21 Trial Lawyer • Fall 2022 See Brain Injury p 22 after the crash testified the responding officer said her husband was “out of it” and recommended he be evaluated. The fact that Smith’s head CT was negative for intracranial bleeding did not preclude a mild TBI diagnosis. Medical expenses We claimed $53,341 in medical expenses. Dr. Erb testified the treatment was reasonable, necessary and related to the collision and reasonable in amount. Medical care included an urgent care visit on the night of the collision in which a physician assistant (PA) diagnosed head injury, a follow up visit with Smith’s primary care doctor’s physician assistant at which Smith reported striking his head on the pavement in the collision. Since then he reported experiencing constant frontal headache, brain fogginess, difficulty carrying on conversations and noise sensitivity. The PA diagnosed post concussion syndrome, ordered a head CT to rule out brain hemorrhage and recommended brain rest with no TV, reading or computer for one to two weeks. The head CT showed no fracture or bleed. Smith’s symptoms persisted and included daily headaches worse with screen time including computers, increased noise sensitivity, irritability and mild short term memory loss. His PCP referred him for cognitive rehabilitation and prescribed amitriptyline. Occupational therapy included assessment noting headaches, irritability, light and noise sensitivity, fatigue and discontinued engagement in meaningful activities with decreased tolerance of sensory stimulation. The OT clinician noted visual limitations in areas of convergence, smooth pursuits, pupillary function and oculomotor function. Smith received several weeks’ OT. Eventually, when his symptoms did not resolve, Smith’s PCP referred him to Dr. Erb, who, with a multi-disciplinary team, recommended a comprehensive rehabilitation program two-three days per week for eight weeks, to address core cognitive skill building, cognitive and physical endurance building, vision, compensatory strategy training, high level balance and vestibular training, pain management strategies, sleep hygiene, emotional adjustment, client and family education, social functioning and return to community. He completed the program and was discharged with the diagnosis of mild concussion/traumatic brain injury, with a treatment plan that included continued Gabapentin at night, propranolol at dinner with monitoring for headache improvement, continued nutrition and hydration monitoring, continued headache monitoring. We elected not to include expenses for counseling. While Smith had some counseling, the costs were modest, had been largely paid by health insurance and would if claimed be subject to reimbursement. More importantly, the counseling records raised personal issues unrelated to the head injury we anticipated the defense would seize upon. Whether to seek recovery of counseling costs should be made on a case-by-case basis. Before including counseling costs in a mildTBI case claim, conduct a careful review of the records to determine whether they include extraneous yet damaging past events or other stressors and, if so, a critical analysis of their impact on the case is important. Dr. Erb also referred Smith for a vision evaluation which determined Smith had sustained a traumatic brain injury with esophoria, convergence excess, The defendant drove through the intersection above and collided with the bicyclist when she turned into the driveway for a business on the far side of the intersection. The red vechicle, seen here, is turning into the same business driveway.
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