Traumatic Brain Injury Damages in Massachusetts

An Interview with Kenneth Kolpan  — Boston, Massachusetts Brain Injury Lawyer

Joel Cohen (JC): Hello, and welcome to TalksOnLaw. I'm Joel Cohen. Today, we'll be talking about traumatic brain injury and will be joined remotely by an attorney who focuses his practice on traumatic brain injury. Ken Kolpan is an attorney in Massachusetts. Ken, welcome to TalksOnLaw.

Kenneth Koplan (KK): Thank you, Joel.

JC: Let's talk a bit about putting a number to damages when it comes to traumatic brain injury. I imagine this would be incredibly challenging.

KK: It is difficult. It reminds me, I represented a then nine-year-old girl who suffered an asphyxia in the hospital. Now, that's an atraumatic injury, but the way one proves damages is similar that the way you prove damage in a traumatic brain injury. If it's a death case, many states like Massachusetts spell out the areas of compensation: loss of consortium, conscious pain and suffering, perhaps punitive damages. But with someone who has a significant traumatic brain injury, one first looks at their premorbid, meaning pre-incident background, to understand what they had been doing, what was their potential for the future. And I'd go ahead and hire experts in the field of vocational, experts of economic, experts in particular field that they were qualified, that they would likely go into. And those people put together a vocational plan for the future. An economist puts dollars on the lost earning capacity. A medical expert renders an opinion on life expectancy even after the severe brain injury. And all of those experts actually tie into one another because the life expectancy of someone with a severe brain injury is greatly affected by the treatment they get. So you know the defense may argue, “Well, they have a short life expectancy.” The counter to that is yes because of what your client did to our client.

JC: I want to ask about some intangibles, or what I think of his intangibles, and how you've wrestled with it in your cases or how you've seen others treat it in the court. How about memory loss especially if the memory loss doesn't directly affect job performance or salary? Can I be compensated for having some of my memories taken from me?

KK: Well, you know, to answer to your question, probably not. We always have to prove it. We have to prove. So what's the impact of someone's memory loss, short-term memory loss, who is not working? Well, one thing that comes to mind is a case involving a young woman who had gone into an OB-GYN's office to then to have a pregnancy terminated. And the nurse grabbed the wrong medication and the wrong IV bag and overdosed her causing a brain injury. She had short-term memory. Now the problem for her is that she could not be left alone. If she left something burning on the stove because she forgot. If something happened in the house, she shortly would forget what it was. She wouldn't recognize danger. So that's one case that comes to mind where the loss of memory doesn't necessarily impact their ability to do their work but it seriously impacts their ability to be safe.

JC: So you would try and demonstrate loss in terms of the cost of having someone supervise them or having extra security or extra features added to the home. What about just the fact that her brain doesn't work at the same level that it used to?

KK: Well, there is, and you talk about intangibles, so there is a claim what we call loss of consortium. That if the individual that has a traumatic brain injury is married and or has children, minor children, their memory loss may affect the relationship between her spouse or his spouse and their children. And those individuals have a claim through the injured person for loss of consortium because their quality of life has been drastically impacted.

JC: And I imagine you know, I wanted to ask a few others. How about reduced motor function? And here, I'm again, I imagine if I was a professional soccer player and I got into a car accident and my reduced motor function prohibited me from my premier league career, that would make for an easier case. But as a lawyer, you know, my ability to perform on the basketball court or to to ski in this, in the winters is less critical to my earning capacity. Would that be difficult to recoup damages for?

KK: Would be, and I agree with the examples that you gave. But there's also the example of the broken pinky of the violin player. I mean, as a lawyer I could you know I could type with nine fingers, but the violin player may not be the classical player that he once was. And I actually represented a well-known classical player whose brain injury affected his ability to perform. And he was performing at Lincoln Center,  and the review the next day was negative. It's a review he had never received, and it was in part due to his traumatic brain injury and the emotional response he was having to it.

JC: Well, Ken, it seems like a failing to me of the justice system. It seems to me if i'm, if my motor skills are reduced, if my ability to remember things are reduced, that's a pretty bad consequence and I don't need to be a soccer player or some type of day trader to be able to to receive real compensation for it. Is that a problem that you see with this system?

KK: No, I don't think it is a problem. What the system is asking you to do is to connect the impairment to a disability. So as a lawyer, having memory problems greatly impacts your ability as a lawyer. And so the system asks and demands you must prove the connection, and that's what jurors are looking for, and that's what the art of persuasion [in] traumatic brain injury cases is all about and to have jurors understand that some of the things that they do on a daily basis, my client no longer can do.

JC: Ken, before we let you go, I know that we spoke briefly in our prep that there are some common misconceptions when it comes to traumatic brain injury and its treatment by courts.

KK: Yeah so, and you'll hear some of these from the defense side. They didn't lose consciousness. Therefore, there's no brain injury. Well, since 1981 and before then, the definition of traumatic brain injury did not require loss of consciousness. It required an altered mental state. Another myth is the absence of evidence isn't evidence of absence and what do I mean by that. If X-rays, CAT scans, EEGs are negative the defense would say, therefore there was no brain injury. Well, there's a couple of responses to that. One is brain injuries occur at the microscopic level below the radar screen. A second response is that there are individuals in comas in nursing homes who have normal CAT scans. Another myth which we addressed earlier is that there must be an impact on the skull or head in order to cause a brain injury. We've covered that earlier. It's really about acceleration, deceleration. Another myth is while they seem fine, it wasn't until a week or two later. We know that the process of traumatic brain injury involves what is known as a metabolic cascade, and that takes time for this biological response to torn brain cells to occur. And so there can be delayed symptoms. And finally, one of the great myths is everybody recovers from a traumatic brain injury. Statistically, that's not true. The CDC has cited anywhere with 10 to 12 to 15 percent of people with traumatic brain injury do not recover after 12 months. And I'll leave you on this note, which is also part of the myths. There are three types or descriptions of traumatic brain injury: minor, mild, and severe. So when people say oh he had a minor traumatic brain injury. What the myth is they must be okay. While minor moderate severe does not refer to the consequences of the brain injury, it refers to the duration of loss of consciousness, if any. And I always think about, there's nothing minor about a minor brain injury.

JC: Ken Kolpan has served as the president of the Brain Injury Association of Massachusetts and concentrates his practice on traumatic brain injury. Ken, thanks for the time today.

KK: Joel, pleasure. Thank you.