401 Gilford Avenue, Suite 125 - Gilford, NH 03249 tel: 603.528.1600 - toll free: 800.838.0800 - fax: 603.528.1699
by Robert D. Hunt, Esq.
Traumatic Brain Injury (TBI) is the leading cause of death and disability in children and adolescents in the United States. [i] More than one million children sustain head injuries annually, and approximately 165,000 require hospitalization.[ii] The regulations promulgated pursuant to the Individuals with Disabilities Education Act now identify TBI as a distinct category of disability.[iii] Given the high frequency of brain injury in children, it is likely that attorneys who regularly practice personal injury law will encounter at least one case involving pediatric TBI.
Representing children with TBI can be a daunting task. Brain injuries and the associated symptoms are complex, and they are difficult enough to prove when the client is an adult. But an attorney’s job may become even more challenging when the client is a child with Traumatic Brain Injury. This is due to the problems uniquely associated with interruption of the child’s normal development, along with other factors that make such representation exceptionally difficult. This article discusses some of these issues and possible ways to address them.
General Considerations for Representing the Child with TBI
The child client is still in a very dynamic phase of life development. Injuries to the brain can directly affect a child’s normal physical and cognitive development in many ways. Measuring the effects of the trauma is made more difficult by this very interference in development. Further, the younger the child, the less pre-trauma data available to compare to post-trauma function, and the less likely the child will be able to communicate his/her pre and post-trauma experiences. Of course, children are also not as capable as adults of understanding questions and concerns an attorney may have, and this problem may be exacerbated by, for example, the effects of the TBI on the child’s ability to pay attention for any extended period.
Become Educated about Pediatric Traumatic Brain Injury
Even before reviewing a case for intake purposes, attorneys should review legal and scientific literature regarding TBI in general[iv], and children with TBI.[v] Doing so will help to ensure that early contacts, investigation and preparation will be accomplished more competently, and that the attorney will be ready to properly respond to special problems that accompany these cases. Attorneys must be well-versed in the subject matter during initial discussions with the child, parents, teachers, physicians and experts involved with the child. An attorney who fails to become well-informed on issues surrounding pediatric TBI may find that experience with adult TBI is inadequate preparation for such basic tasks as: communicating with a child with brain injury; working with overwhelmed parents; speaking with busy and overburdened teachers; and deciphering the numerous medical, psychological and educational tests.
Meet with the Child, the Child’s Family and Others Involved with the Child
Whether a brain injury is minor, moderate or severe, the injury and its aftermath can be devastating to the child, the parents and others who care about the child. Any level of adverse impact upon the cognitive or behavioral function of the child will have a ripple effect through the child’s family and beyond. Generally, the more severe the injuries are, the more facets of life affected. This simple fact must be taken into account by an attorney meeting with a child with TBI and those who love and care for that child. The attorney must be prepared to be confronted with a child’s intense emotions, possible deficient comprehension and communication, forgetfulness and other problems related to TBI that may affect the attorney’s ability to prepare the case.
Discuss Superior Court Approval, Probate Court Guardianship and Medical Bills with Parents and Follow-up with Written Memorialization
Any New Hampshire attorney who has represented a minor in a personal injury case is familiar with RSA 464-A:42 regarding settlements on behalf of minors, and Superior Court Rule 111 regarding the approval process.[vi] But attorneys should remember that parents are not. Because the approval process extends the duration of the case, and because the guardianship of the minor’s estate places substantial restrictions on any proceeds obtained, parents should have this process explained, and should have a written description of the process and the ramifications from the attorney.
Parents may also be unaware of the law that restricts their claims, in their child’s case, to expenses actually incurred by them and arising from the injuries, and of the fact that the child has no right to recover such expenses.[vii] Attorneys who do not explain these issues in detail to parents are likely to face unrealistic parental expectations with regard to case proceeds.
Be Prepared for Substantial Experts’ Fees
The following is a non-exhaustive list of experts one might expect to interact with during the course of representing a child in a traumatic brain injury case:
Although this does not mean that all such experts will be necessary to prove the case at trial, the plaintiffs’ case on causation may require a neurologist, a neuro-psychologist, a neuro-pyschiatrist and a physiatrist. Those who specialize in pediatrics are preferable. If the case involves claims for future losses, a life care planner and an economist will almost certainly be needed, and much of their work may rely upon the work of the other experts, including occupational and educational experts.
Attorneys should be prepared to possibly spend tens of thousands of dollars just in experts’ fees and expenses. And a substantial portion of these fees will be required early in the case. For example, it may be necessary to retain a neuro-psychologist at the very beginning of the case, usually to help interpret neurological imaging and neurological/neuro-psychological testing that has already been done, and to perform additional testing.
Examples of the types of imaging which might arise include Electroencephalography (EEG), Magnetoencephalography (MEG), Functional Magnetic Resonance Imaging (fMRI), Single Photon Emission Computerized Tomography (SPECT), Positron Emission Tomography (PET). Plaintiffs attorneys should expect challenges to the results of such imaging and prepare accordingly.
Attorneys should also be ready to familiarize themselves with a number of neuro-psychological tests such as the WISC-IV, the Wide Range Assessment of Memory and Learning - 2, the Rey-Osterrieth Complex Figure Test, the Beery Test of Visual and Motor Integretion, the Wisconsin Card Sorting Test, WISC-III Mazes and the Halstead-Reitan Battery, and discuss the tests with experts. There are likely to be other additional tests and evaluations in the educational records, and further such testing to be done as assessment of the child progresses.
Immediately Address Policy Limits, Liens, Medicare, Medicaid and Special Needs Trusts
Because the cost of pursuing a TBI case can be quite high, attorneys must not delay in determining what insurance coverage and/or assets will be available to pay for any judgment or settlement. Unfortunately, if the policy limits are low, pursuing the case may not be economically feasible. Additionally, parents should be informed as early as possible about policy limits and assets. Many people are unaware that all of the money necessary to address the medical and other needs of their severely injured child may not be available even if they succeed in settling the case or obtaining judgment.
Along with limited insurance coverage and assets, attorneys should carefully assess how Medicare, Medicaid and other liens are likely to affect the proceeds available to the family. For example, Medicaid’s right of recovery[viii] is such that a strict application of the statutory formula might render a plaintiff’s case futile, and attorneys may wish to speak with Medicaid representatives early on to determine whether any compromises on the lien are possible.
If a client is the recipient of Medicaid or other income-based public assistance, income from the personal injury matter may adversely affect eligibility. This is another issue that should be considered early and discussed with parents. Under some circumstances, it may be necessary to recommend the establishment of a Special Needs Trust[ix] or some other mechanism to avoid interference with eligibility.
Determine Whether Experts Have Been Qualified in the Past
Attorneys should ask their experts a series of questions to determine early whether they are likely to survive a Daubert[x] challenge. A detailed itemization of education and experience, certifications, publications, and professional achievements should be obtained, especially those directly related to pediatric issues. The experts should be also be asked detailed questions regarding their methodologies used to reach their conclusions, the acceptance of others in their fields of such methodologies, and previous application of such methodologies.
Attorneys should also be prepared for Daubert challenges to the neuro-imaging and neuro-psychological testing used by the various experts.[xi] Certainly, any prior cases in which the expert was qualified to testify, and those in which the results of imaging and testing were admitted into evidence should be explored.
Do Not Rely on the Child’s Statute of Limitations for Parents’ Claim for Consequential Damages, and Do Not Assume That Liens for Medical Expenses are Valid
In New Hampshire, being a minor is considered a disability, at least for the purposes of the Statute of Limitations in personal civil actions. Essentially, a minor’s claim in a personal injury matter remains viable until the age of twenty; two years after the disability of being an infant ceases.[xii] However, the minor child has no claim for medical expenses incurred during minority as these are exclusively the parents’ responsibility, and, therefore, medical expenses are for the parents to recover.[xiii]
This is significant because attorneys will begin representation either before or after the parents’ Statute of Limitations runs. If an attorney represents both the parents and the child,[xiv] the attorney may be faced with having to file suit long before the child has reached a medical endpoint in order to avoid exceeding the parents’ Statute of Limitations deadline. If an attorney begins representation after the parents’ Statute of Limitations has expired, and there are Medicare, Medicaid and other medical expense liens, then the attorney must address the issue of whether or not those liens are valid as to any of the proceeds, given that the minor child has no right to make a claim for medical expenses.
Speak With Experts and Review and Share the Child’s Prior Medical and School Records
Probably because parents love their children so much, they tend to view their children with rose-colored glasses. Most likely, the parents will tell the attorney that the child was a well-adjusted, well-behaved, good student prior to the trauma. Attorneys must verify that this is true.
Parents and attorneys must review educational and medical records of the child. These records may reveal, for example, that the child was diagnosed with, and medicated for, Attention Deficit Disorder prior to the trauma causing the head injury. Therefore, symptoms and deficits which the parents (and the experts) claim result from the head trauma should be clearly delineated as early as possible and compared to the child’s history, especially the history reflected in the educational and medical records. Furthermore, if an attorney expects to rely on a particular expert’s opinion with regard to symptoms and deficits arising from the TBI, that attorney must make sure that the expert has had the opportunity to review all of the child’s history and records prior to coming to any conclusions on causation and damages.
Eventually, the attorney’s experts are also going to substantially rely on information provided by the child, the parents, the teachers and others who know and have had significant contact with the child. Therefore, an attorney for a child with TBI must interact directly and effectively with these potential witnesses to learn both what they have to say, and how they are going to say it. One way to prepare for client and family meetings is to consult with experts in advance of and during this process. Certain experts can provide helpful insights and methods attorneys can use to improve the quality of such interactions.
Identify Issues and Damages Specific to Children
TBI affects children and adults differently. Attorneys should strive to understand these differences, and to work with all of those involved in the case to become better able to highlight the issues and damages which are unique to children with TBI. For example, while an adult may have had the opportunity to engage in fulfilling intimate relationships prior to a TBI, a child may be deprived forever of the ability to have such relationships. There are many other examples that should be explored with experts and lay people involved with the child.
Be Prepared for Defenses Specific to Children
There are also defenses that arise which are unique to the minor plaintiff’s burden of proof. For example, if the symptoms arising from the TBI include migraine headaches, the defense may challenge assertions on the prognosis and future intensity, frequency and duration of such headaches, given that physiological development may also have an impact on future migraines. In fact, it is likely that the defense will attempt to contest as many claims on anticipated future damages as possible based upon the minority of the plaintiff, and attorneys would be well-advised to address such issues with their experts in advance.
Scrutinize Vocational and Economic Predictions
Because there are multiple experts, and because TBI is a complicated medical issue, vocational and economic experts rely heavily on the medical experts’ reasoning and conclusions. Much of the claimed losses in pediatric TBI cases will be anticipated future losses, but the causal nexus between the TBI and any claimed long-lasting or permanent injuries, symptoms or deficits should be clarified by the medical experts as early as possible, and definitely prior to the completion of vocational, life care planning, and economic evaluations.
What this means practically is that attorneys should seek written commitments from experts very specific to causation early in the process. Attorneys need to know right away if a neurologist will testify that the TBI exists and was caused by the trauma at issue, but also whether the neurologist can testify, for example, that the visual aura related to a child’s migraine is likely to be permanent and to worsen over the course of the child’s lifetime. Such prognoses must be solidified so that experts’ testimony on future losses specifically related to such symptoms will not fail for lack of sufficient medical foundation.
Pre-empt Expert Disclosure Challenges
The excellent qualifications of an expert will not matter if an attorney fails to disclose the expert correctly. Whether an attorney will be required to disclose experts under the Rules of Evidence, RSA 510:29-b, or the Court Rules, such disclosure should be as specific as possible, while simultaneously general to allow for any potential testimony not covered by the specific disclosures. One way to be sure that this is done thoroughly is to directly involve the expert in the disclosure process, and discuss the legal requirements of such disclosure early in the attorney expert relationship.
It may also be helpful to insert into the written expert disclosure a request to opposing counsel that he/she provide immediate notification if the disclosure is deemed insufficient in any way, and further state that any further information needed will be provided. It may even be beneficial to insert a statement that the purpose of this part of the disclosure is to avoid insufficient disclosure, to allow opposing counsel to get the required information, and to avoid litigation over the adequacy of the disclosures themselves.
Finally, RSA 510:29-b provides, if nothing else, a useful outline for disclosure purposes, and if followed thoroughly, can go a long way toward assuring that disclosure is adequate.
Conclusion
Serious pediatric TBI cases in New Hampshire can require a great deal of effort and
financial investment on the part of plaintiffs’ attorneys. These cases are often heavily expert-driven, and involve complex neurological, psychological and other medical issues, as well as educational, familial and child-develop concerns. New Hampshire attorneys should prepare themselves and their clients early in a pediatric TBI case for a potentially difficult and burdensome process. However, successful resolution of such cases can be equally as rewarding and satisfying, especially when a verdict or settlement will clearly improve the child’s life and future.
ENDNOTES
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[i]. National Dissemination Center for Children with Disabilities, Fact Sheet No. 4, 1997.
[ii]. Id.
[iii]. Traumatic Brain Injury (TBI) is defined within the IDEA as an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. The term applies to open and closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgement; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma. 34 C.F.R Section 300.7(b)(12).
[iv]. For a detailed discussion of mild TBI, see Kevin M. Leach, Esq., The Mild Traumatic Brain Injury Case, N.H. Trial Bar News, (Spring 1995).
[v]. See Snow, Jeffrey H., and Hooper, Stephen R., “Pediatric Traumatic Brain Injury” 1994 at p. 3.
[vi]. If the case is in the U.S. District Court for the District of New Hampshire, then see Local Rule 17.1. If the case is in a New Hampshire District Court, then see District and Municipal Court Rule 3.24.
[vii]. Vachon v. Halford, 125 N.H. 557 (1984) citing Blue Cross/Blue Shield v. St. Cyr, 123 N.H. 137 (1983).
[viii]. RSA 167:14-a enables the State of New Hampshire to recover monies paid out on behalf of Medicaid recipients who receive settlements or awards from third parties. (Note: As of this writing, a bill is pending in the New Hampshire Senate which would clarify that the commissioner may waive or reduce such liens for good cause.)
[ix]. For a detailed explanation of Special Needs Trusts, see Jan P. Myskowski, Esq., Special Needs Trusts in the Era of the Uniform Trust Code, 46 N.H.B.J. 16 (Spring 2005).
[x]. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)
[xi]. For example, see Penney v. Praxair, 116 F.3d 330 (8th Cir. 1997) in which the Eighth Circuit upheld the district court’s refusal to admit certain PET scan evidence regarding an alleged brain injury.
[xii]. RSA 508:8 reads as follows:
An infant or mentally incompetent person may bring a personal action within 2 years after such disability is removed.
[xiii]. Vachon v. Halford, 125 N.H. 557 (1984) citing Blue Cross/Blue Shield v. St. Cyr, 123 N.H. 137 (1983).
[xiv]. This article does not address whether or not such representation gives rise to professional responsibility issues.
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401 Gilford Avenue, Suite 125 - Gilford, NH 03249 tel: 603.528.1600 - toll free: 800.838.0800 - fax: 603.528.1699