Spotting a brain injury
I am sure we all know or have known a stroppy, morose, seemingly permanently half-asleep teenager. We might even live with one. We might also know a grumpy, weary, short-tempered older person who seems to have no motivation in life. They could be your partner or a parent.
But can we tell just by looking at that person whether that is just how they are or is it possible they that might have depression or have the beginnings of dementia? Can we tell immediately whether they might even have a brain injury, possibly from birth or as a result of an accident? Is it possible to have a brain injury AND have depression or a degenerative mental disorder or illness?
The answers are not straightforward, but an easy starting point for a response is no, we can’t and yes, it is.
What is often not recognised with people with brain injuries that underneath the injury, there is still the original person and that person is just as susceptible physiologically to the same illnesses and disorders as people without a brain injury.
There is, however, to an extent, a probably unconscious bias both on the part of the injured person and those around them to assume that anything that is wrong must be down to the brain injury. What this can mean is that the brain-injured person could be suffering from a disorder or illness that is actually eminently treatable in the same way that non-brain-injured people are treated.
This is not always the case, but the challenge is to try to separate things that can be treated, from things that are in fact the result of the brain injury from things that aren’t and which may not be amenable to treatment.
Living with a brain injury
Brain injuries can lead to all sorts of disruptions in the body, not just the more obvious and perhaps cliched symptoms and presentation of brain damage, such as loss of memory, word-finding and speech difficulties or movement disorders.
The metabolic system can be disrupted, leading to weight gain, or there can be hormonal disruption – a stroppy teenager trebled! Is someone refusing to get out of bed just trying to avoid rehabilitation sessions, or are they genuinely tired due to a malfunctioning thyroid? Is their memory loss due to the damage to their brain, or are they developing a dementia type illness?
It can be very difficult to separate the two out, but as lawyers, we have to try to do so. This is because compensation for an injury depends on the nature and extent of the injury, which is why each award is different, but – compensation is only given for the injuries caused by the event giving rise to them, whether an accident or medical negligence. If the injury or disorder wasn’t caused by the negligent event, then it may not be compensated for.
It can, of course, make the effects of the injury caused by negligence more difficult to cope with and that can be taken into account. It could also affect life expectancy and therefore how much can be awarded through compensation for future needs.
If, for instance, we look at some of the effects of dementia, these can include lack of executive function (the ability to plan, organise and complete tasks), difficulties with language, memory, emotion and behaviour, which can include disinhibition.
But if we then look at the functions the frontal lobes of the brain are involved in and which can be lost or disrupted by an injury to them, we get difficulties with motor function, problem-solving, spontaneity, memory, language, initiation, judgement, impulse control, and social behaviour including disinhibition.
Not easy to distinguish, is it?
We can use scans, which tell us which parts of the brain are actually damaged and so which functions should be disrupted, but it’s not as clear cut as that, especially where several areas of the brain are involved to a greater or lesser degree.
We can use psychological testing, but again, it is not an exact science and many factors can play a part in how “well” a person can engage with the tests. There is often debate over the nature of the tests themselves.
One of the problems we have had as lawyers over lockdown is that many of our experts have been unable to offer face to face appointments. Instead many have used remote means for appointments, but they bring their own problems in how the tests are carried out and thus interpreted. Research suggests that young men do far better using remote means than do, say, older people or those not used to IT (there are still some!) and of course, this can affect the results. In turn, this can affect the way a claim for compensation is developed.
We do the best we can using experts, often very many of them, to try to come to the right conclusions about how the injury was incurred, what effect it has had and what the likely prognosis is.
But the key point we want to make here is that not everything that appears not to be well with a brain-injured person is because of the brain injury. It is important to examine for underlying non-injury causes and to ensure that a brain-injured person is not denied treatment which could make a difference because of an assumption that could be wrong. They sometimes will not be able to articulate their problems, so it’s up to us around them to try to find out.
We can help
Contact Brenda and the team for help and advice. Call 01522 561020 or email firstname.lastname@example.org