Winning Cases for Elderly Individuals with TBI

by Steven Gursten
Michigan Auto Law

The biggest challenge that lawyers face in helping elderly traumatic brain injury (TBI) survivors is dealing with defense tactics meant to trivialize the significance of the TBI.

Insurance company adjusters and defense lawyers will say, in effect, “so what?” It’s as if an older person’s brain doesn’t matter as much because they are older. These adjusters and defense lawyers say that if the TBI survivor is due any compensation at all, it should be minimal because he or she was already old and probably already having problems with memory and concentration.

Defense attorneys will say that the settlement value of these cases are worthless because these people are already old, implying they already have lots of pre-existing, and thus they should get a discount. You are old so you are “worthless.”

As outrageous as this sounds, what they are really saying is that they should get a discount because the person who they hurt – or whose brain they injured – was old.

Helping Individuals in Elderly Head Injury Cases

The good news is that older car accident victims with head injuries should not abandon hope of getting full and fair compensation.

There are successful strategies that lawyers representing elderly TBI survivors can pursue to refute these defenses. The key is to confront this age bias head-on by making the following common-sense counterarguments:

• Negligent drivers should not get a pass or a discount for their dangerous actions because they hurt an older person.
• Embrace, don’t fight, over pre-existing medical and health conditions. This is what makes the injury more devastating, not less devastating, than it would be for a younger person.
• A person’s pain – and the trauma of a brain injury – is NOT worthy of less sympathy or compensation just because that person is older and has had the good fortune of living a long life.
• A person’s golden years are worth more, not less. These are the years that people have worked a lifetime to earn. The remaining years are more valuable, not less valuable.

Medical Challenges of Representing the Elderly TBI Patient

The challenges faced by elderly TBI survivors and those committed to helping them do not stop when there is a settlement.

An important study, “Risk factors predicting prognosis and outcome of elderly patients with isolated traumatic brain injury,” published in the Journal of Orthopedic Surgery and Research, found:

• “Traumatic brain injury (TBI), particularly in the elderly patient population, is known to be the single largest cause of death and disability worldwide.”
• There is “a strong correlation between respiratory failure, pathological pupillary [light reflex] response, a higher ISS [injury severity score], and substantial midline shift with poor outcomes in elderly patients sustaining an isolated severe TBI.”