In a serious injury case, it is common for there to be a dispute about whether an individual has sustained a traumatic brain injury with likely subsequent lifelong problems or whether they have suffered from a psychological reaction which, with appropriate treatment, could result in a full recovery.
This is an important argument because it can significantly affect the rehabilitation that is required to optimise recovery and the level of compensation awarded. The issue tends to arise when there has been a closed head injury (i.e. an injury which does not penetrate the skull).
The starting point is to review the notes and records and take a detailed history from the family member and, if possible, the injured person. There are three primary ways to establish, on the face of it, whether someone has sustained a brain injury:
- Radiology – if there is evidence of lesions on a CT and / or MRI scan, it is fairly conclusive evidence of a traumatic brain injury. A CT and MRI scans will show macroscopic damage, although not necessarily microscopic damage. Although an abnormal scan provides positive evidence of a brain injury, a normal scan does not necessarily rule out that one has been sustained.
- Amnesia – if the injured person does not have a clear and continuous recollection of events before (retrograde amnesia) or after (post-traumatic amnesia) an accident, it is indicative of a brain injury. Retrograde amnesia is of less importance as it does not correlate as well with severity and outcome as measures of post-traumatic amnesia do.
- The depth of the coma – if there has been a loss of consciousness, this is usually indicative of a brain injury. This tends to be measured by assessing the Glasgow Coma Score (“GCS”). Headway, on their website, describes GCS as “A score given to head injured patients starting immediately after the head injury to measure the degree of unconsciousness. A score of 7 or less indicates that the person is in a coma. A maximum score of 15 indicates that the person can speak coherently, obey commands to move, and can spontaneously open their eyes”.
The Mayo system is probably the most frequently used particularly in the context of litigation. This system to measure the likelihood and severity of brain injury was developed in 2007. A brain injury is diagnosed and classified as moderate to severe if one or more of the following criteria exist:
- death due to the brain injury;
- loss of consciousness of 30 minutes or more;
- PTA of 24 hours or more;
- worst GCS in the first 24 hours of 12 or less (unless explainable by other factors);
- one or more of the following: intracerebral haematoma, subdural haematoma, epidural haematoma, cerebral contusion, haemorrhagic contusion, penetrating TBI, subarachnoid haemorrhage or brain stem injury.
From a litigation perspective, if a brain injury is suspected but not clear-cut, my personal approach is to instruct a Consultant Neurologist quite early on, ensuring that they have the context from the family members such as whether there are cognitive deficits and / or behavioural problems or other emotional disturbance. If the neurologist rules out a brain injury, that is the end of the investigation.
The rehabilitation can then focus specifically on treating the psychological disturbance. If the neurologist opines that there probably has been a brain injury on the balance of probabilities, he or she will, in all likelihood, suggest that a Neuropsychologist assesses.
The Neuropsychologist can ascertain whether there is any cognitive deficits arising such as, for example, impacted memory, reduced ability to plan and concentrate, difficulty multi-tasking).
At this point, the recommendation is usually to implement some neuro-rehabilitation; this may, however, have a focus on treating the psychological component.
It is important to “unpick” what symptoms are caused by the brain injury and what symptoms are caused by the psychological disturbance.
The rehabilitation programme should focus on both components. In reality, a lot of symptoms have a dual cause. It is important to ensure that the psychological disturbance is treated.
If done successfully and there are still clear cognitive deficits and / or behavioural and emotional disturbance, it is clear evidence that the organic brain injury is causing those problems and that they are likely to be lifelong.
It is much more difficult to prove that issues are caused by a brain injury if recommendations to treat psychological disturbance, such as post-traumatic stress disorder, have not been implemented appropriately or fully. If that is the case, there is always the argument that the symptoms may improve when the recommended and required rehabilitation is implemented.
There have been a number of cases where the Courts have had to determine disputes between parties about whether the injured person has sustained a traumatic brain injury. In the case of Siegel – v – Pummell  EWHC 4309 (QB), the High Court specifically rejected the contention that because the Claimant had not suffered from a loss of consciousness, had a normal Glasgow Coma Score and did not have any lesions on a CT and MRI scans, he had not suffered from a diffuse axonal brain injury. The Claimant had proven that he continued to have a “cluster of symptoms”.
The Court considered the acute hospital notes, the mechanism of injury including whether there would have been a rapid acceleration / deceleration of the head (even without any blow to the head) and whether the cluster of symptoms is consistent with a Claimant having sustained a traumatic brain injury.
If the investigation is done properly and in a collaborative way, it can be determined relatively quickly whether there is an organic brain injury or not.
This takes effective communication, selecting the right experts at the right time, and collaboration with the Defendant team and all other stakeholders.
In the future, Diffusion Tensor Imaging, very sensitive MRI scans which can identify microstructural changes or differences, may be able to identify white matter damage which may narrow the scope for argument on these types of cases.
David is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.
Brain Injury Group – providing practical answers for 10 years
For the past decade, Brain Injury Group has been supporting people with brain injuries to access the right support for them, working with an array of law firms – alongside other service providers and case managers – to give a comprehensive offering of connections, advice and signposting to clients across the country. NR Times learns more
Tell us about the Brain Injury Group and its aims
Brain Injury Group was set up as a membership organisation for law firms with specialist brain injury claims teams, to promote the importance of instructing a specialist lawyer following a brain injury.
Our core values – to ensure that those affected by brain injury have access to the specialist support they need to help them receive the right rehabilitation at the right time and to support them to rebuild their life– have remained throughout our ten-year history. Our members can advise not just on claims, but also education, employment, family matters, continuing healthcare funding and the Court of Protection.
In addition to our website, which contains a range of useful information for the individual, families, and carers, we also offer support via telephone, email, and live chat on our website; not just to those who have a claim, but to anyone who has suffered a brain injury – if we cannot help ourselves, our aim is to signpost to services who may be able to.
We’ve also created a large directory of goods and services online, who can assist not just those who have sustained a brain injury, but the businesses who support them – so a one stop shop for goods and services from accessible holidays to specialist medico legal report providers, and much more in between.
Finally, we are recognised as providers of high quality CPD training, primarily for catastrophic injury lawyers, but also for case managers and therapists. We also provide free access to our training for the NHS and are happy to deliver bespoke sessions for them, which proved popular with neuro navigator teams in London. Our training covers a range of medical, legal and rehabilitation topics and we aim to deliver it in a neutral, friendly way, making it relevant to both claimant and defendant teams.
Who are your members?
Membership of the Brain Injury Group consists of three different streams; firstly, our law firm members who, in order to be accepted as members of the Group, must satisfy our joining criteria to ensure they really are specialists in the field of brain injury claims. Secondly, we have associate
members who provide supporting services to our law firm members, so for example medico legal agencies, IFAs and mental capacity assessors.
Finally, in 2020, we introduced our case manager membership which is actually open to residential rehabilitation facilities and therapists as well as case management organisations throughout the UK – we also have one member who is based in the Republic of Ireland. This has been our fastest-growing membership stream and we’re really pleased to be working more closely with so many excellent case management companies who have a particular interest in brain injury.
As part of their membership they receive free or discounted access to our training, allowing them to enhance their knowledge of brain injury, for
the benefit of their clients.
What are the benefits for a client of contacting Brain Injury Group rather than a law firm direct?
Firstly, we’re not a claims management company, so if a client contacts us, we are simply providing them with contact information of law firms who they can be assured are specialists in the field of brain injury.
This is so important as brain injury claims can be very complicated, and depending on the nature of the injury, can take many years to settle, so its important someone is confident in the abilities of their lawyer, and that that lawyer is experienced in this type of claim and is able to arrange the rehabilitation, care and support that person needs – not just for the duration of their claim, but for their entire future.
We always recommend people speak to at least three different lawyers before deciding to proceed. By contacting Brain Injury Group, just one call or email will provide them with details of three specialists, reducing some of the burden of researching firms at a time when there may be massive changes and stresses in their lives as they adapt to life after brain injury.
At the same time, we can connect them with organisations who can provide a free welfare benefits check-up or advise them on any employment issues that may arise, talk to them about continuing healthcare funding, or introduce them to a charity who can offer emotional support and may also be able to offer a small grant to assist with travel, accommodation, therapies, or the purchase of specialist equipment.
This service is provided free by Brain Injury Group and all our members will offer free initial advice to the general public who approach them via Brain Injury Group.
What does the future hold for Brain Injury Group?
During the pandemic we moved all our training online which has proven very popular, and whilst our webinars will continue, we really hope people will be happy to return to meeting in-person at events – we have held a couple of events recently which were very well received and attended, so we are hopeful.
We’re keen to continue to develop our membership further and introduce a training programme specifically aimed at case managers, which will run alongside our main training for catastrophic injury lawyers.
By forging closer links with case managers, rehabilitation providers, barristers, and lawyers, we hope we can extend our reach to help even more people who have sustained a brain injury, including those who do not have a personal injury claim.
For further information on how Brain Injury Group can help or to find details of membership and our training, visit our website www.braininjurygroup.co.uk
DoLS cases rise, as completion rate improves
The yearly number of applications to legally deprive a person of their liberty (DoLS), where they lack the mental capacity to consent to their care or treatment, has risen slightly in England, new figures show.
In 2020/21, there were 256,610 Deprivation of Liberty Safeguards (DoLS) applications – up three per cent on the previous year, versus an average growth rate of 14 per cent between 2014/15 and 2019/20.
DoLS is a legal procedure when an adult who lacks mental capacity to consent to their care or treatment is deprived of their liberty in a care home or hospital, in order to keep them safe from harm.
In England, all deprivations of liberty that take place in a care home or hospital must be independently assessed and authorised by a local authority to ensure they are in the person’s best interests.
The reported number of cases that were not completed as at year end in April 2021 was an estimated 119,740, around 10,000 fewer than the end of the previous year.
More than half (57 per cent) of completed applications in 2020-21 were not granted was 57 per cent. The main reason was given as ‘change in circumstances’, at 60 per cent of all not granted cases.
The proportion of standard applications completed within the statutory timeframe of 21 days was 24% in 2020-21, the same as the previous year. The average length of time for all completed applications was 148 days.
During the coronavirus (COVID 19) pandemic period, some aspects of the DoLS process have changed due to new Government guidance.
This includes greater use of remote assessments and shortened forms.
Read the full report here.
‘This is an exciting time in the future of clinical rehab’
For seriously injured military personnel, the options around rehabilitation are increasing further with plans for a new National Rehabilitation Centre. Matthew Tomlinson and Rachel Seddon, from the military team at Slater & Gordon, discuss the importance of access to specialist support
For the majority of readers, initial treatment for their serious injury or illness will likely come from our exceptional NHS’ regional acute hospitals. When clinical rehabilitation, to assist those seriously injured is required, it is widely recognised that timely and tailored support is necessary to maximise the potential to return to a quality of life, and minimise further problems down the line. This is significant in relation to an individuals’ physical and mental health.
Getting people back to a meaningful life and capability following serious injury is a major policy area in Government. Return to work rates for people experiencing serious injury and trauma in England are below rates achieved in other European countries as well as rates achieved in the Armed Forces.
For seriously injured military personnel, the Defence and National Rehabilitation Centre (or DNRC) in Loughborough will already be a familiar part of Defence Medical Services, which comprises, in addition to the national Defence Centre, Regional Rehabilitation Units (RRUs), Units embedded within NHS Trusts, the Royal Centre for Defence Medicine and mental health services such as the DCMH (Departments of Community Mental Health) network.
The Defence Centre, or DMRC/Stanford Hall as it is known, is the state of art successor to the Ministry of Defence’s former Headley Court facility in Surrey. The facility, which is run by a Commanding Officer alongside uniformed staff and civilians employed by MoD, opened in 2018 and continues to treat and rehabilitate seriously injured members of the armed forces including those with serious neurological and spinal cord injuries.
In addition, plans to develop a ‘National Rehabilitation Centre’ (NRC) on the Stanford Estate (next to the Defence Centre) are gaining momentum and will be a very welcome initiative bringing world-class clinical rehabilitation for civilian NHS patients, as well as providing a national hub for training, research and development.
Recent reports suggest that, all being well, the green-light should be given later this year for construction of this new facility, with a target for treating patients by 2024. This is an exciting time in the future of clinical rehabilitation and the NRC will extend the success of acute services and established major trauma centres by providing a national centre of excellence in both patient care and innovation.
The recent and ongoing lessons of COVID-19 are showing the real value of excellent clinical rehabilitation in making a meaningful difference to an individual’s recovery and capability. For example, a specialist three-step rehabilitation programme developed at DMRC has been credited with saving the careers of military personnel with “long- Covid” (shortness of breath, fatigue, low mood and “brain fog”). The BBC recently reported that nearly all of the 150 patients that took part in the programme were able to return to work within three months.
The plans for the NRC appear to offer a unique opportunity to drive new rehabilitation products and technologies and improve accessible state of the art rehabilitation. The NRC would provide patient care focused primarily on treating patients within the NHS East Midlands region with the potential to treat patients referred from elsewhere in the country similar to the Defence Rehabilitation Model.
Already, the Defence establishment is acquiring new knowledge through, for example, Computer Aided Rehabilitation Environment and the cohort of patients treated at both the NRC and the Defence facilities must widen the opportunities for clinical research. The NRC facility itself aims to be transformative, leading in the testing and development of future treatments and techniques and the positives that can be derived from the Defence Rehabilitation Model and its collaboration with Defence Medical Services looks likely to bring about meaningful changes to injured individuals’ pathways.
Good rehab after serious injury is often described as ‘like a relay race’. Taking for example, the experience of our client, Soldier X. X was paralysed from the mid-chest down and would be graded T4 complete ASIA A paraplegic. He suffers from residual neuropathic pain, increased tone, spasms, impaired sensation and loss of power below the mid-chest and loss of visceral function. He has to self-catheterise and manually evacuate the bowels, and within a few years of injury, developed a syrinx, which is, along with syringomyelia, likely to further progress.
In the immediate aftermath of the injury, he went through numerous intensive and emotionally difficult stages of rehabilitation, including treatment at Stoke Mandeville NSIC.
During X’s Naval Service Recovery Pathway with Hasler Company, and numerous inpatient stays at DMRC Stanford Hall, he has been able to access tailored rehabilitation which has included hydrotherapy, 1:1 specialist physiotherapy and psychotherapy, and he has had the opportunity to complete successful trials of the ReWalk exoskeleton.
DMRC Stanford Hall has the feel of a military establishment in one sense and of somewhere very conductive to rehabilitation in a relaxed and personal manner. It has buildings and spaces specially designed to aid the recovery process including gyms, a range of swimming and hydrotherapy pools, a gait lab and “all the elements essential for its clinical purpose”, that is, to rehabilitate the most seriously injured members of the Armed Forces and also, importantly, return those who have been injured in the course of training back to work.
He is making good progress with his physical rehabilitation but acknowledges his ongoing challenges in terms of bowel and bladder care, sexual health and fertility, pressure sores, syrinx management, and mental health and so continuity and quality of care remains vital both now and beyond his medical discharge. In due course, Soldier X will likely engage with the Recovery Career Services which was launched as part of the Defence Recovery Capability back in 2013 with the mission of getting injured and sick personnel competing in the civilian employment market.
What the current Defence Rehabilitation Model seems to do very well is integrate all aspects of recovery including medical care, welfare, housing, education, reskilling, work placements, employment issues and opportunities. Whilst this remains an ideal care model and one that is decades ahead due to the combined efforts of the Services and the Service charities responding to carefully tailored individual recovery plans setting out a recovery pathway, if the NRC development plans can keep momentum, it presents a very exciting, and similarly patient-led opportunity to build the right environment for successful rehabilitation.
- For more information about Slater & Gordon’s specialist work with the military, visit here
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