Brain facts

The diagram below shows which areas of your brain control different activities

Areas of the brain

The cerebral cortex can be divided into a left and right hemisphere. It can be further divided into a number of areas known as lobes. Damage to a particular area of the brain (or lobe) provides us, as your solicitors, with an indication of how the injury you have sustained is likely to affect you.

Frontal Lobe

The frontal lobe is the area behind the forehead and is involved in intellectual activities such as planning and organisation. This area of the brain is also involved in personality and the control of emotions and behaviour.

Motor and Sensory Cortices

Between the frontal and parietal lobes is the motor cortex which controls movement and the sensory cortex which controls sensation.

Temporal Lobes

Nestled behind the ears, this area holds the bulk of our memories and our ability to understand things and speak.

Parietal Lobes

Located at the back of the brain above the ears, these have an important role to play in our ability to understand spatial relationships.

Occipital Lobe

At the very back of the head are the occipital lobes, which are responsible for sight. Any injury to this area can cause partial or complete blindness

Fletchers has a wealth of experience working with a wide range of expert practitioners who will be able to capture and report the full range of effects resulting from your injury. This will have a significant bearing on the amount of compensation you ultimately receive.

Minor Brain Injury

The majority of brain injuries fall into this category. A minor brain injury often results from a brief period of unconsciousness. Symptoms can include nausea, headaches, dizziness, impaired concentration, memory problems, fatigue, intolerance to light and noise, disturbed sleep, anxiety and depression. When problems like this persist, a diagnosis of post-concussion syndrome is often made.

In the majority of cases these symptoms will resolve themselves within a few weeks. However, in some cases they may persist much longer. In our experience we have dealt with many cases where following a relatively brief period of unconsciousness / minor brain injury, clients have been left with ongoing symptoms which are far from minor in terms of their overall impact on the individual. Headway are currently running a campaign (2010) to improve the information offered to patients on discharge from hospital following a “minor” head injury. It is worth visiting their website at www.headway.org.uk for more information. In particular we would recommend you download the “Minor head injury – discharge advice” factsheet.

Even in minor brain injury cases we will often involve an expert neuropsychologist to advise upon the full effects and likely impact. Unfortunately more than often no scan is taken at the time of the accident and/or the scan fails to show any damage. The absence of any damage on a brain scan is not in itself evidence that no damage has occurred. In cases of a minor brain injury, it can often be difficult for relatives and employers to fully understand why symptoms are ongoing. This is when relationships can break down if not properly managed. Through our experience of these cases we know that effective communication and information about the possible effects of a minor brain injury can prove invaluable.

You should be reassured that the vast majority of people who experience a minor brain injury make a full recovery ( usually after a few months). Unfortunately however there are some individuals who have ongoing symptoms and this is where an experienced legal team comes into its own in order to ensure that symptoms are not overlooked.

Moderate Brain Injury

A moderate brain injury is defined as loss of consciousness for between 15 minutes and 6 hours, and a period of post-traumatic amnesia of up to 24 hours. Like those with a minor head injury, patients with moderate brain injury are likely to suffer from a number of residual symptoms.

The most commonly reported symptoms include:

• Tiredness, headaches and dizziness (physical effects)
• difficulties with thinking, attention, memory planning, organisation, concentration and word-finding problems (cognitive effects)
• irritability (an emotional and behavioural problem)

Often it is only following a return to work / education that the full extent of any difficulties become apparent. In the vast majority of cases, these residual symptoms gradually improve, although this can sometimes take several months.

It is possible to suffer from symptoms beyond this time-frame. If symptoms become prolonged, this is when our clients often report a lack of empathy / understanding from those around them on the basis that there is a general feeling that “you should have got over it by now”. Due to the passage of time, often residual symptoms are considered by those close to you as behavioural and not associated with the original injury / accident. Brain injury is often referred to as a “hidden injury” often making it difficult for those you come into contact with on a day to day basis to fully understand why problems persist.

Due to our overwhelming experience in managing claims of this nature, we can help guide you, your family and employer through this process. Comprehensive expert reports detailing the full extent of the problems with reasons / explanations provides you with invaluable “evidence” in support of your ongoing challenges.

Severe brain injury

Severe brain injury is usually defined as being a condition where the patient has been in an unconscious state for 6 hours or more, or a post-traumatic amnesia (loss of memory) of 24 hours or more.

A further category of very severe injury is defined by a period of unconsciousness of 48 hours or more, or a period of PTA of 7 days or more. There is often a direct correlation between the length of loss of memory (PTA) and outcome.

We have extensive experience in managing severe and very severe brain injury claims which can often have devastating and life-changing consequences. We have acted for clients who are commonly referred to as the “walking wounded” to those who sadly are in a Permanent Vegetative State (PVS).

We must stress that no one case is the same and no one individual / injury is the same. However, experience in these types of cases is crucial if the best possible outcome in terms of both recovery and compensation is to be achieved.

Our team of renowned experts in the field of brain injury report on all aspects of the injury from medical / rehabilitation provision, memory aids / equipment, housing, employment / education, care / case management, neuropsychology, neuropsychiatry, financial management / investment, to name but a few.

We can help implement a comprehensive care / support package (24hr if required) along with a structured rehabilitation package to ensure that every opportunity for improvement is attained. We recognise that the involvement of all of these experts at an already difficult time can be overwhelming and daunting. We pride ourselves on our sympathetic management of this process and make every effort to minimise intrusion.

(all of this information can be obtained by visiting the Headway website at www.headway.org.uk)

The effects of a brain injury can be wide ranging, and depend on a number of factors such as the type, location and severity of injury. Every person's injury is unique, so they will experience any number of the symptoms, which can range from mild to severe.

The effects of brain injury can be divided into three categories:

Cognitive effects of brain injury

The cognitive effects of a brain injury affect the way a person thinks, learns and remembers. Different mental abilities are located in different parts of the brain, so a brain injury can damage some, but not necessarily all, skills such as speed of thought, memory, understanding, concentration, solving problems and using language.

Emotional and behavioural effects of brain injury

Everyone who has had a brain injury can be left with some changes in emotional reaction and behaviour. These are more difficult to see than the more obvious problems such as those which affect movement and speech, for example, but can be the most difficult for the individual concerned and their family to deal with.

Physical effects of brain injury

Most people make an excellent physical recovery after a brain injury, which can mean there are few, or no, outward signs that an injury has occurred. There are often physical problems present that are not always so apparent, but can have a real impact on daily life. Damage to the motor cortex (located between the frontal and parietal lobes) can result in more obvious physical disability.

(all of this information can be obtained by visiting the Headway website at www.headway.org.uk)

We refer you to the Headway booklet 'Rehabilitation after Brain Injury' for further information at www.headway.org.uk)

Timescales

Any improvement following a brain injury tends to occur in the first two years.The greatest visible progress occurs in the first 6 months, after which improvement is often more subtle and less obvious. It is important to bear in mind however that progress does not stop after 2 years. Early intervention / rehabilitation can improve outcome.

Stages of Rehabilitation

Initially, rehabilitation comprises of formal intervention to improve the individual through the development of coping strategies. Thereafter the focus is on the family and carers work to maintain that improvement (if required). Research suggests that patients who make the best recovery are those whose family is actively involved, and can maintain this informal rehabilitation at home.

Who's Who on the Rehabilitation team?

As the effects of a brain injury can be wide-ranging, there may be a number of different specialists involved in a person's rehabilitation. This is called a 'multi-disciplinary team', and ensures a patient receives proper attention to every effect of their injury. At Fletchers we work closely with the treating team so we are fully informed of progress in the early stages. Upon receipt of a complete set of your medical records and upon conclusion of the acute phases of treatment we then embark on building our team of medico-legal experts in support of your claim.

Some of the most common specialists are described below:

• Nurses

Nurses are trained in all aspects of general health care and will help with dressing, washing, feeding and toileting. A ward will be run by a sister or charge nurse, accompanied by a staff nurse and nursing assistants. Specialist Neuro nurses can be found in the larger Neurology Centres

• Doctors

A consultant will co-ordinate the day-to-day medical care, carrying out examinations and prescribing medication while the patient is in hospital. The consultant is head of a medical team and will be assisted by junior medical staff such as registrars and house officers, who will spend more time on the ward than the consultant. A Neurologist or Neurosurgeon would tend to be the lead Consultant in severe brain injury cases both in terms of treatment and subsequent medico-legal advice.

• Physiotherapists

The physiotherapist aims to help patients recover the ability to use their muscles and joints so they can sit or stand without losing balance, co-ordinate movements, walk and use fine hand movements. The physiotherapist will set exercises and activities for improving physical ability, and help with learning techniques for lifting and transferring from a wheelchair. Neuro physiotherapists specialise in brain and spinal injury cases.

• Occupational Therapists

The occupational therapist (OT) is concerned with helping to develop independence in carrying out everyday tasks such as dressing, cooking, and housework. They will also help the individual develop skills which underlie these activities such as budgeting, planning, improving thinking and finding ways around problems. They may also provide special equipment and adaptations around the home.

• Clinical Neuropsychologist

The clinical neuropsychologist will help in assessing the patient's mental skills and weaknesses, such as memory and concentration (a cognitive problem), using specially designed tests. They may also advise on management, rehabilitation and cognitive retraining programmes, both in hospital and in the community. They may also provide counselling and advice on dealing with the emotional problems involved in adjustment and coping. Unfortunately not all brain injured people get access to a neuropsychologist via the NHS. At Fletchers, in all cases where ongoing impairment / problems persist we will instruct a neuropsychologist to assess and report on the problems and advise on strategies to overcome them. We then work with you to build a support package to implement the strategies.

• Social Worker

Social workers are skilled in helping families receive the practical help that is needed. They can provide information about benefits, accommodation and transport. The social worker is also an experienced counsellor and is there to talk to about emotions and feelings. If there has been no contact with a social worker in hospital, ask for an appointment to see one.

• Speech and Language Therapist

Speech and language therapists aim to help patients communicate more effectively using both the spoken and written word. They may provide structured exercises and activities aimed at improving speech and language skills, or may work with other staff and relatives to improve all-round communication. The speech therapist will also have experience of communication aids

• Brain Injury Case Manager

A brain injury case manager can help co-ordinate a care / support package and liaise with all the clinicians and medical staff responsible for your treatment and care. Brain Injury case managers are not currently funded by the NHS or social services and so need to be funded privately via your compensation claim. The Serious Injury Team at Fletchers has close working relationships with a number of brain injury case managers who, in the most severe of cases, have set up and managed 24 hour care packages for our brain injured clients. Most brain injury case managers come from a heath or social services background and can prove invaluable in the implementation stages of community / home based rehabilitation packages

Rehabilitation units

There are many rehabilitation units across the UK, run by the NHS and private firms. The decision of which unit a person with brain injury should go to should be made between their doctors, the unit, and their family members. We aim to obtain early funding (interim payments) so that our clients gain access to the best possible rehabilitation provider for them. Any Rehabilitation unit will usually carry out an assessment before any referral is made, to make sure the service is suitable

Brain injury affects whole families, not just individuals. Many difficult stages have to be passed through from the initial shock of the news of an injury, to eventual acceptance that things may now be very different from how they used to be - for both the individual concerned and the whole family. Our lawyers in the Serious Injury team have vast experience in working with clients and their families through this process and the emotional journey that is an inevitable consequence of a life changing injury

The stages of the family's emotional reaction

• Shock, panic, denial, “Please God, let him live.
• ” Relief, elation, denial, “He's going to be fine.
• ” Hope, “He's still making progress, but it's slow.“
• Realisation, “He's not going to get back to his old self.“
• Anger, depression, mourning.
• Acceptance, recognition, “Our lives are now very different.“

Living with a brain injury

No family is ever prepared and ready for a brain injury. Research into the effects of severe brain injury on family members gives some indication of the extent of their difficulties. The following points are worth noting:

• Close family members are likely to experience high levels of anxiety and depression during the years following a brain injury. As time elapses, there is often a decrease in relatives' capacity for coping, particularly with emotional and behavioural problems.
• Parents describe a period of grief / mourning when their child has been severely brain injured coupled with anger for the future he/she may have lost.
• Spouses often feel isolated and trapped with a marriage where their emotional needs are not being met. Some describe this as being neither married nor single. Relationships are put under enormous strain and it is estimated that between 20 and 50 per cent of all marriages in which one spouse has had a severe head injury end in divorce.
• Children often experience emotional problems as, alongside coping with the initial trauma and the subsequent difficult behaviour of a parent with a brain injury, their own needs are often neglected and this can impair their performance at school.
• Families need attention, education, guidance and support if they are to survive, regroup and rebuild their lives. Some families cope better than others, but all have difficulties. There is no normal way of responding to a brain injury. The saying that 'people act abnormally in abnormal situations' is undoubtedly appropriate.

The fragility of life can give a whole new perspective and intensity to the love that existed prior to the brain injury. Having a person with disability in the family often brings a new sensitivity and awareness to other members of the family. It is often said that the experience of brain injury tends to make strong relationships stronger and troubled relationships more troubled.

Timescales

Acting quickly following an injury is very important. By law (unless the injured person is a child or unable to conduct their own affairs), compensation proceedings must be started within three years of an incident. In practice, however, the earlier you get in touch with us the better. Opportunities to gather evidence and witnesses statements can quickly disappear following an incident. So speed is of the essence.

It is common for claims for compensation for serious brain injury to take several years. The reason for this is that it is important to ensure how your brain injury is going to affect your future and to assess all your future needs. This will enable us to value your claim properly.

Gathering evidence

Before you make a decision on whether or not to proceed with a claim, we will gather as much evidence as possible including, where applicable:

• signed witness statements from all relevant parties
• photographic evidence
• a copy of the police report accident reconstruction evidence

Letter of claim

We will notify the Defendant in writing and submit full details of the claim to their insurance company who may then request further information before deciding whether to accept or contest liability (blame). If they reject liability (blame), we will begin preparing a legal case against them.

Issuing court proceedings

It is often possible to settle a claim without issuing court proceedings i.e registering the claim with the court. In order to allow sufficient time for rehabilitation and assessment, in serious brain injury cases, it is not always possible to conclude the claim within three years of the injury. In such cases we will issue court proceedings by filing a claim form with the court. This includes a document known as the Particulars of Claim.

Assessing the extent of your injury

You will need medical reports setting out in as much detail as possible the precise nature and effects (current and anticipated) of your injuries. We will be able to advise you on how to respond to medical experts’ questions and ensure that their reports fully capture the extent and impact of your injuries.

Care needs assessment

People with more serious brain injuries will often depend on help from carers and members of their family to carry out the functions of daily life. An important part of the work we will do in constructing your case is to compile detailed evidence of the issues you face and the extent of your reliance – current and future – on care and assistance from other people.

Rehabilitation

Early and appropriate rehabilitation can prove highly beneficial for people with brain injuries. Help with therapy, retraining, specialist equipment, and modifications to accommodation and transport can all have a role to play. Because we have a great deal of specific brain injury expertise we can play a particularly valuable and proactive role here, ensuring you see specialists with the right skills and resources to maximise your potential for returning to a self-sufficient and fulfilling lifestyle.

Schedule of damages

We will prepare a document (preliminary schedule of damages) capturing all financial losses that have so far resulted from your injury – backed by with receipts, reports and other supporting evidence.

As the claim progresses we will update this schedule to capture all additional items of expense, so that a final schedule – including an estimate of future loss of earnings and future expenses – can be submitted as the basis for settlement negotiations with the defendant insurer or a court case, if it comes to that.

Interim payments

We may be able to submit and secure payment of interim applications for damages, care and treatment needs as the claim progresses. The insurer may well see a benefit in funding any treatment that could ultimately reduce the severity of your injury.

Negotiated settlements

Once your final schedule has been submitted, the defendant’s insurance company may decide to make an offer rather than see the case go to court – with all the additional expense that could imply should they lose. If this happens we will be able to advise you whether or not to accept any such offer. This involves a detailed consideration of pros and cons – in particular the difference between the proposed settlement and what you might receive in compensation if the case went to court. Of course, the final decision is yours.

Going to court

The relevant Civil Procedure Rules put an increasingly strong emphasis on narrowing the scope of disputes and reaching some form of consensual resolution before the case comes up for trial.

Because of the complexity and the high levels of damages typical of brain injury claims, it will sometimes prove impossible to settle a brain injury case without going to court.

Brain injury cases are heard by a judge in a civil court. They are not usually hotly contested or acrimonious affairs, and very often it will not be necessary for the injured person to give evidence in person. The emphasis is far more on the various expert reports submitted.

Does it matter which solicitor I choose?

It is very important that you talk to an experienced specialist law firm like Fletchers. You should consult the Headway approved list of solicitors to ensure that your solicitor has the relevant brain injury experience. Headway can provide you with a list of questions to ask your solicitor to ensure he/she has sufficient experience / knowledge of brain injury.

Can I change solicitor?

It is your right – and yours alone – to decide who represents you in a claim for compensation.  Using a firm without the necessary specialist expertise can prove a costly mistake. So if you are at all unsure about the quality of legal advice you are receiving from another firm, you are perfectly within your rights to seek a second opinion and switch solicitor if you so choose.

What if the accident / injury was my fault?

Even if you believe your injuries resulted partly from your own actions you may still be entitled to compensation. If you can show that someone else was a least partially responsible for causing your injuries, you will almost certainly be able to claim.

Who will my claim be against?

The people and organisations from whom you may be able to claim compensation (“the defendant”) could include:

• The driver of a vehicle involved in a road traffic accident (RTA) in which you sustained your injury (this could include a vehicle in which you were a passenger)
• A local authority, if your injury resulted from a slip and trip accident in a public place, or the owners or occupiers of any private premises in which you were injured (public liability) – or your employer if you were injured at work (employers liability).
• An NHS Trust if your injury results from medical error or misjudgement (clinical negligence)

In practice you will be dealing with the defendant’s insurance company and their legal representatives.

Under certain circumstances there may be no defendant in the normal sense and you may need to seek compensation from another source:

• The Motor Insurers Bureau (MIB) if the driver involved in an RTA is uninsured or cannot be traced following a hit and run incident
• The Criminal Injuries Compensation Authority (CICA) if you are victim of criminal assault (applications to the CICA for compensation are subject to two year time limit)

How will my claim be funded?

We can help you pursue your claim at no cost using what is known as a Conditional Fee Agreement (CFA) or “no win no fee” agreement. Your own legal costs are recovered from the Defendant insurer on conclusion of the claim. An After The Event insurance policy (ATE) can protect you against the risk of having to pay defendant’s costs if your claim is rejected in court.

Will a barrister be involved in my case and if so, what do they do?
How long will the claim take?
Will I have to go to court?