- Common types of injuries
- Impact on damages.
- Experts
- PG&T Involvement
Statistics on Pediatric Brain Injuries.
Stats:
- Traumatic brain injury is the leading cause of disability and death in children and adolescents nationwide.
- The age groups most at risk for brain injury are newborns through age 4 and teens from 15 to 19.
- Every year, an average of 564,000 children are treated for brain injuries in the Emergency Room, and 62,000 children with brain injuries are hospitalized.
(Courtesy of the Brain Injury Association of the United States of America)
Common Types of Injuries
In the context of insurance claims, the following are the most commonly encountered brain injuries occurring in children.
- Hypoxic/anoxic (near drowning, suffocating, birth injuries)
- Traumatic (falls, motor vehicle, bike, skate board, ski accidents etc.)
- o Concussion
- o Penetrating
- o Diffuse axonal
- o Contusions
The type of brain injury a child has sustained can often provide information as to the nature of problems (physical/emotional/cognitive) likely to manifest as the child develops and will allow you to anticipate the type of care and treatments needs you may encounter as the litigation develops. Even limited information obtained early on in the litigation process, can provide useful clues.
Hypoxic injuries
Hypoxic injuries, in which the brain is deprived of oxygen are frequently the subject of lawsuits with implications for insurers. These claims are usually associated with incidents involving drowning or suffocating and commonly involve younger children – playing near ponds, falling into swimming pools, getting caught in gravel pits on building sites. Homeowners with unguarded swimming pools, hot tubs, water features and other potentially dangerous structures on their properties are particularly vulnerable. Hypoxic injuries are also frequently associated with birth complications and regularly form the subject of obstetrical malpractice claims.
Children who have suffered hypoxic brain injuries may make substantial recoveries. Both the age of the child and severity of the injury are likely to impact recovery. This is due in part to a neurogenic reflex, known as the “diving reflex” which directs blood flow away from non-essential organs, to the heart and the brain. The brain of an infant who has suffered a hypoxic injury will generally show a particular pattern of injury related to the severity and duration of the anoxic event. In the neonatal brain (birth related injuries) the areas of the brain most commonly affected are the deep grey matter structures (such as the hippocampus, basal ganglia and thalamus) while the cerebral cortex may be relatively spared. The thalamus is involved in the control of sensory and motor signal relay and the regulation of consciousness and sleep. Babies who have suffered hypoxic injuries will typically show deficits in speech and in gross and fine motor skills. In young children, greater involvement of the cerebral cortex can be expected and therefore, there is a greater likelihood of cognitive deficits and more severe learning disabilities.
Traumatic Injuries
On the other hand, children who have suffered traumatic brain injuries will show individual patterns of injury, depending on the area of trauma and the presence of secondary injury. Each area of the brain controls a particular function – for example, the occipital lobes control visual perception; the parietal lobes are involved in memory, hearing and mobility; the frontal lobes control motivation, judgment and behaviour. Knowing exactly what part of the brain has been damaged is a further clue in predicting outcomes and care needs. For example, a child who has suffered an injury to the frontal lobes (a fall head-first onto concrete, a penetrating injury into the eye etc.) will likely have deficits in executive functioning or mood control but may have retained function in mobility. The full extent of deficits associated with frontal lobe injuries may not become obvious until adolescence, when the frontal lobes start to mature. A child who has suffered a severe diffuse axonal injury (most often associated with serious motor vehicle accident) may have deficits in all areas and will have high care needs from the outset. Diffuse axonal injuries are caused by severe acceleration and deceleration forces to the head, resulting in diffuse tearing of brain tissue and disruption of axons (nerve fibres). Severe diffuse axonal injuries are usually associated with very poor outcomes. These are the type of injuries that will attract high damages awards, since care needs are often extremely high but the associated claims may be capable of earlier resolution since outcomes may be easier to predict.
a.) Damages
Knowing a little about the type of brain injury you are dealing with, can help you to set reserves at the beginning of a file and before you have access to a lot of the information. Ask for preliminary hospital records immediately. Just the admission records will provide you with critical information:
-
- How old is the child?
- What type of injury are we dealing with?
- What does the MRI or CT scan tell you about where the trauma has occurred?
- What is the Glascow Coma Score?
b.) What kind of therapy is this child going to need?
Understanding the type and location of the injury can help predict what type of services and therapy will be needed.
Examples:
-
- Mild to moderate hypoxic injuries: usually require extensive speech therapy and occupational therapy (fine and gross motor skills impairment). May or may not need mobility aids depending on severity, can often overcome significant disability through use of technology (computers, communication devices etc.). If cognitive function intact, prognosis may be fair to good. May be able to live independently, may be able to work. Unlikely to need 24 hour care, except in severe cases.
- Diffuse axonal and other traumatic injuries: will depend on severity but care needs may be significant. May require personal care aide. May lack insight and judgment, especially if extensive frontal lobe involvement and it may not be possible to determine full extent of neurological deficits until adolescence. Intensive therapy beyond the two year mark may not be particularly beneficial. Quality of life concerns become more important than therapy per se.
- If medical care is also required (tube feeding, complex medication regimen, etc.) a more highly skilled care giver will be needed so care costs will be increased. If 24 hour “awake care” is required (three shifts), care costs will be excessive. Likely in excess of $10 million depending on life expectancy.
c.) To advance or not to advance?
In cases where you know from the outset that a plaintiff will likely succeed on liability, an advance is usually a good idea, especially in those cases where there is medical evidence a child may improve significantly through early therapeutic intervention.
In cases involving younger children, there will be no possibility of arguing contributory negligence so liability will be joint and several.
There is little down-side to an advance, from the defence perspective. There may be no improvement (in which case you have a good argument at mediation that costs for occupational therapy, speech therapy etc. are likely not going to make any difference) or there may be positive progress and clear evidence of learning which can support an argument for independent living and/or possible employment in adulthood. Both these arguments can be used to limit cost of care claims.
Remember when making an advance to do so with clear undertakings – this is also a way to ensure plaintiffs’ counsel keep producing clinical records. This means you keep up to date with what is happening as far as the child’s prognosis is concerned, hopefully avoid the tedium of constantly asking for records and can make adjustments to your damages assessment sooner, rather than later.
Which Experts Do I Need?
Every case is different but it is important to retain good experts – as soon as possible. Good experts are at a premium and pediatric experts are few and far between. It is critically important when doing this type of work that we develop and maintain good relationships with a body or reliable experts. Once that rapport has been established the relationship will go far beyond the IME and the report.
The following specialties will usually form the core of your opinion evidence:
Neurologist or neurosurgeon – usually you will not need both. Neurosurgeons deal with trauma – so if you are defending a traumatic injury claim, a neurosurgeon will likely be more helpful than a neurologist. On the other hand, neurologists generally know more about hypoxic/ischemic injuries or may be needed to deal with the consequences of traumatic injuries (eg. epilepsy)
Neuro-radiologist – very valuable if there is a question with respect to causation. Neuro-radiologists are often viewed as objective by the courts since they do not “treat” patients. They simply read imaging and report on what they see. For example, if a child is injured when he or she is very young and showing profound intellectual impairment in circumstances where the subject injury was very mild, a neuroradiologist can help build a case to show the impairment is more likely due to other unrelated factors (autism, congenital abnormalities).
Neuro-psychologist – a neurospsychologist cannot diagnose a brain injury but is invaluable when defending a paediatric brain injury case (except in rare circumstances). There are certain “keys” to assessing children that may significantly impact damages and timelines:
-
- children develop in three stages – until Grade 3, children are learning to read. From Grade 4 onwards, children are reading to learn. Around puberty, children start to develop reasoning skills (or executive functioning). Consequently, it may not be possible to predict outcomes on the basis of one assessment if the child in question is still very young.
- neuropsychologists can tell you by looking at trajectories in test results whether a child is capable of learning. In other words, is it likely this child will improve further or is there no point in delaying settlement.
- neuropsychologists can tell you whether the deficits apparent from test results are consistent with what could be expected from the area of the brain that was damaged or suggest there might be an alternative explanation.
Speech therapist – may want to keep for rebuttal evidence. Can also assist you in advising whether early intervention will make a difference and what to expect in the future.
Occupational therapist/cost of care – it is always best to retain an OT with paediatric experience, particularly as he/she is usually familiar with services that are available in the community. This is particularly important in smaller, rural areas where services may be better than expected. The cost of care claim will likely be the largest component of a serious brain injury case.
Physiotherapist – may or may not be necessary but may be helpful in advising whether early intervention will make a difference and what to expect in the future. However, you may be able to obtain sufficient information from treating physiotherapy records.
Vocational counselor – may or may not be helpful, depending on severity and whether future employment is in issue.
Psychiatrist – recommended particularly where there is frontal lobe involvement. Injuries to the frontal lobes can be subtle but have significant consequences. A person with a frontal lobe injury may speak normally and appear to be relatively “intact” cognitively (i.e “normal”) However, frontal lobe injuries can often result in emotional instability, poor judgment, suicidal ideation, poor impulse control etc. These factors can influence cost of care, employability and life expectancy.
Life expectancy – it is generally accepted in the scientific literature (and by the courts) that a person who has suffered a serious brain injury will have a shortened life expectancy. Life expectancy is affected in several different ways but by far the most important factors negatively impacting life expectancy are:
-
- mobility
- feeding
A child who is tube fed and confined to a wheelchair will have a significantly reduced life expectancy whereas a child who has suffered a devastating frontal lobe injury but is still able to walk and feed him/herself will have a life expectancy much closer to normal. Clearly, mobility and feeding status are facts that can be discerned fairly early on and will assist in your preliminary damages assessments – a reduced life expectancy can obviously have a huge impact on cost of care and deductions for “lost years”. [See Ediger v. Johnston, 2009 BCSC 386 (CanLII) – plaintiff’s life expectancy reduced to age 38 – award under $4 million]
Economist – because someone has to crunch the numbers!
Public Guardian and Trustee involvement
It is important to recognize at the outset that a claim cannot be resolved without PG&T approval. Consequently, even in a case where there is a strong liability argument, it is unlikely a claim can be resolved with an early offer.
Be prepared to be in this for the long haul – if there is any medical evidence that it is too early to assess damages, the settlement may not be approved. The PG&T’s mandate is to:
Protect the legal and financial interests of children under the age of 19 years
PG&T’s authority to review settlements is set out in the Infants Act, R.S.B.C. 1996, c.223
-
- Four categories of infant settlements (in Supreme Court)
- Under $50,000 where no action commenced – only need PG&T approval, Guardian Settlement Agreement and Release
- Under $50,000 where action has been commenced – only need PG&T approval. CDO can be filed by way of desk order.
- Over $50,000 where no action commenced – requires court approval, counsel must request Statutory Comments from PG&T (Sec 40(10) of the Infants Act), application for court approval can be made by desk order
- Over $50,000 where action commenced – requires court approval, counsel must request Statutory Comments from PG&T (Sec 40(10) of the Infants Act), application for approval by way of filed Notice of Motion and Affidavit with Statutory Comments also filed. If PG&T does not approve may retain counsel to oppose application.
Trustees and Submissions
Pursuant to new provisions in the Family Law Act S.B.C. 2011 c25, the court has specific jurisdiction to appoint trustees. Under the legislation, the court is required to address specific criteria and there is a further specific requirement for PG&T comments.
Section 179 of the Family Law Act governs the appointment of trustees and requires that the appointment be made only if in the best interests of the child and after due consideration of the following factors:
-
- o the ability of the proposed trustee to administer the property;
- o the merits of the proposed trustee’s plan for administering the property;
- o the views of the child, unless it would be inappropriate to consider them;
- o the personal relationship between the proposed trustee and the child;
- o the wishes of the child’s guardians;
- o the written comments of the Public Guardian and Trustee;
- o the potential benefits and risks of appointing the proposed trustee to administer the property compared to other available options for administering the property….
When making submissions to the PG&T with respect to the financial aspects of the proposed settlement, it is imperative that each of these considerations be addressed in turn. While the PG&T is more likely to interfere over counsel fees than it is over settlement, if not satisfied that the settlement is in the best interests of the child, counsel will be appointed an the application for approval will be opposed. (See Lotocky v Markle 2010 BCCA 75)
The PG&T will scrutinize counsel’s submissions very carefully so the letter should contain as much detail as possible, including witness statements, expert reports and case law supporting your position. Knowledge of the policy considerations under which the PG&T operates can substantially increase your chances of having settlements approved so be sure to address them all. Outstanding information or documentation and repeated inquiries from the office of the PG&T can hold up applications for approval by months.
Paper written by Ann E. Howell, former lawyer at Whitelaw Twining