How Do I Get My Doctor To Help Me Document The Full Extent Of My Child’s Head Injury?

The head is the most common body region injured in motor vehicle crashes for children age birth to seven years and head injury outcome in children can be worse than similar injuries sustained by adults.

Children who suffer traumatic brain injuries (TBIs) can experience lasting or late-appearing neuropsychological problems. For this reason, head injuries should be of particular concern to parents of children injured in motor vehicle traffic crashes. Proper diagnosis and treatment is critical. So is marshalling the legal evidence necessary to prove the link between the crash or other trauma and your child’s deficits. Proving future deficits is one of the most vexing issues that arise in child head injury cases.

In children, some neurological deficits after head trauma may not manifest for many years. Consider that frontal lobe functions develop relatively late in a child’s growth, so that injury to the frontal lobes may not become apparent until the child reaches adolescence when higher level reasoning develops. Since the frontal lobes control social interactions and interpersonal skills, early childhood brain damage may not manifest until such frontal lobe skills are called into play later in development. Likewise, injury to reading and writing centers in the brain may not become apparent until the child reaches school age and shows signs of delayed reading and writing skills.

How can you obtain compensation now for deficits that may not show up until many years later? How can you prove now what may happen later? Head injury legal claims are challenging precisely because of these kinds of considerations.

The standard for admitting evidence on considerations of this nature is “a reasonable degree of medical certainty.” Your child’s doctor must be willing to testify to a “reasonable degree of medical certainty” that the trauma sustained by your child caused or will cause the future deficits. What does this phrase “a reasonable degree of medical certainty” mean?

It’s been observed that the phrase is almost an oxymoron. Normally the word “certainty” means certain. But the adjective “reasonable” negates the absolute connotation of the word “certainty.” But if you push past the awkwardness of the phrase to how it is employed in the courtroom it makes more sense. In actual trial practice the evidentiary standard is “more likely than not” or “more probable than not.” This is a lower standard of proof than certainty and also lower than the “beyond a reasonable doubt” standard (which is the standard used to convict a defendant in criminal cases). Essentially the standard is whether your doctor can say that it is “more likely than not” that the trauma will cause your child to suffer a particular deficit in the future.

Many medical doctors don’t understand what I said in the last paragraph. They don’t want to get involved with a legal claim unless there is overwhelming proof that the trauma caused a deficit. They in effect think there must be enough evidence to prove it “beyond a reasonable doubt.” They are not aware of the correct legal standard. This is unfortunate as it results in many families not getting enough compensation to provide for the future care of their injured child.

I talk with my client’s doctors before they give any testimony and educate them on the correct standard of proof. I ask them to tell the truth, no matter what that may be. I request that they review their treatment of the child with an eye toward helping the family prove all related deficits that have or may flow from the trauma. I encourage them to understand that the law only allows the family “one bite of the apple”, one chance to get justice, and that when the legal claims ends they can never reopen the case even if it turns out their child has far more profound deficits than we proved.

If your child has suffered a head injury, you are dealing with one of the most complex and challenging of all claims. You would benefit greatly from talking to an attorney. There are many related issues that arise in the context of child TBI claims that are not for the uninitiated. Please call me if, due to the fault of another, your child has sustained a brain injury. The call is free, you are under no obligation to hire me, and I will do my best to point you in the right direction.

Sources: http://www-nrd.nhtsa.dot.gov/Pubs/811325.pdf

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to seven and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.

 

Spinal Cord Injury In Children: Unique Biomechanics Require Specialized Legal Knowledge

Acute spinal cord injury (SCI) is a common cause of permanent disability and death in children and adults. 44% of SCIs are caused by car accidents. Nearly 10 percent of new SCIs in the United States occur in children ages 1 to 15. In children under 8 years of age, spinal cord injuries are most often located in the cervical spine (the neck).

Children are not just miniature adults. Their anatomy and biomechanics are unique. This is nowhere more true than in the cervical spine.

Some of the differences between adult and child anatomy can be seen in the following illustration:

Adult-and-child-skeletons

Children have a disproportionately larger head, underdeveloped neck muscles, and a much more flexible spinal column. Yet the increased flexibility of a child’s spinal column (when compared to an adult) does not proportionately apply to their spinal cord. A child’s spinal column has up to 2 inches of “play”, while the spinal cord has more like a mere quarter inch.

This unique anatomical feature in children means that in a motor vehicle accident the spinal column may flex in one or more directions that exceeds the flexibility of the child’s spinal cord. This can cause grave injury.

Because of these anatomical differences, a child’s neck is likely to be more injured than an adult’s when the same forces are applied. Some of the most common injuries to the spine in children are: facet dislocations, posterior ligament injuries, and wedge compression fractures.

So how does the unique spinal anatomy of children affect your injury claim? It’s all about biomechanics. Biomechanics, in the legal arena, refers to the proof of the mechanism of injury (what factors, what forces, what objects caused the injury and how?) It is imperative that your attorney have an understanding of both the unique anatomy and biomechanics that affect your child’s injury claim.

Without this specialized understanding, your child’s claim will suffer. This is such important knowledge because many insurance companies deny or seek to minimize the impact of an injury on a young child. They argue that the children are more resilient than adults and can be expected to “bounce back” more quickly. They deny the unique vulnerability of the child’s body to injury. Your attorney must have the specialized knowledge to disabuse the insurer of those misconceptions. 

Children are not just miniature adults. Their spines differ considerably from adults. Children are susceptible to a different spectrum of injuries, some of which can be devastating because they occur most often in the upper cervical spine.

Please call me or another qualified child injury attorney if you need help with your child’s injury claim.

Sources:

National Spinal Cord Injury Association / Pediatric Spine – Not Just Smaller – Different / Injury Mechanisms in the Pediatric Cervical Spine During Out-of-Position Airbag Deployments

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Attorney Pete Pearson practices personal injury law in Atlanta, Georgia and has a special interest in helping families of injured children. He is a father to six and lives with his wife and children in Conyers, Georgia. He can be reached directly at Six-Seven-Eight 358-2564. 

Can Doctors Be Sued For the Wrongful Death (or Injury) of An Unborn, Pre-Viable Child?

At least nine states allow recovery of damages for the wrongful death (or injury) of a pre-viable baby. Viability refers to the ability of the baby to survive outside the womb, even if only in an incubator.

Two more states, Georgia and Mississippi, permit recovery for the wrongful death (or injury) of an unborn child if the mother has felt the baby move inside the womb prior to the time of the injury. This movement is referred to as “quickening.”

Quickening occurs earlier than viability. Courts in Georgia have recognized that quickening can occur as early as 10 weeks into a pregnancy. One way to prove that quickening has occurred is to produce medical documentation that the mother felt the baby move prior to the injury or death.

On February 17, 2012, the Alabama Supreme Court decided the case of Amy Hamilton, individually and on behalf of her stillborn son v. Dr. Warren Scott et al. The issue in this case was whether under Alabama law a physician can be sued for the wrongful death (or injury) of an unborn, pre-viable fetus. A lower court had decided that Alabama law did not permit lawsuits on behalf of unborn children who were unable to live outside the womb at the time of the death or injury. The Alabama Supreme Court reversed the lower court and recognized that a family who loses an unborn child has the right to sue when their baby dies due to medical negligence, whether or not the child had reached the point of viability.

This welcome decision from the Alabama Supreme Court is part of a broader trend in some states to recognize that unborn children, no matter their stage of development, are persons and should enjoy the full protection of the law.

Georgia courts would do well to look to the Hamilton vs. Scott decision as persuasive authority. I have argued in an earlier blog post that I believe Georgia law should recognize a cause of action for wrongful death or injury to an unborn child at any point in a pregnancy when the death or injury flows from the negligence of a person other than a family member.

I hope you will join me in celebrating the Hamilton vs. Scott decision! 

Sources:

Alabama doctors can be sued for death of unborn, pre-viable child

Hamilton vs. Scott decision

Injury to Fetus During Automobile Accident – Reforming Georgia Law

When a pregnant mother is involved in an automobile collision and her unborn child is injured or killed, do the parents have a claim for the harm caused to their unborn baby? And if so, is the claim viable no matter how early in the pregnancy the injury to the fetus occurs?

The answer to the first question in the State of Georgia is “It depends.” The answer to the second question is currently “No.” but I would argue that the answer should be “Yes.” and Georgia law should be reformed. If I’ve thoroughly confused you with those answers, read on for a fuller explanation!

In the State of Georgia, under Porter v. Lassiter, 91 Ga. App. 712 (1955) and its progeny the central issue has been framed in terms of the legal fiction of “quickening.” An unborn child that has quickened and then is injured or killed has legal rights. An unborn child that has not reached that stage of development has none.

Georgia law does not give a definite time in a pregnancy when quickening occurs, but decisions have stated that quickening generally occurs sometime between the tenth week and the fourth month of pregnancy. See Brinkley v. State, 253 Ga. at 542; Biegun v. State, 208 Ga. 618, 627 (7) (58 SE2d 149) (1950). The Courts have held that the relevant question is whether the baby has reached the stage where the mother can feel fetal movement. See. Citron et al. v. Ghaffari et al (246 Ga. App. 826) (542 SE2d 555) (2000)

Georgia is unique in its adherence to the legal fiction of “quickening.” The majority of jurisdictions that recognize a cause of action for wrongful death of a fetus limit such actions to claims arising after the fetus is viable. A viable fetus is “capable of independent existence outside his or her mother’s womb, . . . even if only in an incubator.” Black’s Law Dictionary, p. 1566 (6th ed. 1990). Viability thus presumably occurs later than quickening. Only a few states recognize a cause of action for wrongful death at any point in a pregnancy.

I believe Georgia law should recognize a cause of action for wrongful death or injury to an unborn child at any point in a pregnancy when the death or injury flows from the negligence of a person other than a family member. The Georgia legislature has already provided a basis for such a change when in 1991 it passed into law a Feticide by Vehicle law that applies to the earliest stages of pregnancy. For purposes of criminal prosecutions under O.C.G.A. § 40-6-393.1(a), an “unborn child” is defined as a member of the species homo sapiens at any stage of development who is carried in the womb.

The existence of a Georgia Fetal Protection Act (sometimes referred to as a PreBorn Victims Act or Unborn Victims Act) defining Fetal Homicide in a manner that includes babies at all stages of development in the womb has other important ramifications that could assist a family in securing fair and adequate compensation for an injury to their baby. It has to do with how much insurance coverage may be available to compensate the family of an injured unborn child.

Many insurance policies provide a set amount of coverage for each person that was injured. So, within the overall limits of the policy, each additional injured person increases the pool of funds available for compensation. The recognition by the State of Georgia that an unborn child is “a member of the species homo sapiens” should be interpreted by the Courts to mean that for purposes of determining insurance coverage, unborn children are treated as separate and distinct persons, thereby increasing the pool of funds available to compensate child victims and their families.

Just to be clear, however, the current state of the law in Georgia is that in order to recover for injuries to an unborn child, it must be shown that at the time of the injury/death the child had reached a stage in its development where the mother could feel fetal movement. This has been recognized to occur somewhere between the 10th week and 4th month of pregnancy. That is a wide window – the key to proving quickening is to have some documentation (commonly a medical record) that the mother had been feeling fetal movement prior to the injury or the testimony of a doctor that the baby had reached the stage of development where the mother could have felt movement.

03/13/2012 UPDATE: Be sure to check out my more recent reflections on this topic and some good news from the State of Alabama.

 

Drivers Backing Over Children Most Common Form of Non-Traffic Injury

In the United States approximately 50 children are backed over by vehicles every week. 48 require treatment at an Emergency Room and 2 die each week. These children are injured and die because adults (70% of the time parents or relatives) do not see them when backing up.

Drivers backing over children (Backovers) is the most common form of non-traffic fatalities for children under the age of 15. Drivers driving forward over children (Frontovers) is the 2nd most common form of non-traffic fatalities for children under the age of 15. (Source: Kids and Cars.org).

Backover and Frontover injuries occur because all vehicles have blind zones – the area behind (or in front of) a vehicle that the person sitting in the driver’s seat can not see. To help parents realize how big some vehicle’s blind zones can be, Consumer Reports has measured the blind zones of popular vehicle models and published the results for free.

This Kids and Cars PSA video does a great job of raising awareness of the danger to young children –

Since 70% of the time Backover and Frontover injuries/fatalities are caused by family or close relatives the incidence of these tragedies goes up around busy times of the year, like holidays. Most of these incidents occur in the child’s own driveway or in a parking lot. The typical age of victims is between 12-23 months (young toddlers).

Because so often these types of injuries and deaths involve an at-fault family member, it can be extremely emotional and difficult to know whether to consult with an attorney. Moreover, if a family decides to investigate their legal options, there are legal challenges inherent in this type of claim.

The long standing rule In Georgia is that there is intra-family tort immunity (which means that generally speaking you can not sue a close family member for negligence). The rationales behind this immunity include preservation of family harmony and protection against the possibility of collusive or friendly lawsuits.

Yet in recent decades Georgia Courts have held that intra-family tort immunity is no longer a blanket defense in injury cases. For example, the Georgia Supreme Court has held that there is not a valid rationale for applying the interspousal immunity doctrine to wrongful-death actions and has accordingly held that the application of that doctrine to wrongful-death actions is unconstitutional. Similarly, the Georgia Court of Appeals has concluded that the common-law doctrine of intra-family tort immunity does not operate as a bar to a claim brought be an ex-husband against the estate of his former wife seeking to recover for the wrongful-death of their daughter.

Another potential bar to recovery in a Backover or Frontover case is that the relevant policy of insurance may contain an exclusion to the liability coverage when the injured or killed party was a family member of the policyholder. It is imperative to have a lawyer review a copy of the policy and advise regarding the enforceability of such provisions (known as “family exclusion clauses”). They may be void as against the public policy of the State of Georgia.

Investigating coverage and possible sources of recovery for the family of a child injured in a Backover or Frontover case is complex. Hiring an attorney can provide much needed guidance and reassurance for parents who find themselves in these tragic circumstances.