chapter  10
28 Pages

Causation, Damages, Outcome, and Impairment Determination following Traumatic Brain Injury

The most likely legal scenarios in which the physician examiner will see traumatic brain injury (TBI) will be in personal injury litigation, workers’ compensation claims, criminal proceedings where responsibility or competency is an issue, general competency, and testamentary capacity. There are other scenarios possible, of course. Before the law, personal injury litigation is treated as a tort. A tort is a private or civil wrong. A personal tort is one involving an injury to the person or to the reputation of the person. It is distinguished from an injury or damage to real or personal property, which is called a property tort. When TBI cases are brought to a civil court as a personal injury, they are claimed by a plaintiff. The defendant will be the tortfeasor, the person or entity causing the injury. By taking a claim of TBI to court, the injured party asks the court to provide a remedy in the form of an action for damages. Damages are compensation (usually money) that may be recovered in the courts by a person who has suffered a loss, detriment, or injury to his person as a result of TBI. Depending on the jurisdiction, the plaintiff is entitled to compensation not just for mental distress and pain, but for suffering, anxiety, depression, and fear. From a TBI standpoint, the person is compensated for the loss of brain function as a result of TBI. Other causes of action which may demand damages in a TBI case would include depression, posttraumatic stress disorder, or more classical psychiatric disorders produced by TBI. Thus, any of the diagnoses discussed in Chapter 2 conceivably could become a claim for damages in a tort action raised by alleged TBI.1