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This video features Mark Choate, a Criminal Law attorney based in Alaska.
I've been the first person many times to go, “You need more evaluation. There's something else going on here.” And then it all comes back as well, yeah, you've got a brain injury, but it wasn't picked up before.
Did you know brain injuries are sometimes called the invisible injury, and why that would be? Well, that's what we're going to find out today, because that's what we're going to ask the lawyer.
Hi again, everybody, I'm Rob Rosenthal with askthelawyers.com and my guest is Alaska attorney Mark Choate. I remind you that if you have specific questions about your specific situation, you can go to askthelawyers.com, click on the button at the top of the home page that says “Ask a Lawyer”, and you can do your asking right there. But right now, I'm going to do the asking.
Mark, it's good to see you. Thank you for making some time to help us out here.
You’re welcome. It’s nice to meet you.
So let's just start with brain injuries, TBIs, sometimes called the invisible injury. Explained that to us. Why would that be?
The brain sits in the skull, so if you think of the skull as being this hard protection around the brain, the brain sort of sits inside there; the brain is almost like jello, and that actually has a consistency of jello, and there's just billions and billions of neurons in the brain that are all sending information and transmitting information. Well, when the skull is hit, the brain moves, and it's generally the collision of the brain with the skull that is going to cause injury to the brain.
Now, there are some brain injuries where it's very evident in the sense that the skull is fractured, the brain actually moves so much it's called a midline shift, and you would be able to see by the way the person walks and the way they talk, that there's something really wrong with them. Those are the most severe injuries, and often they are so serious because of bleeding and other things that the person may die. But more commonly, the brain, when it's injured, the way that it sends the signal that it's been hurt will be more difficult to tell. If the skull isn’t broken, and usually our skulls are intended to protect us, then something has happened with the brain in there, but it's not going to be always as evident. That's why someone can have what's called a TBI or traumatic brain injury, and they'll look, when you first see them, like everybody else.
What you won't realize is that their brain has been injured and this can cause a ton of problems. It can cause problems with their memory, and that means either they may have lost memory or they may have difficulty in creating new memories. So one example will be that if you have an inability to take new information into what's called short-term memory and turn it into long-term memory, if that's interfered with you may not be able to learn new things.
So I once had a woman who was in a car crash, and it was a fairly significant crash but looking at her you wouldn't be able to tell there was a problem; she had worked for years as a cashier at a grocery store. She comes in and we talk about the crash and I say, “How's work going?” And she goes, “It's fine. You know, I can do everything I did before.” So my view initially was that there wouldn’t be much of a lost earnings claim for this lady. Then two months later, she comes to my office and she's crying, and I go, “What's happened?” And she said they reorganized the store. And I go, “Yeah?” She says that she can't remember where anything is now. So she had her old memories of how the story has been organized before and as long as the store wasn't changed, she could tell people, “Yeah, go down aisle four and that's where the diapers are.” But when they moved, she couldn't learn the new places, and so she had a problem with transferring memory from short to long-term memory. You can have issues with people being able to remember sequences of the things.
One of the best examples is people multitasking, where someone says, “Go to the store and pick up a gallon of milk.” They'll go to the store, pick up a gallon of milk, you won't notice there's any problem. But if you say, “Go to the store. I want you to pick up a gallon of milk, a loaf of bread, and a dozen eggs.” Now they’ll get to the store and they'll forget two. So one of the things that often happens is people who have brain injuries will say, “Well, I keep really good notes because I can't remember anything anymore.” So I’ll go, “And what's the problem?” They go, “I lose my notes.”
You can have memory issues, you can have word finding issues where someone will look at a coffee cup like this and they'll go, “That's a... pencil.” And they literally cannot make the connection between what they're seeing and the words that come out of their mouth. So you could have issues with word finding. You can have a lot of issues with emotions, and that is one of the things that happens is injuries to certain parts of the brain will affect the way you are able to control your emotions. And so when someone's been in a crash or a fall, frequently people go, “Well, they're really moody or they're really different since then,” but they'll think it's because they're depressed or because they're having some emotional issues with it. But no, the brain has been hurt, and the way the brain sends the signal it’s been hurt is by affecting emotions. Brain injuries like this can also cause things like light sensitivity, where you literally... Some of my clients live in dark rooms; any light is incredibly difficult. Sound sensitivity. One of my clients, his parents couldn't wash the dishes in their house, because even all the way across the house when he was inside his room, he could hear the dishes clattering and clanking and that was too much for him. It can have lots of different effects. And you'll look at the person and not realize that their life has really changed.
So that kind of brings up my next question. A lot of these things you described, Mark, it would seem like in an emergency room when someone's brought in after a crash, those are not things that a doctor doing an initial consultation is going to pick up right away. So sometimes these must go either if not misdiagnosed, undiagnosed for a period of time.
Yeah, I would say back in the 80s and 90s, they were just not diagnosed at all, but more recently, I think, especially because in part of pro football where there's been a lot of study on concussions and repeated concussions, and then because of the wars in the Middle East which were, I think, unique in the number of IEDS (improvised explosive devices), that would often create concussions, shock waves that would cause brain injury; now there's more awareness of the effects of concussion. So people often will be diagnosed with a concussion in the ER, but they'll be told, “Go home. Don't worry. It'll get better and you'll be fine.”
But what we've learned and what the data is now showing is that probably half of the people who have concussions have some kind of long-term effects. Some people get better, but there are way more problems than we realized, and most people often won't even make the connection. I was just interviewing a family the other day, and I was asking the husband who was injured and I said, “Well, tell me about what's going on.” And he said, “Well, I don't think there's a problem. I’m not having any emotional issues.” And his wife said, “Oh, that's not right.” So often it's the people around you who will see these problems going on, someone at work, friends, etc. So it's a challenge. It's really hard. And with doctors there's frequently no follow-up with this; if you're able to walk and talk, they won't ask much more in terms of how you're doing.
So unless you get to the right people, the right physicians, and the right healthcare providers who are aware of brain injury and can ask the right questions, you may have a brain injury and it's not been diagnosed or it's not being treated.
It seems like the injury could not only affect the person injured, but a family, the entire household, other caregivers, that sort of thing. Is that something that is taken into account when determining damages and that sort of thing?
It is, and one of the hardest things about brain injuries is how many marriages fail because brain injuries affect the way people interact with each other. What you often see is the spouse goes from being the person who's sharing someone's life to being the nurse, and now they're the person remembering everything, now their the person following up, now their the person who's dealing with somebody who's not the same. Often people with a brain injury will just go, “I don't feel like I'm the same person anymore.” And frequently, the people who live with them go, “They're not the same person. They're really different.” So it is something that can be evaluated and dealt with when you ask for damages, but it's really important to know about and understand it early, so that people just don't go, “Well, ever since the car crash George has just been terrible to live with and I guess we can't stay together.” Instead, if George's arm had been hurt and you said, “Well, you know his arm was broken.” And so now when you have him go out and haul firewood he can only do it for 20 minutes and he has to sit down and you can't use that arm for two days.
Well, if your brain is hurt, when it gets stressed it also will show that it's been injured in certain ways; and if you understand it's much easier to understand that well, we can't go to a party because there's too much noise, or when he starts getting tired, we're going to have to leave, or he's going to have to go and lay down because he's overwhelmed.
I was just talking to a client the other day in Anchorage, and she said she can work about three hours a day, and after about three hours, nothing is tracking. She can't follow it; she can't even understand it. So she's got three or four hours, but that's about what she has, and that's the nature of brain injury.
It sounds like it's so important to have an attorney who has experience in this area, because it's not just as with any other injury, like you said, a broken arm or something like that. How important is it to have an attorney who has experience with these kinds of cases?
Well, I think it is. The saddest thing for me is how many people are not diagnosed or not properly treated, and then almost as sad as someone who gets to a lawyer, but the lawyer doesn't realize the client has a brain injury. I've been the first person many times to go, “You need more evaluation. There's something else going on here.” And then it all comes back as, “Well, yeah. You've got a brain injury, but it wasn't picked up before.” And some brain injuries can be so disruptive, it can create a manic-depressive behavior where you're real high and then you’re role that can result in suicide.
The very first case I ever had was of a young girl who had been in a terrible crash, thrown out of a car, the car had rolled over her, broke bones off and down her body and had blown out the orbits in her eyes. All the bones in here had broken. She had a couple of months in the hospital, but not one doctor diagnosed her with a brain injury. But when you looked at the medical records, the nurses notes would say, “Is watching the same movie she watched the day before. Does not remember we did this yesterday.” And a year after her crash she committed suicide; it was on her 17th birthday. Since then, I'm always aware and will always advise people on these cases, make sure that you're paying attention to this because these behavior changes where people go, “Well, you were in a terrible crash so of course you feel bad.” And you do, but you may also feel bad because you have a brain injury, and that's how the brain sends signals to you.
Lots of fascinating information, Mark. I'm sure we could go on much longer. Thank you so much for answering our questions today. I do appreciate it.
That's going to do it for this episode of Ask the Lawyer. My guest has been Alaska attorney, Mark Choate. Remember, if you have questions about your specific situation, go to askthelawyers.com and click on the button at the top of the screen that says “Ask a Lawyer”. Thanks for watching, everybody. I'm Rob Rosenthal with AskTheLawyers™.
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