Defending the Pediatric Traumatic Brain Injury Case

The first step is to define the plaintiff. The term “pediatric” encompasses birth through adolescence. Age, however, cannot be the exclusive defining factor because the child's status as a student also plays a role. Thus, the discovery tools explained below apply to the injured college student as well. More important, counsel must be aware of factors — race, socioeconomic background, family relationships, education, state of residence, and health — besides the child's age that influence the child's development. The pediatric plaintiff must be treated by counsel as a complex individual whose development is shaped by these factors.

The next step is to define a “traumatic brain injury.” A TBI can be defined as an injury from any source that “disturbs or damages brain function.” Blackwell, Powers, Weed: Life Care Planning for Traumatic Brain Injury, 1 (1994). Brain injuries are caused by a variety of events: assaults, strokes, tumors, motor vehicle accidents, sporting event injuries, falls, workplace accidents, medical malpractice, and illicit drug use. While the cause of the injury is certainly important, the defense attorney also must understand and appreciate the impact of the injury on the child's brain function. To fully develop the defense liability and damage strategy, the attorney has to examine the child's pre-accident medical history and the injury's effect on the child's academic, cognitive, mental and emotional development. The defense attorney — and for that matter the plaintiff's attorney — must treat the pediatric-plaintiff as a unique individual and not stereotype the child's injury based upon other closed-head trauma cases the attorney has litigated.