The person looks okay. He was released from hospital. The test results came through clear enough, but there’s still something that just doesn’t feel right; they keep forgetting what was said, lose their train of thought in the middle of a sentence, and suddenly can’t manage things they used to do without breaking a sweat. The problem with traumatic brain injury isn’t just a medical thing. It’s also a legal one, and not understanding both sides can be a huge mistake for families involved.
The Australian Institute of Health and Welfare has found that someone in Australia is hospitalised for a head injury about every four minutes. It is usually transport crashes, workplace accidents, falls or being beaten up. Each case has its own unique road to recovery and the same goes for the whole legal journey too, which is why brain injury lawyers Sydney play such a critical role.
The Tricky Presentation of Mild Traumatic Brain Injury
Most people picture a serious brain injury as being really obvious, you know being unable to move or whatever. But the thing is, mild traumatic brain injury, which includes concussion, makes up the vast majority of all TBI diagnoses. Those symptoms can hang around for months or even years while all the scans come back normal.
Some people get let out of the emergency department with a concussion, go back to work a few days later, but then spend the next couple of years dealing with constant brain fatigue, memory problems, light sensitivity and mood swings that nobody else can see. And just because you can’t see the damage on the MRI, don’t think some insurance company lawyer won’t use that against you. In fact, it’s often one of the first things they’ll throw at you; it isn’t the last word though. You still need expert evidence that puts it all into perspective.
Why Do Brain Injury Claims Get So Much Expert Disagreement?
The future cost of lost wages and the cost of ongoing care are the two biggest items in a serious brain injury claim. When you add those two up, over a working lifetime and a care lifetime respectively, they can really start to stack up. That’s exactly why these claims get so fiercely contested; defendant’s insurers want to keep the bills down any way they can.
They commission their own independent medical assessments, mostly just some bloke who will put down in writing that the injury is nowhere near as bad as claimed. This often puts them at odds with the person’s own neurologist or neuropsychologist. Then you get into a battle of who’s an expert and the side with the best evidence is the one that gets to win.
What Long-Term Effects Courts Need to Account For?
It’s not just about the obvious things like memory loss or lost mobility. A brain injury can have a whole heap of long-term consequences that can really make life tough socially and at work:
- Personality and emotional changes that wreck relationships and blow careers (things that a physical injury wouldn’t have done).
- Broken relationships, statistically a pretty common outcome after a serious brain injury, that can also be factored in when you’re working out the non-economic side of the claim.
- The economic value of all the care that friends and family have to chip in with, which should be properly accounted for in the claim.
- Lost hobbies, lost social stuff, all these things count too.
The Diagnostic Gap Defendants Use
A delay in time from the accident to a definitive diagnosis is a frequent issue. Injuries sustained in accidents often result in incomplete assessment of the injury, especially where other, more easily diagnosable injuries are sustained. Symptoms that get worse as time goes on will not result in a visit to a specialist for months on end. This results in the defendant arguing that what is happening now was caused by something entirely different. Proving a gap is filled through contemporaneous documentation, such as emergency room files, GP documentation, and witnesses who knew the injured during those first few weeks.
Where the Injured Cannot Speak For Themselves?
Traumatic brain injury can render an individual unable to instruct counsel, understand proceedings, and make legally binding decisions. In this scenario, a litigation guardian must be appointed. Compensation management orders ensure that settlement money isn’t mismanaged by a person who cannot handle their finances as a result of their injury. These are separate procedures from making a claim for compensation. Families unaware of these extra procedures will be caught off guard in dealing with them when it’s too late.
