Richmond Virginia Personal Injury Lawyer - Head & Brain Injuries - Most Commented

An Open Letter to the American Association for Justice: Reactivate the Trial Lawyers Care Volunteer Project to Help Brain-Injured Iraq War Soldiers

Michael Phelan — Mon, 12 Mar 2007 10:48:26 GMT

I read with disgust the latest news account of how the Pentagon is failing to provide necessary medical care for soldiers who suffer brain injuries in the Iraq and Afghanistan Wars. Largely because of the improvised explosive devices used by Iraq insurgents, traumatic brain injury has become the signature wound of the Iraq War. In an article titled, "For War's Gravely Injured, Challenge to Find Care," the New York Times reports that brain-injured soldiers are either written off prematurely by the Veterans Administration hospitals or not given aggressive rehabilitation options for care. The criticism of the VA, which was echoed on the Sunday morning talk shows by former Senator Bob Dole, is the government should have joined forces with civilian brain-injury treatment rehabilitation centers in time to care for these soldiers.

The NY Times article focuses on the story of Staff Sgt. Jarod Behee, who was shot in the head during his second tour in Iraq. The VA hospital in Palo Alto, California told Sgt. Behee's wife "that Jarod was not making adequate progress and that the next step was a nursing home." The hospital staff issued Sgt. Behee a wheelchair , and believed he would never walk again. Mrs. Behee said, "I just felt that it was unfair for them to throw in the towel on him. I said, 'We're out of here.'" So, Mrs. Behee quit her job, fought the Army's efforts to retire her husband into the VA health care system, and discovered that his military insurance policy actually covered private care [a fact not presented to her by the government]. She moved Sgt. Behee into a private rehabilitation center, and,three months later, her husband was walking. Sgt. Behee has permanent cognitive impairments, but is working in the rehab center as a volunteer.

Today, I sent a letter to the President of the President of the American Association for Justice asking him to reactivate the Trial Lawyers Care program (TLC). TLC was organized by the Association of Trial Lawyers of America (now American Association for Justice) to mobilize volunteer trial lawyers to assist families of people killed or injured by the 911 terrorist attacks. Volunteers like myself represented the families in their claims for compensation under the September 11th Victim Compensation Fund of 2001. This was the most rewarding work in my professional career, and I'm sure all of the other TLC volunteers felt the same way. I'm also sure the same volunteers would line up to help our brave soldiers. I call on my fellow trial lawyers to join me in beseeching the American Association for Justice to reactivate Trial Lawyers Care!

Originally posted at InjuryBoard by Michael Phelan

Hold Your Child Out of Sports Following a Concussion

Michael Phelan — Tue, 05 May 2009 15:24:28 GMT

I know many well-meaning parents who are guilty of allowing their child to be rushed back into contact sports following a concussion. Whether the concussion is suffered in a car accident or a sports-related incident, the same issue typically arises- the child wants to go back to sports immediately after getting checked out at the hospital. I know enough about mild brain injury to know this is usually a bad idea, particularly for children who have had multiple concussions. I've often struggled with the internal debate between not wanting to interfere with another family's decision and knowing that one can suffer mild brain damage that may not show up on the hospital CT scan. I now have a new study to cite to fellow parents.

Using a computer-based training program created to assess athletes with concussions and determine when it was safe for them to return to sports, researchers at The Children's Hospital of Philadelphia followed 116 children at an urban Level 1 trauma center over two years. The tests revealed an alarmingly high rate of cognitive deficits in nearly all patients during initial testing. The program tests specific abilities, such as attention span, memory, nonverbal problem solving and reaction time. Almost all patients tested below the 25 percentile in at least one area; the majority demonstrated significant impairment for all four subtests.

The test also assesses the degree of concussion symptoms, and the majority of children with concussions demonstrated an abnormal symptom score. The follow-up group demonstrated significant improvement in neurocognitive performance on all four subtests as well as an improvement in their symptom scores. Prior research has demonstrated that children are more likely to sustain another concussion if they return to sports or exertional activities prematurely. In addition, high school athletes recover more slowly than college or professional athletes. Presumably the same is true for children with concussion from non-sports related causes.

The authors of this study recommend that a qualified healthcare provider perform a formal assessment after hospital discharge and before a concussed child is allowed to resume exertional activities, particularly contact sports. The referenced article appears in the May issue of the journal, Annals of Surgery.

Originally posted at InjuryBoard by Michael Phelan

Experts Not Permitted to Testify Plaintiff is Faking or Exaggerating Symptoms

Michael Phelan — Wed, 02 Dec 2009 11:21:33 GMT

A written opinion issued earlier this month from the United States District Court for the Eastern District of Virginia, Richmond Division slams shut the door on the defense practice of hiring a medical expert to accuse the plaintiff of malingering, symptom magnification, being motivated by secondary gain, having somatoform disorder or any of the other names used by defense doctors to imply that injured plaintiffs are faking or lying. In Kidd v. Wal-Mart Stores, Inc., et al., Civil Action No. 3:09CV264, Magistrate Judge M. Hannah Lauck ruled that even if a medical expert possesses sufficient psychological expertise to offer expert testimony as to whether the plaintiff evinces symtom magnification or somatiform disorder, the Court would not permit the experts to opine whether the plaintiff has such disorder because "[s]uch testimony far too easily invades the province of the jury or comments on the credibility of the Plaintiff."

One often sees in defense neuropsychological reports opinions along the lines that the plaintiff's complaints have a functional component, are motivated by secondary gain, represent symptom magnification or malingering, etc. I make it a practice to move to exclude such opinions as being the type of testimony the goes to the truthfulness or credibility of a witness and invades the province of the jury. See Pritchett v. Commonwealth, 263 Va. 182, 186-187, 557 S.E.2nd 205, 208 (2002). Virginia state trial courts have been receptive to this argument, and it is good to see the federal district court following suit.

Originally posted at InjuryBoard by Michael Phelan

NFL Concussion Policy: a Very Slow Work in Progress

Michael Phelan — Tue, 24 Nov 2009 14:36:43 GMT

With every new round of concussions in the NFL, it seems to me that the press and the NFL react as if dangerous concussions were a new issue in football. The multitude of stories about the brain damage, alzheimers-like symptoms, memory loss, depression, and suicidal behavior of former players like Andre Waters, Mike Webster, Tim Johnson and others get swept under the carpet as the NFL takes its predictable stance of delay and double talk on the issue of brain injuries. And, with the exception of the New York Times series on brain injuries in the NFL, the sports media typically looks the other way. Until now. Sports Illustrated's Ann Killion has written a piece in her Inside the NFL column accusing Commissioner Roger Goodell of business as usual just as he announced a new policy requiring teams to consult with independent neurologists following a concussion to one of the teams' players.

Ms. Killion cites the cases of the two quarterbacks who played in last year's Super Bowl. The Steelers' Ben Roethlisberger left Sunday's game against the Chiefs after taking a blow to the head and suffering concussion-like syndromes. But by Monday reports out of Pittsburgh described the Super Bowl winning quarterback as "fine" and capable of playing this week. Arizona's Kurt Warner also left his game against St. Louis after his head slammed into the turf. But the Cardinals are "optimistic" Warner will play this week. This, despite the fact that Big Ben suffered a serious head injury in a motorcycle crash and Warner suffered multiple concussions in the past. Ms. Killion concludes that "[t]he culture of denial and quick turnarounds runs too deep in the NFL to be changed by a commissioner's mandate."

This SI column follows a recent article in The New Yorker, in which Ira Casson, who co-chairs an NFL committee on brain injury, said he isn't sure what the solution is. "No one has any suggestions -- assuming that you aren't saying no more football, because let's be honest, that's not going to happen," he said.

Commissioner Goodell's new policy addresses an issue that has long been part of the problem in the NFL: the onflict of interest posed by leaving the decision about when a concussed player should return to full contact to a doctor employed by the team and the league.

Ms. Killion points out that the culture of denial trickles down to college, high school and youth football. Every day, coaches and administrators struggle with medical issues far beyond their capability. At Cal, Jahvid Best has been sidelined for two weeks after suffering a horrific end zone collision and concussion. In Florida, Tim Tebow -- who, in September, was knocked out cold and carted off the field vomiting -- hasn't missed a game (the Gators had a bye the week after Tebow suffered his concussion). But some observers think he hasn't been the same since.

On high school fields around the country, kids are carted off with concussions every week. In New Jersey last year, a junior linebacker was cleared to play after suffering a concussion. He suffered another hit, which ended up killing him. His parents are suing the high school and their doctor.

The violent hits are celebrated. The early returns to the field are deemed courageous. The head traumas of star players are underplayed.

The NFL sets the tone for it all. Commissioner Goodell took a step forward this week. But there's a long way to go.

Originally posted at InjuryBoard by Michael Phelan

The Walking Wounded: PTSD Victims

Michael Phelan — Mon, 26 Jan 2009 09:45:54 GMT

The term "walking wounded" has long been used to describe victims of traumatic brain injury, who may appear healthy but have permanent cognitive, psychological, and other symptoms from brain damage. The term is now being used to describe the American troops in Iraq who are returning from combat duty with post-traumatic stress disorder. These brave men and women face daily the risk of death by roadside improvised explosive devices or suicide bombers. It is not surprising that many are returning home with PTSD.

What is not know is how many of our troops are affected by PTSD. The Army conducted a survey in 2006 and concluded that 17% of soldiers and marines surveyed suffered from PTSD. A Rand study put the number at 14%. The New York Times reports today on a new mathematical model by Lawrence W. Wein, et al. which estimates that "about 35% of soldiers and marines who deploy to Iraq will ultimately suffer PTSD -about 300,000 people, with 20,000 new sufferers for each year the war lasts." This is a staggering number.

Perhaps one of the few good things to result from this tragic war will be that our government and private physicians will take more seriously this disorder, be more vigilant about diagnosing it, and help to reduce the stigma that is attached to mental health referrals for treatment. Studies show that proper PTSD care can lead to complete remission in 30-50% of cases. The above-referenced Rand study estimates that treatment would pay for iteself in two years. The very least we can do for our combat vets is to make sure that each is properly screened upon departure from combat duty for PTSD and brain injury and then properly treated.

Originally posted at InjuryBoard by Michael Phelan

Criticism of Defense Malingering Test Gaining National Traction

Michael Phelan — Sun, 20 Apr 2008 19:38:23 GMT

On March 5, 2008, I criticized the use by professional defense neuropyschologists of a controversial malingering test called the Fake Bad Scale. See Fake Bad Scale: Weapon of Defense Neuropsychologists, http://www.injuryboard.com/members-area/BlogPost.aspx?blogid=372&postid=232632. In that blog, I pointed out the fact that the test was designed so that a person with traumatic brain damage and/or serious physical injuries was likely to fail the Fake Bad Scale (FBS) and be deemed a malingerer or faker.

I was interviewed by Sylvia Hsieh of Lawyers Weekly USA who has since published an excellent article on the topic. Click here to read Sylvia's article on the Fake Bad Scale. http://www.lawyersweeklyusa.com/index.cfm/archive/view/id/430456

Ms. Hsiegh correctly points out that the FBS is biased against women, the disabled (including physical and cognitive disabilities), and those suffering from post-traumatic stress disorder. Thanks to the good work of trial lawyer Dorothy Clay Sims, a Hillsborough County, Florida court ruled that the FBS was "not an objective measurement of effort, malingering, or over-reporting of symptoms."

Perhaps the most outrageous use of the FBS has been against wounded Iraq war veterans and defense contractors. Ms. Hsiegh reports that the FBS has been used in suits brought under the Defense Base Act against returning Iraq war contractors who claim post-traumatic stress disorder. I've also read about the FBS being used against war vets to deny coverage or treatment for claimed brain injury symptoms caused by brain damage suffered during roadside explosions. Our government should not be using this bogus test to demean our brave soldiers!

Originally posted at InjuryBoard by Michael Phelan

Controversial Chairman of NFL's Committee on Concussions Resigns

Michael Phelan — Thu, 01 Mar 2007 12:17:35 GMT

Dr. Elliot Pellman, a rheumatologist, whose qualifications as the 13 year chairman of the N.F.L.'s committee on concussions have been questioned by brain injury experts, resigned Monday. His resignation follows recent articles in the New York Times about the devastating effects of concussions on retired football players and a October 2006 ESPN The Magazine expose which criticized the committee's research. Dr. Pellman has no background in neurology. In January 2005, Pellman and Dr. David Viano, a biomechanics consultant, published in the journal Neurosurgery an article advocating that team physicians allow players to return to the same game in which the player sustained a concussion. Unfortunately, the N.F.L.'s response to Pellman's resignation was to appoint Dr. Viano as co-chair of the committee along with Ira Casson, M.D., a neurologist.

Dr. Pellman remains on the committee and is the team doctor for the Jets and the N.H.L.'s Islanders. One has to wonder why the N.F.L. chose a person with Pellman's lack of credentials to lead a group allegedly devoted to researching traumatic brain injuries. According to an article in today's New York Times:

Two years ago, the Times reported that Pellman had exaggerated several aspects of his medial education and professional status in official biographical sketches and a resume prepared for an appearance before a Congressional panel. At the time, he was chief medical advisor to Major League Baseball in addition to his role with the Jets and the Islanders.
The false statements included a claim to have a medical degree from the State University of New York at Stony Brook, when he actually attended medical school in Guadalajara, Mexico....

Since becoming co-chair of the brain injury committee, Dr. Viano contradicted his article in the journal Neurosurgery by saying that the committee does not imply that its research is relevant to high school players. The 2005 journal article specifically concluded that it might be safe for high school concussion victims to return to the same game in which they suffered the concussion. The Times quoted Dr. Robert Cantu, chief of neurosurgery and director of sports medicine at Emerson Hospital in Concord, Massachusetts as saying,

"I find it very worrisome...they say one thing in one place and in another place other things...they're going against a ton of peer-reviewed, very well scrutinized, multiple academic research centers...and their science is very suspect."

The bottom line appears to be the N.F.L. continues to stick its head in the sand with respect to the long-term effects of traumatic brain injury. Despite the publicity surrounding the suicides of retired players with histories of brain injury (e.g., Terry Long, Mike Webster, and Andre Waters) and cases of chronic depression and brain injury symptoms (e.g., Teddy Johnson), the N.F.L. blew the opportunity to replace Pellman with a patient advocate. Dr. Viano is not even a medical doctor! I suppose that the N.F.L.'s behavior is no surprise. Any one who watched Bob Woodruff's recent report on ABC about the care that brain injured Iraq War veterans are receiving from the Veteran's Administration would be appalled by the cavalier attitude exhibited on the show by VA Secretary Nichols.

Originally posted at InjuryBoard by Michael Phelan

Bob Woodruff Family Fund for Traumatic Brain Injury

Michael Phelan — Sat, 24 Feb 2007 16:00:19 GMT

In 2006, ABC News Anchor Bob Woodruff was an embedded journalist in Iraq. Mr. Woodruff sustained a severe traumatic brain injury (TBI) when an improvised explosive device blew up the military vehicle in which he was riding. Some good for other TBI victims is going to come from Mr. Woodruff's tragedy. The Brain Injury Association of America (BIAA), Mr. Woodruff, and his family have teamed up to raise awareness of brain injury and to administer the Bob Woodruff Family Fund for TBI, a fund created by the Woodruff family to help veterans of the wars in Iraq and Afghanistan who suffered brain injuries. The fund will make grants to organizations serving vets who've sustained a TBI. March is Brain Injury Awareness Month, and Woodruff plans to report on ABC throughout the month on brain injury. He also agreed to serve as honorary spokesperson for BIAA. Dan Rather once used the word "courage" as a gimmick to increase ratings. Bob Woodruff epitomizes courage.

Originally posted at InjuryBoard by Michael Phelan

Another Former NFL Star Says, "There's Something Wrong With My Brain"

Michael Phelan — Fri, 02 Feb 2007 09:16:09 GMT

Middle linebacker, Ted Johnson, was the captain of the New England Patriots in 1998 and 2003, and helped the Pats win three Super Bowls before retiring in 2005. According to a story in the New York Times, Mr. Johnson now

forgets people's names, misses appointments and...can become so terrified of the outside world that he locks himself alone inside his Boston apartment in bed with the blinds drawn for days at a time.

Mr. Johnson told the Times,

"There's something wrong with me. There's something wrong with my brain. And I know when it started."

Ted Johnson's brain injury started in August 2002 when he suffered a concussion in a preseason game against the Giants. He now believes that Pat's Coach Bill Belichick went against the team trainer's medical advice and rushed Mr. Johnson back into full contact practice drills. Johnson sustained another concussion two days later and suffered more concussions over the next three seasons, each of them exacerbating the previous brain injury.

Mr. Johnson's neurologist, Robert Cantu, M.D., said he was convinced Johnson's cognitive impairment and depression "are related to his previous head injuries, as they are all classic postconcussive symptoms," and that "they are most likely permanent." In fact, Dr. Cantu said: "Ted already shows the mild cognitive impairment that is characteristic of early Alzheimer's disease [which]...relentlessly progress over time...[such that when] he's in his 50's, he could have severe Alzheimer's symptoms."

Mr. Johnson's brain injuries have not only caused him to suffer depression, loss of memory, and diminished cognitive abilities, but have also ruined his marriage. He has a two year old and one year old child, and he and his wife are getting divorced. Mr. Johnson attributes the decline of his marriage to the behavior caused by his concussive symptoms and resulting addiction to anti-depressants. Mr. Johnson decided to go public with his story when he read about Andre Waters, the former NFL star who committed suicide last November and was later found by a forensic pathologist to have had significant brain injury caused by concussions suffered during his career with the Eagles. I blogged about Mr. Waters's tragic case earlier this month. The NFL needs a strong director of the NFL Players Association and Gene Upshaw is not that man. The coaches are making too much money and are under too much pressure to win to be trusted to put a player's health first. The Players Association must step up and do what is necessary to prevent more cases like Ted Johnson's, Andre Waters's, and Mike Webster's, and to ensure that the league provides the brain injury rehabilitative services that these players need. Right now, the league is clearly turning its back on the players.

Originally posted at InjuryBoard by Michael Phelan

Coping with Brain Injury During the Holidays

Michael Phelan — Mon, 23 Nov 2009 21:06:03 GMT

For victims of acquired brain injury, the time of year that once brought great joy may now be the most difficult time of year. Brain injury victims often struggle to cope with, among other sequelae, memory problems, obsessive compulsive behaviors, an aversion to loud noises, big crowds, and bright lights, decreased communication skills, and special diets. Imagine the terror of tying to cope with these issues while being expected to attend holiday parties and large family functions.

I read a wonderful piece in the Augusta Free Press advising brain injury victims how to cope with the holidays. Some suggested ways for making the holidays fun and less stressful for all, particularly when persistent cognitive /behavioral issues are problematic include:

1. Holiday shopping should be a fun activity and indoor malls are weather controlled and safe places for strolling on foot and/or for those wheelchair or walker assisted. However, the holiday period can make shopping less than a fun activity without preplanning. Start early to avoid the holiday crowds and use the opportunity to incorporate cognitive exercises into the planning. The individual with brain injury should make a list of gifts to be purchased or hand made, when possible, suggested gift ideas and estimates of costs associated with the gifts.

2. Catalogs that come in the mail this time of year are wonderful for gift ideas and also for estimation of prices. Take some time to sit down and look through a few as part of the independent planning phase.

3. Make out a simple budget before going to the bank and allow your family member with brain injury as much control of the funds as possible even though money management skills may be impaired.

4. Place greater emphasis on use of journals or calendars to record routine events as well as holiday activities. Schedule a week in advance, with a daily review to make note of any changes as they come up. Those accustomed to a daily routine may be better prepared when special dates and activities are written in the journal and/or on the calendar in colored ink for emphasis.

5. Each day, during the holidays, orient the individual by discussing the day’s activities over breakfast to avoid misunderstandings about changes from the normal routine. It is helpful to repeat this information several times during the day for those with severe memory problems.

6. If bright or flashing lights bother your family member and/or possibly trigger seizures, carefully plan any additional lighting that will be used during the holidays and avoid laser holiday lighting displays.

7. Crowded places and loud music may also bother some individuals and should be taken into consideration and monitored, if necessary.

8. Food is a big part of holiday fun and many of the foods may be very temptingly displayed. Parties, holiday family dinners, and open house gatherings are often scheduled at times that do not coincide with routine mealtimes, thus, presenting a problem for those whose mealtimes are more rigidly scheduled. You may want to offer a light snack at the regular mealtime to “tide him/ her over” until the main meal, or make whatever adjustments are necessary. For those with more severe cognitive deficits, which interfere with appropriate food intake, it may be necessary to help with monitoring to avoid overeating. It is very common for damage in the hypothalamus area of the brain to interrupt signals to the brain which help the individual know when their appetite has been satisfied, thus, many with brain injury need help with quantity control monitoring. Additionally, memory problems and attention can derail a persons resolve to watch their food intake to avoid excessive food and beverage intake. After a brain injury burning of calories may also be changed and individuals who could eat anything and everything before the injury may need to more diligently watch calories to avoid weight gain.

9. By all means don’t forget that increased activity during the holidays may be more fatiguing than usual so plan rest periods accordingly. This is particularly important when cognition and behavior are problems. Fatigue often increases confusion that can result in an outburst or other kinds of unpleasant behaviors.

10. Structure can be your best strategy for ensuring the entire family has a higher quality of life. Initially it takes effort to get the structure in place but it pays dividends in the end. Flexibility is a key word during the holiday season but planning and preparation will hopefully result in a happy holiday for family and friends.

Next comes New Year’s resolutions! Start thinking about ways your entire family can enjoy life more fully, fulfill the demands of your caregiving role and provide the best possible quality of life for your family member with brain injury.

Most of us take these simple pleasures for granted. As the father of a young adult with who suffers from the effects of brian injury and someone who represents victims of acquired brain injury, I know the importance of structure and routine in my child's life. There's nothing like the holidays to disrupt this routine.

Originally posted at InjuryBoard by Michael Phelan