Traumatic Brain Injuries

In this episode, Josh and Aaron dive into the realities of concussions and traumatic brain injuries—how they’re diagnosed, misunderstood, and what they mean for long-term health and recovery.

 FVF Law is a well-credentialed, overwhelmingly 5-star reviewed personal injury law firm in Austin, TX. FVF strives to be the educational resource for the injured, available to guide those with questions about what comes next. It is FVF’s mission to ensure clients are prioritized and informed throughout the injury claim process, and to secure the best possible outcome. Josh Fogelman and Aaron Von Flatern founded FVF Law to offer a different kind of injury law firm, and a dignified alternative in the marketplace. They hope to show injured Texans that consulting a lawyer after an injury is a natural, and responsible thing to do.

Transcript

0:00:00.0 Josh: Hey, Aaron.

0:00:00.6 Aaron: Hey, Josh.

0:00:01.7 Josh: Hey, man. Have you ever gotten your bell rung? 

0:00:03.2 Aaron: Yes.

0:00:04.3 Josh: Tell us about it.

0:00:05.2 Aaron: Which time? 

0:00:07.0 Josh: The first time.

0:00:08.3 Aaron: Don't remember.

[laughter]

0:00:11.7 Josh: So obviously, you know, growing up I played sports. I assume you played some... I know you played some sports too. We used to talk about concussions.

0:00:23.4 Aaron: Yeah.

0:00:23.5 Josh: Pretty, pretty loosely and didn't really give too much importance to them. We used to use that term. Oh, he got his, he just got his bell rung when in reality what was happening when our, you know, friends were getting knocked out at football games was they were sustaining mild traumatic brain injuries in the form of a concussion.

0:00:42.0 Aaron: Yeah. I actually had a chance to depose one of the world's foremost neurologist and he referred to it as a concussion. And I asked him, well, is that a fourth category? And he's like, what do you mean? I said, well, I understand that all brain injuries are either mild, moderate, or severe. And he said, that's right. I said, well, it's concussion, a fourth category. And he says, no, that's mild traumatic brain injury. So concussion. And then I kind of further asked him like, well, what is concussion? What does that mean? Why do you use that term? And he said, basically, because pop culture uses it.

0:01:15.1 Josh: Yeah.

0:01:16.9 Aaron: The neurologist basically categorize everything into mild, moderate, or severe, traumatic brain injury. And so if we had gone around when we were kids, talking about our traumatic brain injuries, our parents probably would've paid more attention.

0:01:30.9 Josh: Absolutely. You would think so. You would hope so.

0:01:33.8 Aaron: It's like I just concussed.

0:01:34.1 Josh: Some of our parents, would've probably paid more attention. But, you know, in recent years, concussions have started to get really the attention that they deserve as, you know, being something worth talking about, and really something worth preventing, in life. And we start, we're seeing a lot more attention given towards protective equipment and thought given by parents to whether they're gonna let their kids play certain sports like tackle football or even soccer with, you know, header after header after header. Of course, we obviously have seen, maybe a decrease in certain sports, you know, boxing and all these.

0:02:19.2 Aaron: Yeah.

0:02:20.7 Josh: All these different, all these different activities that people engage in that raise the risk. And what I wanted to talk with you about today, since you have a lot of experience in learning about and developing cases involving brain injuries, is how do... Now that we know more about the severity of even a mild traumatic brain injury like a concussion, how do we as personal injury lawyers who are frequently asked for advice by clients or potential clients about how to handle their case where they have sustained a concussion or at least a suspected concussion or worse, how do we take this, historically sort of difficult to quantify type of injury and help our clients get a better understanding about what the short and long-term consequences of the brain injury, are likely to be, and turning that into a positive outcome for our clients in terms of helping them recover for that injury? 

0:03:33.7 Aaron: Yeah. I consider this a huge responsibility for us, because when you look at the brain, there's two reasons I feel that way. One, it's a highly suggestible injury. You know, if I tell you, if you come to me with having had a significant closed head injury or something like that, and I say, well, hey, have you been forgetful lately? You'd start to think about the time you put your keys in the refrigerator and you're like, yeah. You know, and it's like, did you ever forget where you park? You're like, oh, yeah. And then you're like, do you forget people's names sometimes at parties? And it's like, yeah. And then it's like, well, I've got this big brain injury. And the truth is that, you know, we all have mental lapses. And those mental lapses increase dramatically during times of stress. And what could be more stressful than having a car crash that injures you in other ways? 'cause typically our brain injured clients are not just injured in the brain.

0:04:28.1 Josh: Sure, of course. Yeah.

0:04:28.8 Aaron: You know, they've got like shoulder surgery or back surgery, something like that. And maybe their family members are also suffering, and maybe they're not making income because of they're not able to be employed and their car is stuck in a body shop and they're in some rental that's not big enough for their kids. And like, the stress is just mounting. And so brain injuries are, you don't want to tell them that they don't have one, because if they do have one, you gotta figure that out.

0:04:55.3 Josh: Right.

0:04:55.4 Aaron: And it is tricky. It is really something that the best neurologists in the world have trouble fully assessing, and all they can do is try to categorize you. And the categories, again, are in these, these, like mild, moderate, severe, and then within those, there's all these subcategories of like, well, for your, for your mild traumatic brain injury, you know, say 80% of them are gonna heal up in eight weeks. And then the rest of them develop into this nebulous world of post-concussive syndrome, which can go on indefinitely. And 15% of those cases go on for past a year. And then, you know, they can morph into other, or they can bleed over into other problems.

0:05:42.3 Aaron: Like for example, if you've got a brain injury that's causing you to underperform at home and in your work and in other areas of your life, that can lead to depression or it can lead to anxiety, both of which can disrupt your sleep, which can lead to further cognitive declines. And I've had defense experts admit to me that although they were arguing our client wasn't brain injured, they were not arguing that our client wasn't suffering from real symptoms that all stemmed from that original brain injury, they basically had to admit that because that is what happens. And for us, figuring out where to send them, you know, where to where to help them get resources is especially challenging because there are not enough neurologists in the world.

0:06:40.4 Josh: Especially those that are, you know, we talk a lot to our clients about how the medical providers in their case stand at some point to be called to testify about their opinions of what the injuries are and what the long-term consequences of the injury are. So finding people who have enough experience, to be that sort of forward thinking and be willing and prepared to advocate in some way by way of just showing up to testify. If we have a shortage of that, it can be problematic because obviously that's can be a super important part of a client's case, particularly if the client's primary complaint is a mild traumatic brain injury. So how is a mild traumatic brain injury or a concussion diagnosed? 

0:07:37.5 Aaron: Well, first I want to add onto your point about, 'cause the listeners may think, oh yeah, there's some neurologists who are, you know, kind of busy and there's some neurologists who can testify and write reports or, you know, help you out in that way. It cannot be overstated what shortage we have of neurologists who are able to fully, you know, diagnose and then report back, who are willing to give that time because they're in such short supply. This is gonna sound nuts, but I'll tell you, I am aware of one neurologist who if you call them to testify in trial, will send you a bill for $50,000.

0:08:17.6 Josh: Wow.

0:08:18.5 Aaron: That's their price, and it's a go away price. Let's face it. They're just like, they're losing so much money from clinic, from hospital, from the other research they're doing and all that, you know, it's really not worth their time to help your client or, you know, to write a report that expresses what all is going on with your client, you know, or to show up and give testimony under oath as to what is medically probable.

0:08:42.1 Aaron: So you know, before we get to like, how do you diagnose it, the first problem is how do you find somebody to diagnose it? Right? And that's one of those things where as lawyers, we are not steering treatment. We're not telling you, you have to go to this guy or you have to go to that guy. But it is expected of us that we will have ideas.

0:09:03.3 Josh: Sure.

0:09:03.8 Aaron: You know, our clients, we're injury lawyers, our clients are injured, and they're like, where do I go for this brain injury? And so we are definitely, aware of which neurologists you can get in to see quickly.

0:09:19.3 Josh: Sure. And also, you know, through the years of doing this and working with different doctors and physical therapists, we've get to develop an understanding of who's doing great work in the medical community and who's doing less than great work in the medical community. And if a client asks us for their advice on who they should consider going to see, whether it be for a neurological problem or brain injury, or a orthopedic injury like a back and neck injury, our responsibility is to help steer them to the best medical providers that we are aware of.

0:09:51.9 Aaron: Yeah. And I think one of the things about our firm that I've always loved is we have a track record of personally going to some of these doctors or sending our family members who don't have cases to see doctors that we know are competent and thorough and care.

0:10:07.2 Josh: Sure.

0:10:07.7 Aaron: That's kind of the main thing is the concern level. But once you get there and you have a brain injury, how does it get diagnosed? Well, it depends on if it's in that mild, moderate, severe, if it's, if, you know, moderate and severe, it's a pretty high bar. You know, you get there when there's an abnormal finding on a CT scan, IEA brain bleed. So if you go into the ER and you've got an active brain bleed, you're bumped up into that moderate group, and it's pretty scary to be in that group.

0:10:36.4 Aaron: Severe would involve like intrusion into the brain where something has pushed through the brain pan and actually is pressing on the brain, or has, you can visibly see it's kind of changed its structure. The mild stuff is of course, a misnomer. You know, when you talk about a mild cognitive deficit, you're still talking about changing someone's brain. If you change the brain, you're changing the person. And you know, since antiquity humans have held the brain sacred. It's who we are. You know, the brain and the heart. That's really what humans are. And so mild is a tough term for us to swallow, but that's, you know, that's what the neurologists use.

0:11:22.6 Josh: Compared to an actively bleeding brain or an actively visible damage to the structure.

0:11:30.6 Aaron: Yeah.

0:11:31.4 Josh: A mild traumatic brain injury or a concussion is something that you might not be able to readily identify on the scan on some sort of MRI or CT scan, but nonetheless is causing symptoms in the form of fatigue or confusion or memory loss or speech impairment. A whole host of symptoms that the doctors can look at and say, okay, well, even though we don't see this specifically on the imaging, we know that because you've checked boxes A, B, C, D, and E, you can be a confirmed... You have a confirmed diagnosis of mild traumatic brain injury or concussions. That kind of how that works.

0:12:12.0 Aaron: That's right. Yeah. So an MTBI, mild traumatic brain injury, you know, to me is just a brain injury. Because if you have someone who can't do what their job requires them to do, that's pretty severe. For their life. But it is called mild. The diagnosis for that, you've talked about for moderate and severe, what can be the triggers for that, but for the MTBI, your diagnosis is gonna stem off of, you know, post-traumatic amnesia, disorientation at the scene or loss of consciousness. So if one of those three is present at the time or within like a day or two of this event happening to your client, then that's gonna be, and what we look for as lawyers, it's evidence of that. Right. Because, a lot of times you'll have witnesses at the scene, but a lot of times you don't, you know, people are alone in their cars most of the time when they get hit.

0:13:05.7 Josh: Yeah.

0:13:06.5 Aaron: So what I look for is, and of course I'm not the neurologist, but what I'm listening for is I talk to these people, are these like gaps in time? You know, I was driving this way, I felt, you know, I got hit. And then, I remember people knocking on the door to try to open my door to get me out. And there's this gap in time that either where they were disoriented or they've got post-traumatic amnesia, or they lost consciousness, or all three. So that is what hooks you into having a concussion. And then once you've got a concussion, there's a question as to whether that will develop into post-concussive syndrome or not. But beyond that, what's important for us to be in tune with is the fact that brain injuries have such a severe impact on a person and their psyche, that they can have, what's called adjustment disorder.

0:14:00.0 Aaron: Not to mention PTSD, that can happen from a severe and traumatic event. But just the fact that someone is diagnosed with a brain injury can sometimes play out in these terrible consequences like we talked about earlier, where someone's losing sleep and they're still suffering bad cognitive deficits. And it's also important to be listening for evidence of hormonal deficits, which can look exactly like a brain injury in terms of difficult... Difficulty concentrating, difficulty with working memory, you know, difficulty prioritizing tasks, quickness to anger, quickness to weepiness. All kinds of symptoms that look like a failure of executive functioning can actually come back to a hormonal deficit, which can then signify, a problem in the pituitary gland or the pituitary stalk more specifically, from which the pituitary dangles from the brain subject to stretching.

0:15:06.2 Aaron: You can have capillary death and people who have been in these closed head injuries, their brain can heal up fine, but they'll, they'll go sterile or they'll stop growing if it happens to a child, for example, because growth hormone or testosterone is affected. Oxytocin, it can be affected. And these things, you know, that's the love hormone, the trust hormone, these things can wildly affect your personality, and it can take neuro-endocrinologist years to suss out what exactly happened there. So coming back to the beginning, that's why I feel like when someone comes to us and says they have a brain injury, it just feels really heavy for me as a lawyer. Like, oh, this is important.

0:15:49.1 Josh: Well, it's important to have a roadmap, right? And this is what you've done such a thorough and great job of talking about today is understanding that like any other injury, I mean, we deal with back injuries and spine injuries and other orthopedic injuries all the time, and people heal differently. And it impacts different people in different ways. And you can't look at an injury day one and say, okay, well this is what this means for you long term. It takes time, and it takes a person's commitment to treatment and diagnostics to really get the full picture of what that looks like for them long term. What's the roadmap? And the same is true for even a mild traumatic brain injury. The sooner that you can start taking a look at all the different layers of the onion that might unfold throughout a person's life, the better you'll be able to develop an action plan and help navigate the client through the medical process in a way that answers questions.

0:16:54.0 Josh: Like, is this going to have a long-term impact on my quality of life? Is this gonna have a long-term impact on my ability to earn a living? Is this going to have a long-term impact on my relationships with other people or my physical health, my sleep? And those are questions that can be answered. It can be complicated. And not every, fortunately not every case will leave that sort of a lasting impact on a person, but when they do, it's really important to have counsel by your side that can make sure that you're answering those questions, helping the clients get access to the best diagnostics and the best medical care possible. And then ultimately figuring out a way to quantify what those harms and losses are so that you can get the best result possible for your client, which is, of course, what we as a law firm are dedicated to doing.

0:18:00.5 Aaron: Yeah. You know, having our, having seen this a bunch of times, you know, I could tell you the normal progression is sort of the neurologist refers someone for neuropsychological testing and then develops a treatment plan around that. That usually involves some form of cognitive behavioral therapy, sometimes some supplements, sometimes some dietary changes, definitely some sleep recommendations. And, in the background, at least we at FVF Law, you know, we're doing kind of a little bit of the opposite of what people might think we're doing. We're coaching our clients that the way through this is an optimistic mindset. The way through this is to, you know, focus on the therapies and the things you can control.

0:18:44.4 Aaron: And if you ever see us in trial on a brain injury, I can promise you it's not [laughter] It's real. Because we have done everything we can to convince that client that they can get better and to try to get them better. You know, holding them to their appointments, making sure they're doing all the work that's necessary. It's hard work to get better, getting the sleep, tracking the sleep if we can. And so if we get through all that and we're still standing in front of a jury talking about a brain injury that's still ongoing, I promise you that is a very serious situation.

0:19:16.1 Josh: So obviously you've done a lot of research and spent a lot of time learning about brain injuries, and I know you've handled many of them in our firm very successfully. You know, not all personal injury lawyers or law firms are created equally, and not all lawyers and law firms provide the appropriate attention to detail and helping to diagnose a person's, mild traumatic brain injury and really develop and understand the long-term consequences of that. Can you help us understand why it's important for people who might have suffered a concussion or a mild TBI to not just choose any lawyer, but to choose a lawyer who actually has the experience in that world? 

0:20:12.8 Aaron: Yeah, I think experience is a good word because it takes experience to get exposed to the level of expertise that defense law firms bring to bear with their experts to try to convince a jury that your client is not brain injured, or that their brain injury was minimal. And so when you've been through that fire over and over, you start to realize what's important and what's not. You start to be able to distinguish between diagnostics that are valid and those that are kind of like snake oil. You know, there are tons of tests out there, "tests". In fact, there are tests online that our viewers and listeners can listen... Can go check out right now that, you know, may or may not be beneficial. They certainly wouldn't pass through the gauntlet that we have to get through to prove up a case to the court's standard.

0:21:14.1 Aaron: Remember, the court has a gatekeeping function on expert information coming in. Testing that you did online is not gonna come in testing that hasn't been validated with peer-reviewed you know, studies is not gonna come in testing that's not being used in the field by practitioners on a regular basis that hasn't been found to be reliable, is not gonna come in. And so having a lawyer who's not going for all these shiny objects, but is focused on the actual science of the brain injury, not pretending to be a doctor, that's not what we're trying to do.

0:21:46.4 Josh: Sure.

0:21:47.1 Aaron: We're trying to make sure that as we interact with the neurological world, that diagnoses and treats these injuries that we do so as smart consumers of that, you know, that medicine. And so being able to ask the right questions is certainly something that some law firms do well and others don't. And I've definitely seen a lot of waste in terms of expense where law firms are hiring experts at astronomical costs who ultimately either don't have an impact on the real question or their whole body of work is inadmissible in court. So yeah, it makes a big difference.

0:22:28.9 Josh: Yeah. I remember being a, a green lawyer, early in my career when I was first exposed to kind of battles of the experts. So a lot of people don't know in personal injury claims, you have your experts providing their opinions, and then the defense who you're... The insurance companies go and hire their own hired guns who provide opinions that contradict your doctor's opinions because they wanna minimize the extent of the injury. And the first time, first few times you read the defendant's expert reports, which you get during the litigation process, you can read them if you don't really understand the medicine and the principles of that particular area of medical practice, when you first read those expert reports, it can be overwhelming because, they sound so good.

0:23:25.9 Josh: But if you have taken the time to really educate yourself in the concepts of that practice area and understand those indisputable truths about certain diagnostic studies, about certain potential likely outcomes, and understanding that no two people necessarily react the same or recover the same, that there's a lot of opportunity to take those defense experts to task and expose the bias that they have when they're formulating their opinions that are designed to harm your case.

0:24:07.6 Josh: So having someone who can speak that language, and really dissect the defense expert's opinions and break them down and show the jury that these opinions aren't genuine, these opinions are bought and paid for, that's an incredible advantage to have in an advocate. And someone who's willing to take the time and effort and energy, or who has done it before can literally make a difference of six figures or seven figures, maybe even eight figures and the outcome of your case. So choosing your counsel wisely is something that we always would encourage the listeners to do.

0:24:44.1 Aaron: And for anyone listening who thinks, oh, well, the plaintiffs have bought and sold opinions as well, I just wanna make a quick distinguishment. I mean, we're talking about experts who have a physician patient relationship.

0:24:57.6 Josh: Right.

0:25:00.0 Aaron: With our clients, on our side. And then we've got experts who are paid to make an opinion.

0:25:06.3 Josh: Right. That have never treated.

0:25:10.3 Aaron: And have never made anything less than an A plus in their lives. When they're given a task, they're going to get an A plus on it. So the defendant calls them, pays them, says, do the job, they do the job, and the job is usually to try to minimize what this patient and physician have, you know, concluded over here. So, yeah, I think having a lawyer that has been through that, again, just going back to experience, it really matters to have, you know, just having a lawyer that is going to be skeptical and help you to be a smart consumer.

0:25:41.9 Josh: Yeah. Well, we hope if you're listening in that you found some of this information useful. If you're a person who's been hurt and are concerned that you've sustained a mild traumatic brain injury, obviously there's resources out there available for you. If you're just an interested viewer, you know, hope this helps and provide some information for you to help guide you forward.

0:26:06.4 Aaron: Yeah. Thank you, Josh. It's good talk.

0:26:08.3 Josh: Yeah. Thanks for listening.