Natasha Richardson’s Tragedy Should Teach Tort Reformers about the Serious Consequences of Head Injury

One of the best parts about being a lawyer is that you get to learn things.  You learn about engineering principles.  You hire the top experts on the world on issues related to causation factors between injury and outcome and biomechanic.  And if you do anything in the injury area, you learn that mild brain injury is the most egregiously bad labeling of a diagnosis ever.  Mild brain injury is a misnomer because:

"These injuries sometimes cause lifelong disabilities."

"There is no such thing as a mild head injury. It's a misnomer," said Vani Rao, director of the Brain Injury Program at Johns Hopkins Bayview Medical Center and a neuropsychiatrist. "Go to the emergency room immediately and get a complete evaluation."

"Despite controversy surrounding the concept of mild head injury (MHI),
it is becoming evident that even a head trauma termed 'mild' may result
in significant behavioural sequelae. The present study was an attempt
at documenting structural cerebral damage, by way of computerized
tomography, in a group of patients having suffered a MHI as defined by
the Glasgow Coma Scale (GCS) score. A 1-year retrospective chart review
identified 80 MHI patients who presented to the Emergency department of
a lead hospital for trauma. Sixty-six per cent of these MHI patients
were scanned. Evidence of intracranial abnormalities was obtained in
31% of the overall sample. Patients with a lower GCS score had a higher
percentage of abnormal scans than those with a GCS score of either 14
or 15. The present findings suggest that a MHI can be associated with
significant morbidity, and that a MHI group does not constitute a
homogeneous pool of patients."

Being an attorney can be frustrating.  But believe me, hourly billing is nothing compared to the tragedy of tort reform.  It’s not like there weren’t frivolous lawsuits.  Of course, there were.  Of course, there is going to be waste in government spending. These things are obvious.  Anyone who uses them for fodder of argument is either stupid or being manipulative.  What they don’t tell you is there are just as many, perhaps even multipliers more, defendants who are responsible for causing injury who shirk that responsibility by nothing more than claiming “tort reform.”  In short, they run over someone in the crosswalk and then blame it on someone else.

Mild brain injury is one of those accident outcomes that causes our health insurance costs to go through the roof.  And because of the difficultly in diagnosing mild traumatic brain injury, many people who are completely disabled from participating in work and many pleasure activities can’t come up with the medical support to link their “mild brain injury” which is contested as junk science by defendants, and most of the time don’t even get to talk to a jury. 

Ms. Richardson’s accident is unusual in that she died.  It isn’t unusual in that a mild head strike causes catastrophic results for which we don’t have the science to fully explain why.  Sure, we know the dynamics of pressure on the brain, but we don’t know the dynamics of sheared neurons between brain cells.  We can’t see in the brain at that level.  We can’t cut the brain open to see what kind of damage has gone on inside.  Thus, we can’t say for medical certainty that the car accident caused all of the changes that everyone sees in the victim of the crosswalk pedestrian run over in her prime.  And don’t forget, this could be a mother of five.  It could be a father, the breadwinner of the family.  But they get no compensation in 90% of the incidents.  Their lives are catastrophically destroyed.  And the defendant says it was the sun while denying that they were in fact talking on the cell phone.

When you’re a lawyer, you get to learn what insurance companies do when these tragic events occur.  They’ve got teams of doctors who are paid by insurance companies to issue expert opinions that the plaintiff isn’t injured at all. 

It’s fortunate that Ms. Richardson’s family was not financially dependent on her in any way.  Her tragedy is one of a family loss and, of course, a loss of talent and contribution.  But now imagine she was your neighbor.  Now imagine her husband just lost his job as a result of the automotive collapse.  Now imagine tort reform. 

I do a lot of mass tort.   As a result of our blogs, our firm represented the largest block of Crown Princess cruise ship accident victims of any firm in the country.  Someday, I’ll tell you how we made that happen.  Our block of clients represent millions of dollars in recovery for people who were emotionally and physically harmed by being on a cruise ship that listed 21 degrees, emptying the pools and causing every single person on board the ship to think they were going to die.  But ours are not contested liability cases.  We don’t have to spend a lot of time fighting with the defendant about who is responsible.  We’re lucky.  I give credit, but I don’t envy, the personal injury lawyers who have suffered through this era of so-called “tort reform.”  They battle against judges who, most of the time, ruled it.  The plaintiff doesn’t even get to stand in front of a jury of their peers as provided in the U.S. Constitution.  But even when they do get there, they face a jury which has been inundated with hundreds of millions of dollars of marketing and lobbying money going to convince average citizens that the now debunked theory that their insurance rates have something to do with injury litigation. 

But enough of that.  When you are feeling sad during the day because Ms. Richardson’s life was needlessly cut-off short by a combination of accident and personal responsibility (including the failure to wear a helmet), remember that most mild brain injury people live and because they are some small percentage of 1% of the population, they have no voice.  They hope for other people in the future to not have to go through the pains of litigation because insurance companies simply want to take their cases up on appeal where republican judges stand ready to simply throw out all personal injury litigation jury verdicts.