legal representation. Despite specialization over the past decade, too many injured persons retain counsel who are ill-prepared to represent this particular population. Those with acquired traumatic brain injury cannot be represented in the same manner as those with many other injuries. It is essential for those suffering from TBI, who need legal representation, to retain a trial attorney who understands brain injury--it is not enough just to hire an excellent trial attorney. One of the paradoxes of our civil justice system is that the poorest of clients or richest of clients can hire the best attorney available. All personal injury trial attorneys work on what is known as a contingency fee basis. That is, the attorney is only paid if successful. Although this system has come under attack by the tobacco and manufacturing industries, it is a system that ensures that any injured person, no matter how poor or how rich, can obtain excellent legal representation.

It is important to recognize that trial attorneys earn their money by settling or trying cases to verdict. People with traumatic brain injury need more than just a settlement or verdict. Rarely is there enough insurance to compensate this population for the injuries they suffer. In most states, operators of motor vehicles are only required to maintain minimal insurance coverage. In some states that minimum is only $10,000 or $15,000. Consequently, the compensation provided to a survivor of acquired traumatic brain injury often will not be enough, no matter how good a job the attorney does.

For the traumatically brain injured person, there are many other legal issues that the attorney must address. There are issues of social security benefits, medical coverage, and estate and trust planning. It does no good for a person to obtain a large settlement and then have Medicare take that money in order for that person to obtain future medical care. It is therefore essential that the attorney be equipped to provide the person with TBI with future medical and estate planning. Indeed, it may be more important than obtaining compensation for pain and suffering.

Those suffering from brain injury should retain an attorney with expertise not merely in personal injury cases, but in handling TBI cases, from multiple perspectives. As a result of the media blitz by the insurance, manufacturing and tobacco industries, persons bringing claims for compensation have been portrayed as greedy people bringing fraudulent claims. As a result, juries are much more skeptical of claims brought by injured plaintiffs. This has made it extremely difficult to obtain fair compensation for people with brain injury. Unlike broken bones and herniated discs, which can be objectively verified by diagnostic testing or by noticeable limps or other physical disabilities, those people with acquired traumatic brain injury may appear quite normal at trial. Therefore, it takes a trial attorney with experience in trying these types of cases to be able to prove to a jury that their clients are in fact seriously injured.

During the past decade, medical and scientific investigation of the brain has moved at a startling pace. Unfortunately, our civil justice system is slow in keeping pace with it. Introduction of new scientific techniques and their admissibility in court lag far behind the advances in the scientific and medical community. Despite the U.S. Supreme Court's decision in Daubert v. Merrill Dow, 113 S. Ct. 2786 (1993), the introduction of new techniques must still go through a painstaking analysis before they are able to be introduced before a jury. Thus, new diagnostic testing such as brain mapping, SPECT scans and PET scans face uncertain admissibility in our courts. Throughout the country neuropsychologists are developing more sensitive neuropsychological tests to depict the subtle abnormalities experienced by many individuals with acquired traumatic brain injury. It will take years, however, before these new tests undergo peer review so as to be admissible in our courts.

The medical profession is also to blame for the biases encountered in our civil justice system. Medical cottage industries have sprung up to assist attorneys in proving their cases. Every week trial lawyers are inundated with medical advertisements from medical providers, promising to objectively document and prove disability or injury. Too many physicians and other medical providers have taken money from insurance companies while not providing proper medical services. Congressional hearings in the early 1990's have revealed abuses and excesses in the field of remedial and cognitive rehabilitation, requiring the rehabilitation industry to begin to assess and question the services that have been provided in the past. Psychologists, without the proper training in the specialized area of neuropsychology, have been providing inadequate treatment to those with traumatic brain injury. lt is no wonder that this treatment is looked upon by the insurance industry and our courts with some degree of skepticism.

Too many trial lawyers retain doctors who misdiagnose and over-treat injuries for their own financial gain, thus making it difficult for those who are truly injured to obtain the compensation to which they are entitled.

The very nature of the brain injury population itself creates a bias in our civil justice system. None of us are perfect. Defense and insurance attorneys point to preexisting conditions in an effort to reduce the compensation that their clients must pay. The correlation between substance and alcohol abuse and those with acquired traumatic brain injury are startling. This being so, juries, unfortunately, are quick to link various cognitive deficits to pre-existing conditions rather than to the traumatic event which is the subject matter of the specific lawsuit.

Consequently, despite the legitimacy of the injury, a complicated pre-existing health history can be fatal in the civil justice system. It is difficult to convince a jury, in today's climate, that a person with traumatic brain injury who had a previous drug history is entitled to compensation.

The key to ending or reducing these biases in the civil justice system is education. The public must become aware of the devastating consequences of traumatic brain injury. It is essential when these injured persons are brought into the emergency rooms of our trauma centers throughout the country that they are provided not only with needed medical care, but are provided with the appropriate resources to help them retain proper legal representation, future medical care, and social help from the very beginning. Doctors and social workers in the trauma centers must be educated and made to understand that those with acquired traumatic brain injury and their families must obtain immediate assistance to cope with the future problems that they are going to experience.

The medical field needs to police its own doctors and other medical providers. Better certifications in the field of neuropsychology and other specialties are critically needed. Too many psychologists hold themselves out as neuropsychologists in order to obtain work and additional income. Long-term rehabilitative institutions need to be able to document outcome projections and prove that the services which they are rendering will be of benefit. This will ensure that those who are injured will receive proper aid and that this care will be paid for by their private insurance carriers. Trial attorneys must be educated to either handle these types of cases properly or alternatively, educated to refer those cases to trial lawyers who can adequately handle those cases. There is much to be accomplished in the future to eliminate these biases to ensure that those with acquired traumatic brain injury obtain the care and compensation that is truly appropriate.

As lawyers and health care providers become more aware of the principles of neurolaw and begin using these principles in TBI cases, the climate for success in neurolitigation will be improved. The coherent approach to dealing with brain injury provided by neurolaw allows health care providers, attorneys, patients and families to work together in harmony within the civil justice. This emerging field of jurisprudence signals a new era of cooperation among caring professionals and their patient-clients. When neurolegal ideas are applied to pressing health-care problems, positive steps are taken to overcome the inherent biases in the civil justice system in brain injury cases.