A concussion is a mild traumatic brain injury (TBI) that usually occurs after a blow to the head, but it can also come from having one’s head and upper body violently shaken. Concussions are not uncommon. Most people think of concussions as happening during football games or fights, but they can also be caused by car accidents or falls.
Most concussions do not cause loss of consciousness. The symptoms of concussion can include headaches, inability to concentrate, and impairment of memory, judgment, balance and/or coordination. Most concussions are mild, and most people who get concussions recover fully.
After an accident, you may be able to make a claim for the injury – as well as a claim for the pain you’ve suffered – but you’ll need to prove someone else was responsible for the accident, and you’ll need medical evidence to back up your statements.
Post-concussion syndrome is a complex condition in which the patient’s symptoms can last for weeks, months, or even a year or more after the concussion. Approximately 10% of people who get concussions suffer from post-concussion syndrome.
The symptoms of post-concussion syndrome are similar to those of concussion, but can also include new complications such as dizziness, fatigue, insomnia, irritability, anxiety, light and noise sensitivity, and behavioral or emotional changes. The symptoms are worse in some people than in others. Post-concussion headaches can feel like migraine headaches, but are usually more like tension headaches. The physiological aspects of post-concussion are still not completely understood. Medical experts still do not agree on exactly why some people get post-concussion syndrome, whether a person’s symptoms are in fact post-concussion syndrome as opposed to more regular headaches, and how and why post-concussion syndrome occurs physically in the body.
Concussions are like any other diagnosis. You can only claim damages for a concussion injury as part of a personal injury case if your doctor believes that it is related to the accident that is the basis of your lawsuit, and writes that in his/her medical records.
A plaintiff can only claim damages for a particular medical condition if his/her physician has a medical opinion that that condition was caused by the accident. If you believe that you suffered a concussion and your doctor does not, or if you believe that your post-concussion syndrome was caused by your accident and your doctor does not, you won't be able to claim damages for the injury. If that situation occurred, you would need to find another doctor who agreed with you before you could include those damages in your injury claim.
As part of your accident claim, you should be able to demand compensation for pain and suffering. You prove pain and suffering from your own testimony and from your doctor’s testimony. You need your doctor’s testimony to document that you in fact have suffered a concussion (and maybe post-concussion syndrome), that the concussion resulted from the accident, and that the symptoms that you have testified to come from the head injury, among other things.
But the jury will want to hear from you as to exactly what your symptoms and complaints are, how long they have lasted, how disabling they are, and how generally they have affected your life. You will have to be able to explain all this to the jury at trial, and so you will want to work carefully with your lawyer to prepare your pain and suffering testimony.
The biggest problem with claiming damages for post-concussion syndrome is that its symptoms can sometimes be vague and that reasonable physicians can differ as to whether a specific patient indeed has post-concussion syndrome. This is also true for more severe cases of TBI.
When trying to settle a post-concussion syndrome case, you will run into the problem that insurers like their claims to be straightforward and obvious. They like broken leg cases. Everyone knows what a broken leg is, how to diagnose it, how long the recovery period is, and what the symptoms are. Because post-concussion syndrome is not so clear, insurers may not offer top dollar, and you may be forced into going to trial.
At trial, you may run into the same difficulty. The jury will also want to make sure that it understands exactly what your injury is, and post-concussion syndrome can be difficult to distinguish from other headache-like conditions.
Another problem might arise if your doctors disagree as to whether you have post-concussion syndrome. Jurors like it when all of the plaintiff’s treating physicians agree. Jurors understand that insurance doctors generally disagree with the treating physicians, and so they usually discount what the insurance doctors say. But if your treating physicians disagree as to whether you have post-concussion syndrome or not, the jurors might wonder if you really have that condition, and that can prove to be a problem for you.