Waivers signed by parents, releasing liability for future negligent acts committed against minor children in recreational and related settings, are generally enforced by judges in California as discussed here. Interestingly, a clear majority of courts in other states have held that a parent may not release a minor’s prospective claim for negligence.

And when the victim is an adult family member who dies participating in an activity for which he signed a waiver, those who can bring a lawsuit on his behalf will also likely be bound by the waiver.
 

Neuropsychologist researcher and professor Erin Bigler, PhD. recently spoke about the advances in images of post-concussion brains.  As discussed here, concussions or mild traumatic brain injuries may not show up on standard MRI or CT images.  Dr. Bigler described a new technique for analyzing MRI scans called "diffusion tensor imaging" or DTI.  This technique illustrates the direction of water flow through the fiber tracts of the brain. A comparison of images between an injured group and a control group revealed differences in the fiber tracts of injured patients.  It is believed that the head injuries caused swelling or edema in the fiber tracts, disrupting their normal ability to transmit messages in the brain.  This imaging allows researchers to determine the extent of injury between the fiber tracts.  Such research will have many applications, including diagnosing and assessing the scope of damage to a mild traumatic brain injury victim.

Most victims of a Mild Traumatic Brain Injury recover fully within one year of their injury. But, sometimes, victims can be left with long-term cognitive problems that affect both their jobs and MRI - Braintheir family lives for years to come.  Despite the potentially devastating effects of a mild brain trauma — also known as a " concussion " — the injury seldom appears on X-Rays, CT scans, or other common imaging techniques.  Without such objective proof, the wrongdoer who caused the injury invariably argues that its victim suffered no brain injury at all, and that the victim is simply making up his symptoms.

One sure way to prove that a victim suffered a brain injury is to prove that the accident caused the victim to lose consciousness, or "black out."  Though an accident victim can suffer a brain injury even without losing consciousness, doctors agree that if an accident causes a victim to lose consciousness, however briefly, brain injury has always resulted. Unfortunately, many victims who black out never realize it, and so insist to paramedics or doctors at the hospital that they did not. Therefore, the first challenge for a lawyer representing the victim of a Mild Traumatic Brain Injury is proving that the brain injury even exits.

Brain specialists can help. A neurologist can conduct sophisticated tests, such as PET scans and SPECT studies.   These studies may show an impairment in brain functioning that doesn’t appear on an MRI.  A neuropsychologist can administer objective tests of memory, attention, problem-solving, sensory perception, planning, organization, and other cognitive functioning. The results of such testing can sometimes prove that the accident victim, does, in fact, suffer from a brain injury.

When confronted with proof — from either cognitive test results or PET/SPECT studies — that there is a brain injury, wrongdoers argue that the victim’s symptoms are attributable to a previous accident and not the one that they caused.  And, in fact, many of those who suffer long term effects from a Mild Traumatic Brain Injury have a prior concussion in their medical history.  However, research shows that one concussion — even if it caused the victim no lasting symptoms — leaves the victim at risk of permanent symptoms should he receive another concussion.   That is why professional football players retire after receiving multiple concussions despite "feeling fine", and why boxers who don’t retire eventually become "punch drunk."

To prove that the victim had fully recovered from the prior injury, and that it was the most recent concussion that caused the symptoms, it can be helpful for family, friends, and employers to testify.  These witnesses can frequently establish that the victim exhibited no changes in his behavior, mood, or cognitive abilities until after the most recent injury.
 

This week a San Diego jury found a golf course responsible for the death of a golfer who was killed after falling off an 80 foot cliff in a golf cart and awarded his family $2 million.  The golfer Edwin Payne tried to make a U-turn on the golf path but drove over a small inner curb, lost control of the cart on a slope veiled by trees, and eventually was catapulted over the cliff.  As discussed here, the property owner must  keep its property in a safe condition and warn of any unsafe conditions.The jury determined that the Pala Mesa golf course should have installed a higher curb and failed to warn him about the cliff behind the trees.  The award will be reduced by 30% because the jury assigned partial fault to Mr. Payne based upon the principle of comparative fault previously discussed here.

California is a "comparative fault" state. This means that if a victim is partially at fault for the accident, the jury will be asked to determine the percentage of the blame that lies with the defendant, and the percentage that lies with the victim. The victim will be entitled to collect only that percentage of the verdict for which the defendant is responsible.  For example, if a jury determines that the victim was 30% at fault for causing the accident, and the defendant was 70% responsible, the victim can collect only 70% of the jury’s verdict.

Some states do not allow a victim who is more than 50% liable for causing the accident to receive any compensation at all. That’s not the rule in California.  California law allows the victim to collect the appropriate percentage of the jury’s verdict, even if the jury determines she was more than 50% responsible.  

When a person is injured, the initial investigation might not provide all of the answers. For example, when a product such as a Blue Ember gas barbecue grill causes an injury, victims and investigators want to know: “When was the manufacturer first aware of the problem? And, should they have warned earlier about the potential to cause serious injuries? ” 
To get answers, the victim’s attorney needs to review internal documents and interview employees and supervisors. Unfortunately, wrongdoers seldom allow their victims’ attorneys to review their internal files voluntarily. To get their cooperation, the victims’ attorney needs a subpoena. Only then will the manufacturer or other defendants be legally required to open up their files and submit to questions under oath. But to get the subpoena, the attorney needs to file a lawsuit.

 So, then, how much evidence does a victim need before he can file the lawsuit?

It’s a bit of a catch-22. An attorney needs to file a lawsuit before he can conduct a thorough investigation. But he needs to investigate to unearth the facts that justify filing a lawsuit. So what facts must an attorney know before filing a lawsuit? In California, the law requires a mere "statement of facts constituting the cause of action, in ordinary and concise language."  What does that mean? Mere allegations of fact which, if true, would entitle the victim to be compensated, are good enough. At the beginning stages of the lawsuit, the victim’s ability to actually prove the allegations is of no concern.

Not true for federal court. The requirements for filing a lawsuit in federal court are more stringent. In federal court, the attorney needs a "good faith basis" for each allegation of fact. It is no excuse that the attorney cannot conduct an investigation into the facts until after the lawsuit is filed. And, recently, the U.S. Supreme Court made it more difficult. The defendant who is sued in federal court can ask the judge to review the initial complaint and draw upon his or her judicial experience and common sense to determine if the allegations are " plausible. " If the judge thinks the allegations are not, then he can throw the case out before the defendant has to answer any questions at all.

This stringent federal standard is one of several reasons victims’ attorneys prefer to file lawsuits in California state courts. Under the federal standard, the Judge may close the door to the victims before important questions are answered.

 

When burn victims are resting (most of the time), opioids (morphine and morphine-related chemicals) are adequate for controlling their burn pain. In sharp contrast, during wound care such as daily bandage changes, wound cleaning, staple removals etc., opioids are not enough, not even close.  Researchers at Harborview Burn Center in Seattle have developed a virtual reality program to fully immerse a patient in an alternative reality.  Patients are equipped with goggles and "enter" a computer-generated environment .  Entering another world distracts the patients from the painful wound care process and decreases their perception of the pain.

Moving and stretching are also very painful but crucial for a successful recovery.  Recently, physical therapists at New York-Presbyterian Hospital/Weill Cornell Medical Center have reported that burn patients who need to move and stretch benefit from "Wii-habilitation".  The Wii is much more accessible and affordable than the Harborview program.  It too promotes recovery while getting their minds off the injury and pain.

Recognizing the impact of long-term pain is important.  A recent article in Rehabilitation Psychology,  Pain, Depression and Physical Functioning Following Burn Injury concludes that that pain and depression may contribute independently to compromise physical function. And, when a burn patient suffers from both pain and depression, he is at a greater risk for reduced physical functioning over time.

Researchers look forward to further applications of virtual reality programs and games to promote successful rehabilitation in burn survivors.  However,one area of burn recovery that virtual reality will likely not reduce is the relentless itching of the healing process.  Although wound care, moving and stretching are undeniably painful, one of our clients felt tortured by the constant itching. The opioids and topical balms provided little or no relief.  While research may improve treatments, the reality remains, burn victims endure tremendous suffering at every stage of their recovery.

 

 

Once a victim has established the he was injured by another’s wrongdoing, he must be compensated for his pain and suffering.  There is no definite standard or method to calculate pain and suffering. A victim may recover for his pain and suffering even if at trial he presents no medical bills or medical evidence.  The award must be reasonable based upon the evidence and common sense.  The following items may be included in an award for pain and suffering:

  • Physical pain
  • Mental suffering
  • Loss of enjoyment of life
  • Disfigurement
  • Physical impairment
  • Inconvenience
  • Grief
  • Anxiety
  • Humiliation
  • Emotional distress. 

In one of our recent traumatic brain injury cases, the judge also instructed the jury to consider:

  • Loss of freedom
  • Loss of ability to parent
  • Loss of dignity
  • Loss of independence.

 

In the past week, I’ve signed waivers for field trips and summer camps. Some are lengthy and complicated and others short and simple. Waivers are common in sporting activities and at health clubs. Generally, a waiver means that the participant agrees in advance to accept liability for injuries that may result from negligent acts of others. If something goes wrong, the activity provider will use the waiver to defend against the claim. Waivers that are clear and straightforward will usually defeat a claim, unless the activity provider knew about a danger and ignored it. 

If you have been injured during an activity and you signed a waiver, your chances to be compensated are likely reduced. When I meet with new clients, I ask them to bring copies of waivers, as well as any enrollment forms or product rental agreements. I carefully look at the language used in the forms and find out their understanding of those documents. 
 

Some traumatic brain injuries can be seen on an MRI scan. Many, however, cannot. The structural MRI - Braindamage caused by the trauma is just too subtle. Of course, even subtle changes in brain structure can cause profound changes in brain functioning. Simply because  the brain injury cannot be seen on an MRI, it doesn’t mean that it doesn’t exist.

While an MRI (upper photo) shows abnormalities in the brain’s structure, a PET scan (lower photo) shows abnormalities in the brain’s functioning. PET scans do this by measuring the distribution of metabolic activity in the brain.  The parts that are not experiencing the expected biochemical activity have a functional abnormality. The PET scan, then, can serve as objective evidence of a brain injury that can’t be seen on an MRI.

PET scans can help prove that a victim has suffered a traumatic brain injury.  But before a judge will allow the jury to see the PET scan, he has to be convinced that the PET scan reliably depicts what the testifying expert says it depicts,.  The judge will also need to be convinced that PET scanning is widely accepted in the medical community.

PET Scan - BrainDoctors frequently use PET scans to find changes in brain functioning in an Alzheimer’s patient or an epileptic.  They less commonly use them to diagnose victims of traumatic brain injuries. This is one reason why some judges are reluctant to allow PET scans to be used in a trial of a traumatic brain injury case. These judges, however, are often more willing to allow the PET scans to be shown to the jury when the scan was ordered by the victim’s treating doctor for the purpose of diagnosis or treatment – before any lawsuit was filed.