Key Takeaways
- Brain injury damages start with the person's life before the injury, with vocational and economic experts projecting lost earning capacity and medical experts addressing life expectancy.
- To recover for an impairment such as memory loss, a plaintiff must connect it to a concrete disability, such as needing supervision to stay safe.
- A spouse and children can bring their own loss of consortium claims when a family member's brain injury damages their relationship.
How do you put a dollar figure on a brain injury? Can someone be compensated for lost memories, or for no longer being able to ski or play an instrument?
In this TalksOnLaw Brief, Joel Cohen talks with Kenneth I. Kolpan, a Massachusetts trial lawyer who concentrates on brain injury cases and a past president of the Brain Injury Association of Massachusetts, about how damages are proven in traumatic brain injury cases and the myths that often surround these injuries.
Building the Damages Case
Kolpan explains that he starts with the injured person's pre-morbid history: what the person was doing before the incident and what his or her future potential was. Vocational experts build a plan for the career the person likely would have had, an economist puts dollars on lost earning capacity, and a medical expert offers an opinion on life expectancy. When the defense argues that the injured person now has a shortened life expectancy, the response is that the shortened life is itself a consequence of the injury. In death cases, he notes, Massachusetts and other states spell out recoverable damages such as loss of consortium, conscious pain and suffering, and in some cases punitive damages.
Connecting Impairment to Disability
Asked whether memory loss alone can be compensated, Kolpan says the impairment must be proven and tied to its real effects. He describes a woman given the wrong medication and overdosed during a medical procedure, leaving her with short-term memory loss. She could not safely be left alone, so damages could include the cost of supervision and safety measures at home. He gives the example of a classical musician whose brain injury affected his performance, drawing the first negative review of his career.
Kolpan does not see the need to connect an injury to a disability as a failing of the system. For a lawyer, memory problems greatly affect the ability to work. Persuading jurors that a client can no longer do ordinary daily things is, he says, the art of these cases. Family members can also bring loss of consortium claims when a brain injury changes a marriage or a parent's relationship with minor children.
Myths About Brain Injury
Kolpan lists common defense arguments he considers myths: that there is no brain injury without loss of consciousness, when the definition requires only an altered mental state; that normal X-rays, CT scans, or EEGs rule out injury, when damage can be microscopic; that a blow to the head is required; that symptoms appearing a week or two later cannot be related, when a metabolic cascade can delay symptoms; and that everyone recovers. Finally, he explains that mild, moderate, and severe describe the initial injury, such as any loss of consciousness, not its long-term consequences. As he puts it, there is nothing mild about a mild brain injury.
What to Know Now
The framework Kolpan describes remains in place. Massachusetts recognizes loss of consortium claims by spouses and, under Ferriter v. Daniel O'Connell's Sons (1980), by dependent children, and its wrongful death statute allows punitive damages for gross negligence or willful conduct. When the defendant is a health care provider, Massachusetts caps general damages at $500,000 unless the jury finds substantial or permanent loss of bodily function, substantial disfigurement, or other special circumstances, an exception that serious brain injuries often meet.
