This article was first published in the Personal Injury Law Journal.
In this article I will examine the issues surrounding the choice of experts in catastrophic brain injury claims. I will write about what experts are reasonably required and in what order the experts should be instructed. We will look at the various expertise available and just what it is they do and how they can help the Court to resolve the issues.
The Consultant in Neurological rehabilitation
Every case is different but few cases will not benefit from an early opinion from a Consultant in Neurological rehabilitation. I generally believe that this will be the first expert in many cases to provide an expert report. Most are neurologists but not invariably so. If the Claimant has been subjected to brain surgery however you may wish to seek a report from a Consultant Neurosurgeon first of all. Most of all however you are seeking the following:-
- An assessment of the severity of the brain injury;
- The location of the brain injury. Is it diffuse or confined to a particular part or structure;
- The level of consciousness and post-traumatic amnesia (assuming consciousness has now been regained);
- The physical consequences of the brain injury. Limb movements may be non-existent or disturbed for either of two reasons. Either the limb is weak or the posterior frontal lobe has been damaged. Generally, damage to one side of the brain leads to motor problems on the opposite side of the brain. This is called a “hemiparesis” if the weakness is partial and “hemiplegia” if it is complete. The affected limbs tend to be spastic or stiff. This is because a healthy brain exerts inhibitory drive on the motor tracts. If the damage is bilateral and major then “tetraparesis” or “tetraplegia” results.
- The sensory consequences of the brain injury, e.g. loss of taste and smell, or blindness or deficits in vision, dizziness and loss of balance;
- The loss of Bulbar function. Tongue and throat muscles are necessary for speech and swallowing and symptoms here can be due to motor disturbance. Widespread brain damage can lead to spasticity of the tongue and difficulties with speech and breathing.
- The loss of sphincter function- Bladder and bowel control in serious brain injury cases will be compromised or lost.
Rehabilitation consultants lead and co-ordinate the neurological rehabilitation for patients with complex needs. The purpose of the report will therefore to provide a preliminary diagnosis of the severity of the injury and to map out an optimal pathway for the rehabilitation of the Claimant.
Imaging will have taken place at the hospital in the immediate post-acute period. The mainstay in the Accident and Emergency Department is the CT (Computed Tomography) Scan.
The NICE (The National Institute for Health and Clinical Excellence) guidelines suggest that CT scanning will be performed where the Glasgow Coma Scale score is less than 13 for adults or 14 for children, or less than 15 for babies. CT scans will reliably demonstrate fractures of the skull vault or skull base and macroscopic haemorrhage, extradural and sub-dural heamatoma, sub-arachnoid heamorhhage and haemorrhagic contusion in the brain itself. CT also detects arterial compression and brain swelling.
CT also involves a high radiation dose and is not as sensitive as MRI (Magnetic Resonance Imaging.) Neurosurgeons use CT scanning to triage the treatment of patients because it is readily available and not subject to complications such as the patient having metal inside their body which may be unknown in the acute setting.
CT scan is also useful for determination of the long-term prognosis and in determining what areas of the brain have been damaged.
MRI scanners generate images by the interpretation of the small signals generated from the tissues themselves when they are subjected to strong magnetic forces. MRI is much more sensitive than CT scan to subtle changes in the brain tissues and the presence of micro-heamorrhages. Susceptibility Weighted imaging particularly when combined with T3 or T4 imaging can provide a much more sensitive picture.
For these reasons, early interpretation of existing scanning and the potential for more scans can assist with the prognosis and treatment plan even where the Claimant is very seriously brain injured. Against this must be balanced the potential distress to a patient by having scanning performed. A good neuro-radiologist however can pick up changes on the scans which may be missed in a brief report in the clinical setting. It can help inform the views of the Consultant in Neurological rehabilitation or the Neurologist.
In the later stages of brain injury, a high resolution MRI can help to provide some objective evidence of the particular areas which have been damaged providing evidence of focal or diffuse injury. It is often very useful therefore to instruct a neuro-radiologist.
The use of a Neuro-psychologist may not be reasonably required in the most catastrophic cases of traumatic brain injury. Following very severe injury however there are likely to be marked changes in the claimant’s behaviour, emotional regulation. Often, the persisting symptoms where a good recovery has been made from severe traumatic brain injury are cognitive and emotional rather than physical. In those cases where the Claimant can engage with a neuropsychologist then the instruction of a neuropsychologist is going to be of great assistance to the parties.
The starting point is a clinical interview and invariably it must almost always be performed with the claimant on their own. Relatives or carers invariably interrupt or try to assist with the best of intentions. Observation of the Claimant is part of the skill in interpreting the neuro-psychological test results.
Plenty of time must be set aside for the assessment as they tend to be lengthy when done properly. There is also a common myth that 6 months must elapse between neuropsychological assessments. That is not usually the case and this is a myth which has persisted in medico-legal circles.
A typical assessment involves an interview with the Claimant, neuropsychological testing and then an interview with a spouse, relative or friend.
There are a number of tests but normally an assessment under the Wechsler Adult Intelligence Scale will be undertaken. This consists of around 15 different individual tests. The neuropsychologist also has to compare this with an estimate of functioning before the accident called the pre-morbid functioning. Usually these will have to be based on estimates taking into account qualifications, past occupations, and educational level. This is of course rather subjective.
The instruction of a neuropsychologist in catastrophic cases will therefore be highly desirable in many cases but may not serve a useful purpose in other cases. Much will depend upon the function of the Claimant.
The Neuro-psychiatrist is of course a medical doctor and can usefully opine upon mental capacity and the treatment of the claimant’s condition with medication. On the other hand they are less able to perform the full battery of neuropsychometric tests that a Neuropsychologist would be able to do.
The Neuro-psychiatrist will often provide an opinion on pre-morbid personality and any psychiatric problems before the accident, including genetic factors and family history.
After severe and very severe brain injury there is a period of inability to lay down new memories and sustain attention. Cognitive and behavioural difficulties usually follow.
A number of neuro-psychiatric effects may follow severe brain injury:-
- Depression often caused by a complex interplay of disrupted neuronal circuitry and neuro-chemical changes;
- Affective dysregulation- often resulting in mood swings and requires treatment with medication;
- Anxiety disorders- including General Anxiety Disorder, specific phobia, Obssessive Compulsive Disorder and Post-traumatic Stress Disorder.
- Apathy- lack of motivatiojn, impaired initiative and diminished interest and activity;
- Organic personality change and persistent change in behaviour.
These problems are within the province of the neuro-psychiatrist to report upon and this will mean that in most cases the instruction of a neuro-psychiatrist is going to be invaluable.
Once the evidence has been obtained as above, the Neurologist may be instructed to provide the overview bringing all the threads together from the various expertises instructed already. The Neurologist will be able to provide a prognosis for the future and set out the risk of epilepsy and dementia arising from the traumatic brain injury. The Neurologist will also be asked to provide a framework for the Claimant’s future prognosis and care needs in the future.
It may be perfectly acceptable to go back to the Consultant in Neurological rehabilitation first instructed to provided this report. Much will depend upon the circumstances of the case and the precise qualifications of the experts instructed.
The Neurologist should report upon the risk of future problems such as epilepsy and dementia.
The risk of dementia and Alzheimer’s Disease is now thought to be up to 4 times increase in the risk after severe traumatic brain injury. This creates difficulties that the law has yet to catch up with. These conditions are unlikely to constitute a serious deterioration in the Claimant’s condition justifying provisional damages. It is after all a gradual deterioration not sudden, not unlike arthritis. It is clear law that the onset of arthritis cannot justify provisional damages. Furthermore there are causation problems. Only in a limited number of categories of case such as mesothelioma does a material increase in the risk create liability.
Epilepsy risk however can justify provisional damages. Even here however if the Claimant is so badly off and already cannot work, will never drive, is immobile and has a 24 hour care package it is difficult to see how the onset of epilepsy will make much difference to the package required.
Life expectancy is increasingly going to have to be a clinically led decision for the Neurologists if the decision of Master Davison in Carol Dodds v Mohammed Arif and Aviva Insurance is correctly decided  EWHC 1512, 18th June 2019. In severe and catastrophic brain injury cases, life expectancy will normally be substantially reduced. This is going to have to be much more carefully considered and nuanced as the scope for actuarial evidence in such a case is probably reduced.
The Care Expert and The Occupational Therapist
Care in traumatic brain injury can range from the need to perform every physical function for the victim to light touch buddying.
The care expert will probably come from a nursing background or an occupational therapy background. The level of complexity of a claimant may justify only a nursing background particularly in severe cases with continuing physical care. OT’s are however skilled in the provision of Aids and Equipment and maximising rehabilitation potential and in many cases both expertises will be required.
The differing levels of care and support can be set out as follows:-
- Nursing care;- In the most severe cases with ongoing physical support needs;
- Support worker;- to provide structure and support and motivate;
- Buddy- a Social support network usually peer based often to prevent social isolation and enable the Claimant;
- Personal assistant- more administrative support, often part-time.
The care expert will use a number of techniques.
- Interview with the Claimant if possible and family and friends, case manager and treating team;
- Examination of the medical evidence;
- Examination of the witness statements and diaries;
- Examination of the treatment reports and case manager’s reports;
- Standardised tests;
- Task analysis;
The care expert will usually prepare at least two reports. An early preliminary report before the medical evidence is finalised and a report at the conclusion of the medical evidence to opine upon future care needs. Equipment needs may also be very extensive and will justify a separate OT instruction.
The case manager should probably not be present for the entire assessment however as this may influence the assessment and clearly, lawyers should not be present.
Pre-existing disabilities will need to be taken into account and an analysis of whether the care is qualitatively or quantitively different will need to be taken into account, see Reaney v University Hospital of North Staffordshire NHS Trust and Mid Staffordshire NHS Foundation Trust  EWCA Civ 1119. The Claimant had pre-existing paraplegia. She sustained pressure sores through negligence. She sought to recover damages for all of her overall needs. The Defendants argued they should only pay for the additional needs caused by the pressure sores. Mr Justice Foskett held that the Defendants were responsible for all of her care needs as her care was now qualitatively different than it would have been but for the negligence.
Care experts will always need to reassess the Claimant after the period of rehabilitation is completed.
The assessment of past care is also complex in such cases. Care experts will need to look to the witness statements any contemporaneous records and their experience in determining past care.
A common fault is to make reports overly complex and too long. That justified criticism in Harman v East Kent Hospitals NHS Trust  EWHC 1662. Reports should be focused on analysis and opinion of the author. There has become a tendency to repeat all the other reports sometimes at length. A recital that the expert has read those reports and a few lines as to the key conclusions they take away from them will suffice. It is reasoning that will persuade the Court not repetition of facts.
Care experts will need to consider the overall life of the Claimant and what is likely to happen to them in the future e.g births, marriages, deaths and contingencies and exigencies of life.
There are usually the following areas of disagreement in severe traumatic brain injury cases:-
- The level of case management;
- The hours of support or care required during the day;
- Whether night care is required or whether telephone support will do;
- The need for a second or third carer;
- Waking care at night versus sleeping carer;
- The level of aids and equipment required.
- Agency versus direct employment. Direct employment is usually more costly and complex but provides for better security and consistency of care in the long-term for a complex needs claimant.
Life expectancy- actuarial evidence.
There will need to be a clear need for actuarial evidence and specific evidence that this cannot be adequately dealt with by the clinical experts. The life expectancy of severe traumatic brain injury victims is often shortened. Strauss and others (1998) studied the long-term survival of children and adolescents after traumatic brain injury and found that the predictors of mortality were:-
- The ability to perform basic functional skills such as self-feeding and to move;
- At the highest functioning level, the loss of life was only around 3-5 years
- For those without mobility, who live 6 months after injury the average life expectancy was around 15 years.
Harrison-Felix found that there was an average reduction of 7 years for people with traumatic brain injury.
The largest study by Shavelle et al (2007) provides detailed data. However this was for American data and there is a difficulty in extrapolating that to the UK where life expectancy is longer than for the United States of America.
The Brooks et al. study (2015) provides evidence that life expectancy for people with traumatic brain and spinal cord injuries have not increased over the last 20 years. Current life expectancy figures are therefore potentially misleading.
In short, it should be possible with the correct evidence to persuade a Court notwithstanding the Dodds case that in an appropriate case life expectancy evidence is still reasonably required. The understanding of actuarial studies and how they relate to the Ogden Tables in particular is probably outside the expertise of most clinicians and is a more nuanced question.
It can be seen that the assembly of the right team of experts and at the right time is going to be crucial to the successful claim or defence of a traumatic brain injury claim. This will require the careful management of the expectations of the Court, a well-thought out schedule of loss by the time of the CCMC and a well thought out and planned budget.
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