What is a traumatic brain injury? When an individual's brain is damaged because of the actions of another, how is liability assessed? Boston, Massachusetts attorney Kenneth Kolpan explains to host, Joel Cohen, the basics of a traumatic brain injury and common causes in brain injury litigation. Kolpan provides examples involving car accidents, falling objects, sports, and trauma caused by violence. Kolpan discusses particular challenges to demonstrating liability in cases involving head injuries and shares insights on how negligence may be proven in a court of law.
Learn more about calculating damages for traumatic brain injury: Traumatic Brain Injury – Damages (Massachusetts)
Kenneth Kolpan is a lawyer based in Boston, Massachusetts who specializes in brain injury cases.
What Is a Traumatic Brain Injury?
A traumatic brain injury (TBI) can result from a blow to or an object through the head. TBI can also result from a jostling of the skull or body, common in sports concussions or shaken baby syndrome cases. Symptoms of traumatic brain injury can appear immediately after an event or a few hours to months later. Traumatic brain injuries may be mild, moderate, or severe. Depending on the injury, temporary to permanent brain damage may occur.
Common causes of traumatic brain injuries in brain injury litigation include:
Physical violence in negligent security cases
Slip and fall accidents
Liability in TBI
If someone suffers a traumatic brain injury as a result of another’s unreasonably careless or dangerous conduct, they may have a negligence claim. The injured party needs to prove the following:
The defendant owed them a duty of reasonable care,
The defendant failed to meet that duty,
The plaintiff suffered a traumatic brain injury, and
The defendant’s breach of duty caused the injury.
For example, in some sports injury cases, coaches or other authorities may be liable if they failed to properly evaluate the player’s injury and condition before sending them back to the field. In negligent security cases, the homeowners’ association may be liable if they failed to properly maintain the property or failed to notify the tenants or homeowners of a dangerous condition.
Demonstrating that the plaintiff suffered a traumatic brain injury can sometimes be a challenge. Traumatic brain injuries are not always readily apparent, and the full range of symptoms may not present until some time after the traumatic event. The injured party may have memory loss; they may not remember the events leading up to the head trauma (retrograde amnesia) or the events afterward (anterograde amnesia). Medical evidence of retrograde and/or anterograde amnesia can help prove the existence and severity of a traumatic brain injury.
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. Kenneth Kolpan is an attorney from Massachusetts. Ken, welcome to TalksOnLaw.
Kenneth Kolpan (KK): Thank you Joel.
JC: Ken, why don't we jump right in – what does traumatic brain injury mean? Is there a special legal definition?
KK: Well, trauma, what's interesting about traumatic brain injury, it could be trauma to the skull, to the face resulting in a jarring of the brain. But it doesn't have to be. If one understands the anatomy of the brain, the brain is sort of a gelatin-like substance sitting in a container that has sharp edges. If it's like gelatin, if you shake the head, then the brain moves back and forth and is subject to forces in all different directions and can be torn or sheared by sharp parts of the internal skull.
JC: So Ken, it doesn't necessarily mean that someone is hit in the head. It could be a sufficient amount of jostling or shaking of the brain in the skull.
KK: Exactly, so we think about an acceleration-deceleration type of injury. An example of that would be the shaken baby syndrome where an individual takes the shoulders of a young child or infant and shakes them violently without hitting their head. The brain is getting damaged. Also, it’s football season. In football, we have what are known as subconcussive concussions where, without blows to the head the head, by going back and forth violently, the brain inside is exhibiting that same type of rotation front back movement and getting injured as it bangs up against the inner part of the skull.
JC: I think for many of our viewers, the idea of a brain injury probably ranks high up in fears of things gone wrong. One of the things that you work on is not just proving that a brain injury exists but allocating blame generally speaking. How does one demonstrate liability for a traumatic brain injury?
KK: Well, one of the most important is defining the characteristics of the incident. So for example, there's a car accident and after the collision, what happens to the plaintiff to the driver is important and sometimes because they lose consciousness they're not the best historians. In order to prove what happened, one has to ask – not did you lose consciousness because a person who's conscious wouldn't know that need to ask what's their first memory after the incident. What was their last memory before the crash and then asked questions of witnesses of the police officers, what they remember coming upon at the scene. It's interesting to note in a traumatic brain injury, there'll be a difference between what the injured person remembers and what in fact happened.
JC: So that can help identify whether a traumatic brain injury occurred?
KK: Correct, and what we're talking about in medical terms is anterograde amnesia/retrograde amnesia. What's your last memory, what's your first memory? And that helps to diagnose and prove a traumatic brain injury.
JC: Ken, maybe now's a good time to do a quick survey and you can pull from cases you've worked on or cases you've seen. What are some common causes of traumatic brain injury, at least common causes that are seen by courts.
KK: Sure, perhaps the one people are most familiar with are car accidents or objects falling from heights and striking people. I represented a young man who was walking down one of the streets in Boston and he was hit in the skull, but what was ironically known as a safety bar. It had fallen off a piece of scaffolding 120 feet and struck them in the side of the head which the defense considered a glancing blow. Now if it weren't a glancing blow, I think we would agree the man never would have survived. He was stunned; he didn't know what had happened and witnesses testified and that he kept on asking them. What just happened? What happened to me? And in his particular situation, unfortunately for him, the signs and symptoms of his traumatic brain injury dramatically impacted his work at a financial institution. We then took the case a little bit further and had some neuropsychological testing performed on him and it showed in one particular area he was having great difficulty with math. He had preserved areas all over his brain except that the areas that dealt with computation were greatly affected and in his situation dramatically limited what he could do as far as employment. So that was car accidents, falling objects, anything else? There's a concept about second impact syndrome. What that means is if someone playing a sport sustains a traumatic brain injury the brain needs time to heal, and if he or she sustains another brain injury before it's healed, we have a second impact. And it's not just that the brain injury is two times as worse. It's exponentially worse, and so when we look at athletic cases, we look at what we call “return to play” guidelines. Was the injured athlete evaluated properly on the sideline? Did they follow the protocols? Did they pull him or her off into the medical tent, have someone ask appropriate questions of the athlete. Not “Do you want to return to the game,” because all athletes will say, yes, but questions like “Do you know the score,” “Do you know where you are,” “Do you know what just happened?” So you’re evaluating whether they're doing what is needed to protect his brain and let it recover before they return him to play?
JC: And those rules have been codified in some states even in the high school or middle school levels?
KK: Correct, correct. I had a recent case of a young man who had sustained a traumatic brain injury in practice and we alleged it was because of multiple headers that he was instructed to do at the behest of the coach and the next day he suffered a traumatic brain injury when he headed a ball from the keeper. That was the last time he ever played the game.
JC: Well, as a long time soccer player I can tell you, there are certain times and maybe some of our viewers will consider me a wimp, but there are certain times of year, maybe certain weather conditions. I can remember the keeper kicking a long ball in the rain. The ball is cold and soggy and heavier than normal and you're expected to take it out of the air with your head, and yeah I remember feeling dizzy afterwards sometimes.
KK: Well I do too, and I played in high school as well. I’m quite a few years older than you are, but what I think we've learned now is that that ball is traveling pretty fast. The forces are pretty strong even with proper technique. If that's done repeatedly, we're going to get the jostling of the brain inside. Now each brain injury is different – you're correct. In part because of the person's makeup, their personality, their comorbidities that they bring, let's say, to the game – the strength of their neck what exercise they've done. There's actually research comparing female soccer players to male soccer players, and female soccer players disproportionately sustain concussions in soccer when compared to males.
JC: I imagine the data will continue to come out on that, but it may be related to skull size or skull thickness or something entirely different?
KK: Correct. Correct.
JC: All right, so that's sport, car accidents, falling objects, how about straight up violence?
KK: Sure, you know what, when we think about that, we're talking about victims of violent crime, the one I'm thinking about is a negligent security case involving a client of mine who was assaulted in a condominium where he resided, and he was struck by a fellow renter in the condominium association. The man sustained a very severe brain injury because the assailant took a metal bat to him. Now what made this case challenging was that this unfortunate victim went into a coma. He lived for an additional nine months before passing away. Now what's the negligence? What's the liability especially where you no longer have the victim to testify to whatever memories he might have before or after? The theory in the case, and it resolved because of this, was the condominium's association's failure to notify and warn the 600 owners and renters that an individual had moved into the community that they were aware of was a recently released felon and a level three sex offender.
JC: The defendant was not the perpetrator of the crime but the condo association itself?
KK: Yeah, the case was brought against the condo association, it's board and in our state it's known as its trust, and you're bringing it against the trustees who are not individually liable for it and they carry insurance for that. I think your viewers might be interested to know that in many cases, particularly negligent security cases, you don't bring the case against a perpetrator against a criminal defendant, unless he or she has significant or sufficient assets. So we look for a third party in negligence security cases. Were the locks broken? Did they fail to maintain the place knowing that there's a danger? Did they fail to inform renters or owners and again partly because it's not every perpetrator who also has deep pockets to pay for these, what can be extremely high costs? That's correct and I was involved in represented one of the families whose father and husband was allegedly shot by Aaron Hernandez the former Patriot and there are certain situations where you sue the perpetrator directly, but what you're seeking is compensation the purpose of which is to provide the victim with appropriate treatment to compensate him or her for their future losses. So you want to identify the appropriate defendant against whom you can prove the case who has sufficient assets and or insurance to cover the claim.