What Should I Do If A Family Member Suffers A Brain Injury In West Virginia?

A serious brain injury can change the whole trajectory of a life, and the people closest to the victim often ask, “What do we do?” They may have real questions about the victim’s competence and whether the victim will need a guardian or conservator. However, the first step is to determine whether the victim truly suffered a brain injury and, if so, how serious it is.

If you’re going to claim that someone suffered a brain injury and that it has caused suffering and ongoing effects, you’re going to have to prove it. So, how do you prove it? That’s the first legal question to address.

Proving The Existence Of A Brain Injury

To prove the existence of a brain injury, you want your evidence to start at the beginning with the injury-causing event:

•      Did the victim hit his or her head?
•      Was there a sudden acceleration or deceleration?
•      Did the victim lose consciousness?
•      How did the victim appear at the scene?
•      Were CT scans or MRIs performed and what do they show?
•      Has the injured person demonstrated cognitive or personality changes?

You might get an early picture of the injury from the first responder’s reports. The first responder or EMS report may, for example, describe the victim’s initial appearance and actions and include other information like  a Glasgow Coma Scale score. This is used to measure or score how fully conscious a person appears to be based on verbal, motor and eye responses. Anything less than a 15 may indicate a brain injury, but sometimes if the score is a 15, the narrative of events may not match the score.

After a solid picture of the incident that caused the injury, you will want a combination of different types of evidence:

•      School and/or work records     
•      Medical evidence
•      Expert testimony
•      Testimony from family, friends and co-workers

To make sure you get things right, you want to track the injury through the time of treatment and beyond. Did anyone perform a CT scan? Was it normal or abnormal? How does the recovery process go? Do the victim’s friends and family members report any changes? Many times, it’s the victim’s friends and family who first notice the subtler emotional and behavioral changes associated with a brain injury.

With brain injury cases, you really have to investigate these things and drill into the details. You’re going to want the opinions of experts. You’ll want a neurologist and possibly other experts like neuroradiologists, physiatrists, and life care planners  to look at the case. In some cases, a neuropsychologist may be asked to do specific testing to assess the injury.

Assessing The Severity Of A Brain Injury

Brain injuries are typically characterized as mild, moderate or severe. Still, any injury to the brain can be significant, so even a “mild” brain injury can have a long-lasting impact.

Multiple criteria are used to assess the severity of brain injuries:

•      Loss of consciousness  
•      The Glasgow Coma Scale
•      Results of neuroimaging tests
•      Results of motor and sensory tests
•      Changes in mental state and cognitive function

It can be difficult to figure out exactly how these criteria shape the dividing lines between the different categories of brain injury severity, but it may help to think about them in general, nonmedical terms:

•      Mild brain injuries often allow for a full or very nearly full recovery after a number of days or weeks. Concussions are one type of mild brain injury. However, despite the fact the victim of a mild brain injury may appear to make a full recovery, there is research to suggest that even mild brain injuries increase the risk of developing conditions like Alzheimer’s.
•      Moderate brain injuries are likely to have ongoing effects. After a moderate brain injury, the victim may be able to carry out some daily living activities but may need help with others. Similarly, a victim may be able to continue working but may need to request workplace modifications.
•      Severe brain injuries are where the victims will typically need a guardian or conservator, or both, to help out and handle their affairs. These injuries are usually self-evident. They tend to involve clear signs of injury on CT scans, long hospitalization periods and then time in a rehab home before the victim can transition back home with help.

Although they do not fall into a separate category for severity, pediatric brain injuries have some peculiar issues. For example, it is hard to know if a child, especially a young child, is having trouble speaking if that child has not yet learned to speak.

When these injuries occur before a child is reasonably expected to have certain milestone skills, you have to watch them and track their progress carefully. It is almost as though children who suffer brain injuries will grow into their deficits. The key is to compare their progression up to the point of injury against their progression afterward. As a result, pediatric brain injury cases are highly influenced by expert testimony.

Moving Forward

Most brain injury cases are for people who suffer moderate or severe injuries. Their family members have real questions about the victim’s competence after the injury, and they may wonder if they need to establish a guardianship, conservatorship, or both. This leads to  threshold questions about the victim’s abilities to care for himself/herself and manage their own affairs. A hearing will be required for a determination of whether  the victim actually needs a guardian or conservator.

If the court decides that, yes, the victim needs a guardian or conservator, that can be helpful with the brain injury case because the court has already judged that the victim is unable to handle his or her own affairs (i.e. needs a conservator) and/or needs help with self-care (i.e. needs a guardian). If the victim needs help in managing their affairs, the person serving as a conservator would bring the claim on the injured person’s behalf.

And that is, generally, how you move forward with a brain injury case. You explore the issues. Is there a brain injury? How significant is it? How has it impacted the victim’s ability to work and perform daily activities? How else has it impacted them? These are the questions at the root of the claim, and if the victim is unable to handle their own affairs, someone else will have to bring the claim for them.