Brain Injury Cases in North Carolina Courts
More than one million people in the US each year sustain a traumatic brain injury (or TBI). There are nearly 200,000 people in North Carolina with traumatic brain injury. A brain injury can be sustained in an automobile accident, or from being struck by an object, such as a golf ball. It can also be caused by medical malpractice. A TBI can be a devastating injury. In addition to purely cognitive problems (e.g. memory, concentration, processing speed), persons with TBI often have behavioral problems (e.g. irratibility). These injuries are often difficult to handle because there are often no visible signs of brain injury. Handling a case involving a brain injury raises several complicated issues.
One issue facing a person with a TBI in North Carolina is establishing the nature and extent of the injury. This is often done by various cognitive tests, which can ascertain the subject’s ability in various areas, and can sometimes confirm a brain injury. The test results can also sometimes be compared with previous tests, or previous performance levels (e.g. grades or standardized tests). In some cases, imaging can corroborate a brain injury, or at least that significant trauma to the head occurred.
Another issue in TBI cases in North Carolina is determining the future limitations and needs for a person with a traumatic brain injury. A person with a head injury may need ongoing cognitive testing, special education, assistance with employment, counseling, and prescription medication.
Legal issues surrounding brain injury cases in North Carolina include the following: whether the plaintiff’s doctors, psychologists, and other experts are qualified to testify as to causation and other issues; the effect of a prior brain injury; the difficulty of determining the plaintiff’s prior cognitive level; the significance of MRI’s or other scans that are negative (i.e. do not show objective evidence of a brain injury).
The following is a list of cases that have been litigated in North Carolina involving brain injuries.
- In a case decided in 2001, a jury awarded more than $1.5 million to a child who sustained a skull fracture in a car accident. The child was two at the time of the accident. She presented expert testimony that she would not be able to attend college. The plaintiff presented several experts who said that the child sustained a brain injury, and the defendant presented multiple experts contesting these conclusions. The court held that the evidence was sufficient to establish a traumatic brain injury, and loss of future earnings.
- In a case tried in Durham in 2005, the jury awarded $500,000 to a boy who sustained brain damage when a large, heavy door fell on him at a retail store. The boy had learning disabilities prior to the accident.
- In 2004, a jury in Fayetteville rendered a verdict of $2.5 million to a woman who fell to the floor during a mammogram and sustained skull fractures. She sustained cognitive deficits, in addition to other injuries.
- In a case from 1998, from Mecklenburg County, a jury awarded $900,000 to the plaintiff who sustained a traumatic brain injury. The appellate court ruled that testimony by the plaintiff’s neuropsychologist, along with the other records submitted, was sufficient to show that the automobile accident caused the brain injury. The plaintiff’s vehicle collided with a truck that ran a red light at forty miles per hour. The plaintiff was not fully oriented after the accident, and lacerations showed that he struck his head. Neurocognitive testing revealed attention and memory deficits consistent with an injury to the brain’s temporal lobes, and the plaintiff had depression consistent with traumatic brain injury. An expert in vocational evaluation testified that the plaintiff was reading on a seventh grade comprehension level, even though he had attended college. Lay witnesses testified that the plaintiff had been a go-getter before the accident, but he was late to work and tired after the accident, and was inefficient. He also had trouble focusing and concentrating, and was not the same person. The plaintiff testified that he had frequent headaches and visual problems, and had difficulty concentrating and remembering things. The MRIs and CT scans, however, were normal.
- In a workers compensation case from 1970, the employee worked as a cab driver. His passenger struck him in the head with a pipe, fracturing his skull. Portions of his brain (occipital lobe) had to be removed, and he had an extensive hospital stay. The dispute was whether the employee was permanently and totally disabled from working. The worker’s primary problem following his recovery was that he could not control his temper. The court ultimately ruled that this change in behavior was sufficient to render the worker permanently disabled under workers compensation laws.
- A case from Buncombe County in 1990 raised the issue of a pre-existing brain condition. In this case, the plaintiff’s vehicle collided head-on with a tractor-trailer. The plaintiff was in a coma, and a CAT scan revealed a blood clot or a hemorrhage in the brain. There were cuts to the face, but no skull fracture. The hemorrhage was removed during surgery. The doctor also discovered and removed a blood vessel abnormality (arteriovenous malformation), which was congenital. He suffered brain damage. The parties disputed the role of the abnormality in causing the hemorrhage (with the defendant arguing that the hemorrhage occurred spontaneously). The appellate court ruled that the jury should have been instructed on the “thin skull” rule, which generally holds that the defendant is liable for the plaintiff’s injury even if the injury is greater due to a pre-existing condition.
- In a case from 2007, a jury awarded a plaintiff approximately $17,000 in damages, which included compensation for a brain injury. The defendant appealed, and argued that the testimony of a neuropsychiatrist should have been excluded. In particular, the defendant argued that doctor should not have allowed the Plaintiff to take the psychological exams home. The court held that this did not invalidate the doctor’s testimony. The court also rejected arguments that the doctor failed to adequately investigate the accident and other medical records. Further, the court held that it was permissible for the doctor to assess the plaintiff’s pre-accident cognitive level based on the plaintiff’s education (graduating college) and profession (corporate executive).
- A case tried in Charlotte in 2011 involved the effect of a pre-existing brain injury. The jury in this case awarded $1.3 million for the injuries. In this case, the plaintiff fell four months before a car accident. In the fall, she sustained a head injury, which was still resolving. She was then struck in the rear by a truck, which totaled her vehicle. MRI’s of the brain before and after the car accident showed no changes. She returned to work, but was fired a few weeks later. The parties disputed whether she sustained a head injury. She claimed that the accident resulted in cognitive impairments, including memory and concentration difficulties, executive function losses, and that she could not multitask. She claimed an inability to work due to problems with fatigue, concentration, and memory loss.
- In a case that was arbitrated in 2010, the plaintiff was awarded approximately $1.5 million for a mild traumatic brain injury. The plaintiff was struck head-on. He claimed that he had cognitive and emotional impairment, which disabled him. He also claimed ongoing headaches, anxiety and depression. The defendant disputed the injuries, and claimed that the plaintiff was exaggerating the injuries.
- In a case from 2009 from McDowell County, the jury awarded $2.5million to the victim of a car accident with brain injuries. She was struck by a vehicle traveling in excess of 100 miles per hour. The CT scan of head was negative. She had extensive physical injuries.
- In a case tried in Winston-Salem in 2007, a jury awarded more than $10 million to a child who sustained brain damage as a result of medical malpractice. The doctors had caused bleeding into the spine and brain. The minor had damage to his right hemisphere, resulting in memory and reasoning deficits, in addition to other problems.
John Kirby has represented clients with traumatic brain injury (or “closed head injury”), and has defended several of these claims in litigation. He obtained a recovery of more than $1,000,000 (one million dollars) for the victim of a car accident, caused by a driver who ran a red light at forty-five miles per hour and T-boned the victim. He has defended a claim where a motorist on a scooter fell onto the roadway, and where a victim was struck by a golf ball, in addition to other cases where the victim alleged a brain injury from an automobile accident in North Carolina. He has also received education specific to cognitive psychology, including the study of the anatomy and functioning of the brain. He has also represented persons sustaining post traumatic stress disorder (PTSD), and has defended against such claims.