Traumatic Brain Injury (TBI) typically occurs when the head suffers an impact. A familiar example of an intentionally-induced TBI is a “knockout” in boxing – it is the concussion that knocks a fighter out. Although serious cases frequently lead to death or disability, mild cases usually result in no permanent damage. Recently, however, researchers have uncovered evidence that mild TBI can lead to serious emotional distress.
The TRACK-TBI Study
A 2019 study released by the TRACK-TBI (Transforming Research and Clinical Knowledge in Traumatic Brain Injury) project, entitled Risk of Posttraumatic Stress Disorder and Major Depression in Civilian Patients After Mild Traumatic Brain Injury, reports a disturbing correlation between even mild TBI and both PTSD and clinical depression.
The study, which enlisted the participation of nearly 1,400 hospital patients from 11 US hospitals, found that levels of PTSD or depression were about 75 percent higher among patients hospitalized for mild TBI than among patients hospitalized for other reasons (21.2 percent vs. 12.1 percent, respectively) for up to six months after their injury. Most of the TBI patients were hospitalized after a traffic accident.
Weaknesses in the Evidence
Although the study does not purport to conclusively establish that TBI causes either of these conclusions, it is a permissible inference – especially for personal injury attorneys representing TBI victims who wish to claim compensation for the emotional distress caused by PTSD or depression.
The study’s major weakness is the simple fact that a correlation between two variables (TBI and either PTSD or depression) does not, by itself, conclusively establish that one variable caused the other. Since some of the TBI victims may have been particularly vulnerable to PTSD or depression even before their accident, the inference that a concussion is likely to result in depression or PTSD is unlikely to be justified.
What Is PTSD?
PTSD is a psychiatric disorder that can occur in people who have experienced a traumatic event in their lives – either first-hand or vicariously. Although it has been strongly associated with combat experience, you don’t have to be a combat veteran to be at risk for PTSD. In fact, it has been estimated that more than one in ten people will be diagnosed with PTSD at some point in their lives. Statistically, women are twice as vulnerable to PTSD as men are.
Following are some of the most common symptoms of PTSD:
- Intrusive, disturbing thoughts and feelings about the experience that triggered their condition, often for years after the event has passed;
- Flashbacks and nightmares relating to the experience;
- “Re-living” the emotions triggered by the experience, such as anger, fear, or grief;
- A feeling of detachment from others, including loved ones;
- Avoidance behavior (refusing to go to the beach after witnessing a shark attack, for example);
- Extreme reactivity to anything that reminds the sufferer of the triggering event (the sound of a balloon popping, for instance);
- Distorted beliefs (“Everyone is a liar,” for example); and
- Difficulty concentrating or sleeping.
Keep in mind that everyone experiences a few of these symptoms from time to time. It is when clusters of the foregoing symptoms occur frequently that PTSD may be the culprit.
What Is Depression?
Everyone has had the blues before. But clinical depression goes far beyond anything that could be characterized as “the blues.” When you have it, depression is all-pervasive – it affects how you think, how you feel, and how you act. Like PTSD, symptoms of depression can vary from mild to severe. Some of the most common symptoms include:
- Loss of interest in formerly pleasurable activities;
- Changes in appetite (in either direction);
- Changes in number of hours of sleep (in either direction);
- Fatigue or loss of energy;
- Repetitive physical activity, such as pacing;
- Slow movements and speech;
- Feelings of guilt or worthlessness;
- Difficulty concentrating;
- Thoughts of suicide; and
- Involuntary early morning awakenings (5:00 am every morning, for example).
Unfortunately, there is nothing uncommon about depression. In any given year, about one in 15 people suffer from it.
Some of the most common methods for treating depression include:
- Prescription antidepressants such as Prozac;
- Psychotherapy – in particular “talk therapy” and cognitive behavioral therapy (CBT);
- Electroconvulsive Therapy (in extreme cases); and
- Self-help and coping techniques such as regular exercise, quality sleep, healthy eating habits, and avoidance of intoxicants such as alcohol.
Although most sufferers recover within a few weeks to a few months, some people take years to recover.
How PTSD and Depression Factor into Personal Injury Verdicts and Settlements
In most cases, it is impossible to recover damages for emotional distress in a negligence case unless the distress is accompanied by a physical injury. Once a physical injury is established, however, your chances of recovering compensation for both your physical injury and the accompanying emotional distress are multiplied.
The Noneconomic Component of Personal Injury Damages
Most people realize that, if you win a personal injury claim, you are entitled to compensation for your economic damages such as medical expenses and lost earnings. Some people don’t realize that it is also possible to recover compensation for what Connecticut refers to as “noneconomic damages.” Noneconomic damages include not only compensation for physical pain and suffering, but potentially, compensation for emotional distress arising from your injury.
In this case, you might be able to recover for the emotional distress caused by depression or PTSD arising from TBI if your doctor concludes that your emotional distress was caused by your head injury and records the same in your medical records. If your doctor does not support your claim that your head injury is the ultimate cause of your emotional distress, your claim could be in trouble.
Causation: A Critical Link in Establishing Emotional Distress Damages
“Causation” is something that you must prove to win a personal injury claim, especially if you are claiming compensation for PTSD or depression-related emotional distress. Ultimately, you will have to prove three facts:
(i) That the defendant’s wrongful act or omission caused your accident. This could be a straightforward matter if, for example, the defendant ran a red light and collided with your car while it was crossing an intersection. It might be more difficult if you are claiming that your doctor committed malpractice during neurosurgery.
(ii) The accident caused your TBI. This could be tricky to prove. The defendant might allege that you had a pre-existing condition, for example.
(iii) The TBI caused the PTSD or depression that you are suffering from. This allegation is perhaps the most difficult of all to prove because the link between TBI and PTSD or depression is still not conclusively established scientifically.
The defendant (or his insurance company) will seek to attack any of the foregoing links. And if any one of them breaks, you probably won’t be compensated for emotional distress (although you might still be compensated for medical bills, physical pain and suffering, etc.).
How to Calculate Damages for Emotional Distress
It’s a fairly straightforward matter to calculate damages for medical expenses, even when some of these damages represent anticipated future medical expenses. Likewise, it’s not all that difficult to calculate the value of lost earnings. But how do you calculate the value of emotional distress? No one is really sure, but it is not terribly uncommon for a jury to award sizeable sums for this element of damages.
Remember that in private settlement negotiations, the amount of money that the defendant (or, more likely, his insurance company) is willing to part with is strongly colored by his own estimate of how much money a jury is likely to award you if he breaks off negotiations and forces the case to trial. Some of the factors that could heavily influence how much a jury is willing to award you for the emotional distress component of your damages include:
- Whether the jury likes you personally;
- Whether your testimony is consistent;
- Whether you appear to be exaggerating the extent of your emotional distress;
- Whether your doctor supports your claim;
- Whether you have been caught lying about anything at all (the general rule is that if you lie, you lose); and
- Whether your claim “makes sense” at an intuitive level.
How to Prove You Are Entitled to Damages for Emotional Distress
When it comes to a personal injury claims, the harsh reality is that truth doesn’t matter unless you can prove it with admissible evidence. Below are some ways you might attempt to prove your entitlement to damages for emotional distress arising from TBI-triggered PTSD or depression:
- A written statement from a healthcare provider such as a psychologist, psychiatrist, or your family physician that supports your claim.
- Testimony from an expert medical witness who has reviewed your case and come to a conclusion that is favorable to your claim.
- Letters from your family, friends, employer, and co-workers stating how they have observed the changes in your emotional condition since your accident.
- Evidence of any prescription medication you are taking, particularly antidepressants or anti-anxiety medications (for PTSD).
- Your journal, where you describe your symptoms in detail. Hopefully, your accounts will have the “ring of truth” to them.
- The TRACK-TBI study mentioned above, or other scientific evidence, to establish a link between mild TBI, PTSD, and depression.
Compensation for PTSD or Depression-Induced Lost Earnings
It is not merely difficult to work during an episode of major clinical depression – it is virtually impossible. Motivation, memory, concentration, and physical vitality are all drastically affected by depression. Even if you fail to win the amount of direct compensation for your emotional distress that you had hoped for, you might still take home a tidy sum if you lost significant earnings due to your condition.
Take Action Today
If you are suffering from PTSD or depression that you believe was caused by a traumatic brain injury, and if you believe that your injury was caused by someone else’s culpable behavior, you need professional legal assistance immediately. Although your case might be legally complex, it may also be winnable and it won’t cost you a dime to try. Because at Berkowitz Hanna, we charge you nothing, ever, unless we win your case.
Contact Berkowitz Hanna today to schedule a no-obligation case evaluation. Call now or contact us online to get started.