Unpredictability of the Brain-Injured Client

brainFor over 30 years, Don Corson has represented people who suffered brain injuries from industrial and utility accidents, medical negligence, and trucking and other major vehicle collisions. He presented his discoveries to the Brain Injury Alliance of Oregon, a coalition of medical and clinical practitioners, attorneys, researchers and service providers. This article appeared in Fall 2016 edition of Trial Lawyer and is reprinted with permission by the Oregon Trial Lawyers Assn (OTLA). He is a past president of OTLA and contributes to the OTLA Guardians of Civil Justice.

I could hear him bellowing as soon as I stopped my car in front of his home. Through the walls of the house came an explosive stream of expletives. The general gist of the man’s #!@+*% was he did not want me at his house. I knocked hesitantly on the front door. His wife opened the door, smiled, told me it’s been a rough day, but invited me to please come inside. I stood awkwardly in the living room while the agitated man was wheeled in by his caretaker. Within seconds, he was more like a kitten than a lion, and was happy to see me.

Welcome to the world of representing people with serious brain injuries.

Drug Overdose Leads to a Lifetime of Irreversible Brain Damage

Lee was in the wheelchair because he had been given an overdose of a powerful heart medicine. The overdose sent Lee’s heart quivering, a condition known as ventricular fibrillation. While the heart is quivering instead of beating, blood is not being pumped to the brain. The brain is the organ most sensitive to oxygen deprivation. Within a short time, parts of Lee’s brain suffered irreversible damage.

The drug overdose occurred during a serious but common surgery, one that was pioneered long ago here in Oregon. Patients getting this surgery generally have good outcomes with normal life expectancies. An OHSU epidemiologist, who later studied a decade of Oregon hospital records, found Lee was the only man in his age bracket to have suffered a brain injury during this kind of surgery — serious enough to send the patient to a brain rehabilitation facility afterward. Lee was also the only one to have an anesthesiologist give a massive overdose of a powerful heart drug.

I first met Lee a few weeks before his statute of limitations was to run, at the invitation of his original attorney, who had been on the case for almost two years and sought co-counsel for the case. The case had not been worked up and prepared for filing. We had our work cut out for us.

Working With a Brain-Injured Client

Unlike many other cases, a person with a brain injury may be difficult to work with because of the effects of the injury. The injured persons’ lives and those of their families have been changed to a devastating degree. These cases can be challenging for all involved. For some small examples, we’ve had cases where the brain-injured person did not show up some mornings of the trial. We had to have someone go to the person’s house, get him or her out of bed and provide transportation to the courthouse. We had a brain-injured client show up for trial in clothing that would not work in the courtroom. I loaned a shirt out of my office closet to cover for him. We have sometimes ended up driving brain-injured clients to their appointments, because they could not get there themselves, and no one else was available to do it.

I have been preparing and trying cases for people with brain injuries for many years, and they always affect me and my staff on a personal level. But no matter how hard it is on us or our staff, it is nothing compared to how hard it is for the injured person and his or her family.

I believe every case should be prepared for trial. The case may not go to trial, but it is essential to prepare the case as if it will be presented before a jury. Understanding what a person has lost is essential to preparing the case for trial.

The testimony of family, friends, co-workers, neighbors and acquaintances is one of the most powerful forms of evidence in any case for a brain-injured person. That testimony helps jurors understand what a person was like before the event, and allows jurors to compare that to how a person is doing afterward. The loved ones are the people who make the injured person’s story come alive. Both sides can hire psychologists, neuropsychologists, vocational experts, life care planners and neurologists. But only our side has the actual stories of life for the person before and after. Only our side has the human dimension.

Lee is a husband and a father of five children. He loved the Oregon outdoors. He took his family camping every year up in the Cascades. He came from an outdoor family, and he raised his own children to enjoy crabbing at the coast, fishing in the mountains, foraging for mushrooms in the forest and hunting deer in the fall. Lee loved his children and his grandchildren. Lee was a hard worker. His factory job was called machine operator, but it was much more. He was a troubleshooter, someone who could modify and adjust the machines, a person who was a mentor to younger workers and a trainer of new employees. Lee was physically gifted. A neighbor described how he told Lee he needed to move a car engine to the back of his pickup to take it to the shop, and Lee picked up the engine and put it on the pickup bed. When his six-foot-four adult son got sick, Lee picked his son up, carried him to the car and drove him to the hospital.