Practitioners must exercise extreme caution when dealing with potential subtle brain injury, says Rose Gibson
I have handled many head injury claims. One of the hardest tasks is adequately representing in a case where even the client and their medical advisers have not realised or accepted the injury’s potential long-term effects. Having seen how easy it is for subtle brain injuries to be overlooked, it is surely only a matter of time before a less experienced lawyer finds themselves not just under-settling – which I am sure happens all too often – but on the wrong end of a professional negligence claim for inadequately advising and representing a head injury victim.
My professional obligations and due diligence mean I cannot afford to be complacent, particularly when faced with medical advisers who have not yet fully determined the effects of a client’s head injury. We must remember that medical-related issues can crop up at a later stage, and put in place all necessary investigations of the issues presented to us, taking account of all available medical evidence.
It is surprising how often an actual or potential brain injury is overlooked or not investigated. Many people attending hospital following a head injury do not realise the extent of the damage; they may not notice any significant ongoing effects until they go home and try to adopt a normal routine or return to work. Some of these cases will amount to nothing more than headaches or mild concussion; in others, the effects can be life-changing.
One of my clients returned to work after her head injury and remained there for two years, adamant that she could continue, and nearly accepted an offer on her claim. In truth, she was concealing high levels of performance anxiety and stress, resulting in a mental breakdown and her leaving for lower-paid, less stressful employment. She came to accept that there had to be something behind her mental health issues and this ultimately proved to be subtle brain damage.
These injuries are difficult to detect, with the patient often not realising the signs. People may not exhibit any obvious signs of problems, but then struggle with issues such as a change in personality, coping strategies at work, extreme fatigue or memory loss.
Where there is no formal diagnosis of a brain injury, sufferers often attribute these symptoms to psychological factors. Even medical experts can struggle to diagnose whether or not there has been a subtle brain injury; it is not unusual to see the consultant neurologist and neuropsychiatrist disagree over the severity classification of a potential brain injury.
In many cases, the injured person will not fully appreciate the potential impact of their ongoing symptoms. Sadly, we see clients struggling, often being defensive about the idea that there could be damage.
However, as lawyers, the last thing we want is for a client’s case to be under-settled, or to be sued for professional negligence if, for example, the client develops post-traumatic epilepsy. No stone must be left unturned, and sometimes we have to play a waiting game, gathering as much evidence as we can to either confirm or exclude the possibility of a subtle brain injury.
The risk of a professional negligence claim does not scare me. As long as I know there is a potential for a subtle brain injury to be missed, I will continue with my enquiries until satisfied. Claimants must be properly supported in recovering in all aspects, no matter how subtle, hidden or difficult to come to terms with.
Experts are crucial but their reports are only as good as the information we supply to them. Most lawyers who come across subtle brain injuries will see clients who are adamant that they are, and indeed come across convincingly as ‘OK’. We must remember that we normally only meet such clients post-incident, and if there is any evidence of a bang to the head that includes any loss of consciousness or other neurological symptoms – such as lack of concentration, memory loss, confusion or otherwise – then we must fully investigate.
Ambulance records often give an indication of any impact on the Glasgow Coma Scale at the scene. In the absence of those, the most valuable documents to help medical experts make a diagnosis of subtle brain injury are witness statements from friends, family members, colleagues or other relevant acquaintances.
Time and money
Despite the challenges of fixed costs, nothing can replace taking a statement face to face with a client or a witness. These must be as full and detailed as possible, focusing on aspects of the client’s injury that they may not even perceive. A good rapport is important and sensitivity is required, particularly if the lawyer has to impart information that the client will not be happy with, or potentially embarrassed by. Sometimes, saying ‘if it was me, I would want to know’ is enough; on other occasions, the lawyer has to be more resourceful and understanding of the client’s needs.
In many head injury cases, time is of the essence – there are immediate and apparent needs which require an early settlement. But where subtle brain injuries are a factor, a slower approach may serve the client better, allowing time for all symptoms and consequences to become apparent and to be properly assessed. In such cases, an early settlement may be followed months later by devastating consequences such as loss of employment or other events that make the client realise that they have been more badly affected than first realised.
Advances in medical technology help. Incredibly sharp and detailed images can be obtained quickly and at relatively low cost through 3T MRI scanning, which can identify tiny areas of damage within the brain that can be the cause of the symptoms. Such scans should be obtained sooner rather than later to increase certainty, so that the client knows from the outset if there is likely to be a problem and rehabilitation can be addressed at an earlier stage. It also helps to prepare the client, during the early stages of the injury, to accept that there may be a subtle brain injury.
In summary, extreme caution must be exercised when dealing with potential subtle brain injury cases. These cases expose lawyers to the most risk. It is particularly dangerous to assume that medical experts are always right, especially where there is a conflict in expert opinions. Awareness of potential issues, follow-up on lines of enquiry via competent evidence-gathering and a sensitive approach to the client’s feelings will all serve the client’s best interests and keep professional negligence claims at bay.
Rose Gibson is a partner at Simpson Millar in Manchester