Do Cognitive Tests Accurately Measure the Loss Resulting from a Traumatic Brain Injuries?

Posted on April 12, 2010 by Kristine Meredith

Many people with TBI have problems with basic cognitive skills: learning, remembering, thinking. It’s more than a mere loss of "intelligence." TBI victims may find it hard to pay attention or concentrate, and they might have trouble learning new material. A TBI can also cause the victim to think more slowly, or to get easily confused. Sometimes these skills are described as “executive functions” because they require a higher level of thinking, such as planning, understanding abstract ideas and conceptualization. People with TBI may become impulsive, or develop unusual habits. Things that were once easy — like talking and listening — may become difficult or impossible.
 

Because the brain regulates our emotional and psychological lives, a TBI can alter a victim’s sense of mental wellness. The TBI might cause a personality change, or introduce mental problems. A person with TBI may have mood swings, depression, irritability, aggression, or disinhibition. 

To assess the extent of the victim’s deficit, a neuropsychological evaluation may be recommended. The person conducting the evaluation interviews the victims and then administers a series of tests. The majority of the tests are pencil and paper standardized tests, meaning that they are given in the same manner to all patients and scored in a similar manner time after time. The tests must be administered by a neuropsychologist or a trained, skilled test administrator. 

The test giver will rarely, however, give a test that was specifically designed for someone who suffered a TBI.  For that reason, the cognitive test scores – alone-- seldom paint the full picture of the TBI victim's deficits. 

When dealing with a TBI victim, the test administrator should personally observe and evaluate the victim’s behavior during the test.  The test administrator's observations may corroborate the reports of close friends and family members that the victim's behavior has changed as a result of the injury.  In fact, interviews of friends and family are critical sources information concerning the loss the TBI victim has suffered.  

Regardless, cognitive testing is not designed to evaluate all behavioral changes that may result from a TBI.   Cognitive test results cannot be relied on as a sole measure of the TBI victim's loss.
 

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Negligence Per Se -- When the Wrongdoer Violates a Statute

Posted on April 1, 2010 by Kristine Meredith

To win a lawsuit, the victim must prove that defendant was negligent --  that is, that he did not exercise "due care."  That can be difficult.  But it can also be easy, such as when the doctrine of negligence per se comes into play.

When the doctrine of negligence per se applies, defendant's conduct will presumed to have been negligent with no need for plaintiff to present any further proof.  A defendant's conduct is negligent per se if:

  1. The conduct violated a statute, ordinance, or regulation;
  2. The violation caused the injury;
  3. The statute, ordinance, or regulation was designed to prevent the type of injury that occurred; and
  4. The person suffering the injury was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

The doctrine of negligence per se may apply when a victim is injured on a construction site (or even a home remodeling project). For example, if the wrongdoer has violated an OSHA regulation, that may be enough to prove the wrongdoer was negligent.  The victim must still show that the violation caused his injury, that the regulation was designed to prevent his type of injury, and that he was of the class of persons for whose protection the statute was adopted.  But he need not prove, as he would need to in most cases, that the wrongdoer did not exercise due care.

If a jury determines that a defendant violated a regulation, the defendant can be found negligent per se even if the governmental agency did not charge him with a violation. Therefore, an attorney investigating a client's case must conduct his own research and investigation into whether the defendant may have violated any applicable statute, ordinance or regulation. 
 

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