One of the most common injuries after being in a motorcycle crash is injury to the brain.  To better represent the clients I represent that have sustained traumatic brain injury as a result of a motorcycle crash I spent this past Thursday and Friday at the Brain Injury Conference sponsored by the Utah Association for Justice.

The Brain Injury Conference had some of the leading cutting-edge clinical researchers dealing with traumatic brain injury.  One of the most interesting themes of the conference was the leaps and bounds that are being accomplished every day to dramatically show the actual injury to the brain.  Another theme was showing how to tie together the traumatic injury with exhibited behaviors of the brain injured client.  Some of the panelists present at the conference included Dr. Randall Benson, Professor Erin Bigler, Dr. William Singer and Dr. Wendell Gibby, to name a few.

One of the biggest problems facing a trial attorney who represents a brain injured client is to show to the jury independent and objective proof of the brain injury.  In other words, defense counsel often claim that the brain injured person is simply faking his injury. It used to be that brain injury was the hidden injury.  A brain injury is not like a broken bone - you take an x-ray and show the jury the broken bone and they believe you.  It is much more difficult to show injury to the brain - at least until recently.

Recent advances in brain imaging includes different types of magnetic resonance sequencing, functional MRI's and diffusion tensor images.  Each of these techniques can show to a skeptical jury that a real injury to the brain has occurred.  With convincing imaging in hand the next stop on the road to proving your case is with the neuropsychologist.  The neuropsychologist can match the location of the injury to the exhibited behavior of the brain injured client. Finally, objective and corroborative evidence needs to be gathered.  It is often not enough for the victim to complain or exhibit behavior indicative of a brain injury and to have very convincing visual evidence showing the location of the brain injury. Jury members are a skeptical bunch and I think that when large sums of money are at stake they are especially skeptical of injury claims.  

The final part of the puzzle in proving a brain injury is to have what I call arm-length witnesses who will testify to the differences in the injured person before and after the crash.  Arm-length witnesses are those people that have nothing to gain in the outcome of the trial.  They are your boss, co-workers, your clergy and sometimes just the clerk at the grocery store. By having arm-length witnesses testify at trial you show the jury that the changes in behavior for the brain injured client are real.

Holding insurance companies fully responsible for the traumatic brain injuries caused by their insured is challenging but with new techniques and continuing sharpening of skills we try to represent our clients to the best of our abilities.

I have been a motorcycle rider for over 30 years and have also been a registered nurse.  My law practice focuses on representing injured and killed motorcycle riders and their families.  We can help you with medical bills, getting your bike fixed and getting you the money you deserve from the person that caused the crash. Utah Bike Law and its attorneys are licensed to practice law only in the State of Utah and maintain offices in Salt Lake City, Utah. No attorney client relationship is established by simply visiting this website.

The most common injures that result from a motorcycle crash in terms of frequency are:

Road rash: When an individual is thrown from a motorbike unprotected skin that meets the pavement will be injured. These skin and bone abrasions are referred to as road rash. In addition to being quite painful, they can also leave the accident victim scarred for life.Sometimes road rash requires skin grafting requiring weeks of admission to a hospital.

Disfigurement: Disfigurement, often in terms of facial scars and teeth damage occurs when motorcyclists are not wearing protective equipment to protect the face. Even with a helmet motorcycle crash victims often sustain damage to their teeth.  Trauma to the facial area can result in intense pain, and the driver with the disfigurement may have to go through painful and expensive plastic surgery or bear the marks of the accident for the remainder of his life.Oral surgery is also required to repair damaged and missing teeth.

Fractures: When motorcycle accidents occur, leg fractures are a very common type of injury. Since motorcyclists are often thrown from the bike during an accident, it’s possible for almost any other bone in the body to be fractured as well. Fractures can be accompanied by lacerations if bones break through the surface of the skin, and tendons, joints and nerves can also be damaged during a motorcycle accident. Wrist fractures are also very coomon becasue riders reach out to protect themselves - it is an automatic response. Sometimes fractures can take years to heal properly.

Spinal cord injuries: These types of injuries are very serious and occur when the vertebrae-protected cord that transmits nerve impulses from the brain to the rest of the body is damaged. The impact a spinal cord injury will have on the victim depends mainly on the location of the injury and whether the entire spinal cord was damaged. A person with a spinal cord injury may end up completely paralyzed from the neck down, or they may lose some function in their legs.

Brain damage and concussions: Motorcycle accidents often involve some level of head trauma. This can cause a concussion or it can cause traumatic brain injury that can dramatically reduce the victim’s overall quality of life and his ability to live independently. Serious brain injury can also cause death.

Utah Bike Law is a law firm and its lawyers represent motorcycle riders and their families across Utah including the counties and cities of Beaver, Box Elder, Cache, Carbon, Daggett, Davis, Duchesne, Emery, Garfield, Grand, Iron, Juab, Kane, Millard, Morgan, Piute, Rich, Salt Lake, San Juan, Sanpete, Sevier, Summit, Tooele, Uintah, Utah, Wasatch, Washington, Wayne, Weber, American Fork, Beaver, Bountiful, Brigham City, Cedar City, Delta, Draper, Duchesne, Fillmore, Heber, Kamas, Kanab, Kaysville, Layton, Lehi, Logan, Moab, Murray, Nephi, Ogden, Orem, Park City, Price, Provo, Richfield, Riverton, Roy, Salt Lake City, Sandy, South Jordan, St. George, Tooele, Vernal, West Jordan, and West Valley City.

Here is a checklist of what to do and not do when you are in a motorcycle crash in Utah.

Do:

1. Call your insurance agent immediately after an accident takes place,

2. Obtain a copy of the police report,

3. Take and keep detailed notes of all conversations with insurance company representatives, and get names, phone numbers, and job titles of people you speak with, including their supervisor's name,

4. Read and understand your policy. Know what kinds of accidents you are covered for and what you are not covered for,

5. Discover that you could have insurance coverage under another insurance policy as well. Many people have more than one policy that might cover a claim. In particular, look at homeowner policies and "umbrella" policies,

6. Take pictures of any damage to your vehicle, the accident scene, and your injuries,

7. Be honest and forthcoming with your insurer. Failing to be candid with your insurer might invalidate your policy or cause a denial of coverage,

8. Keep all receipts of meals, lodging, and purchases made in connection with time spent pursuing your claim or recovering from your injuries from the time of the covered event until final settlement with your insurance company,

9. If necessary, contact an experienced Colorado personal injury attorney. Your insurance company is primairly interested in their bottom line and will frequently contest your claim. Don't be a victim!

Do not:

1. Provide any recorded and/or written statements to your insurer until you are sure you understand your coverage. Remember you are not required to allow the insurance company to record your telephone conversation. If you have doubts, consult an attorney immediately,

2. Automatically accept the estimate or appraisal of your losses given to you by the insurer. Insurance companies will often try to get you to accept their estimator's or contractor's repair or replacement estimates, which might be lower than what you deserve. If you have doubts, contact an attorney immediately,

3. Sign any releases or waivers until you obtain legal advice. Don't accept a premature, inadequate settlement from your insurer. Consult an attorney before signing a release or waiver. In addition, remember to read the fine print on any payment from the insurance company,

4. Accept any check that says "final payment",

5. Disregard the time limits set by your insurance policy. Most policies require a signed proof of loss within a certain time limit. Be sure you comply with this requirement unless you obtain a written waiver from your insurance company. Many policies allow you only one year from the date of loss in which to bring a legal action if your claim has not been adjusted fairly. If months of gone by and your claim has not been settled yet to your satisfaction, consult an attorney immediately. A failure to do so could result in the loss of your right to sue,

6. Forget that your insurance company has a legal obligation to provide the coverage it promised to you. Be insistent about enforcing that obligation, and consult and attorney if necessary,

If you've been injured in a motorcycle accident you should be aggressive and vigilant in protecting your rights. Don't assume that the insurance companies are looking out for your interests, and furthermore, don't try to take on the insurance companies by yourself! Contact Utah Bike Law because we are experienced in motorcycle crash cases and will protect your rights and get you the fair compensation that you deserve!

Utah Bike Law is a law firm and its lawyers represent motorcycle riders and their families across Utah including the counties and cities of Beaver, Box Elder, Cache, Carbon, Daggett, Davis, Duchesne, Emery, Garfield, Grand, Iron, Juab, Kane, Millard, Morgan, Piute, Rich, Salt Lake, San Juan, Sanpete, Sevier, Summit, Tooele, Uintah, Utah, Wasatch, Washington, Wayne, Weber, American Fork, Beaver, Bountiful, Brigham City, Cedar City, Delta, Draper, Duchesne, Fillmore, Heber, Kamas, Kanab, Kaysville, Layton, Lehi, Logan, Moab, Murray, Nephi, Ogden, Orem, Park City, Price, Provo, Richfield, Riverton, Roy, Salt Lake City, Sandy, South Jordan, St. George, Tooele, Vernal, West Jordan, and West Valley City.

In this and the next several posts I am going to analyse a recent study by the United States Department of Transportation National Highway Traffic Safety Administration.  The recently published study is titled Motorcycle Helmet Use & Head & Facial Injuries.  The study included data from eighteen containing information on 104,472 motorcyclists involved in crashes during the years 2003, 2004, and 2005.

Fifty-seven percent of motorcyclists were helmeted at the time of the crashes and 43 percent were non-helmeted. For both groups, about 40 percent of motorcyclists were treated at hospitals or died following the crashes. However, 6.6 percent of unhelmeted motorcyclists suffered a moderate to severe head or facial injury compared to 5.1 percent of helmeted motorcyclists.

Fifteen percent of hospital-treated helmeted motorcyclists suffered traumatic brain injury (TBI) compared to 21 percent of hospital-treated unhelmeted motorcyclists. TBI severity varied by helmet use. Almost 9 percent of unhelmeted and 7 percent of helmeted hospital-treated motorcyclists received minor to moderate TBI. More than 7 percent of unhelmeted and 4.7 percent of hospital-treated helmeted motorcyclists sustained severe TBI.

Median charges for hospitalized motorcyclists who survived to discharge were 13 times higher for those incurring a TBI compared to those who did not sustain a TBI ($31,979 versus $2,461). Over 85 percent of hospital-treated motorcyclists without a TBI were discharged home, compared to 56 percent of motorcyclists with severe TBI. Motorcyclists admitted to the hospital with TBI were more likely to die, be discharged to rehab, or transferred to a long-term care facility. While 17 percent of all hospital-admitted motorcyclists had TBI, they account for 54 percent of all admitted riders who did not survive.

The above executive summary is what I see in my law practice.  Typically unhelmeted riders are more severely injured than those that wear helmets.  However, that does not mean that just because unhelmeted riders are more often more severely injured that laws should be passed forcing riders to wear helmets.

David Hepworth of South Jordan Utah was killed riding his motorcycle in Wasatch County when he reportedly made a u-turn in front of a car on US 40.  The car apparently crashed into Mr. Hepworth's motorcycle and Mr. Hepworth was catapulted off the bike and hit the windshield of the car. This is a tragic accident and appears to be the fault of the motorcycle driver although speed on the part of the car cannot be ruled out without further investigation.  As far as liability goes it might be determined that each were at fault.

I have blogged about many crashes on this web site and what often amazes me is the comments made to the news article about the crash.  There is often the insensitive person advancing their own agendas about motorcycle helmets.  There is often the crass and ignorant person trying to lay blame on one or the other drivers.  What we need to all remember is that this story, and all  stories about a crash, be it motorcycle or otherwise, involves real people who are effected by the crash.

The victim of the crash is often severely injured or killed and their family and friends have to live with the aftermath.  The person who may or may not be at fault for the crash is also a victim in a sense.  Unless the person who caused the crash was drunk I have sympathy for them too.  It is not a pleasant experience to make a mistake and kill or severely injure someone.  I do not think anyone, except for maybe the drunken driver, really means to cause the harm.. Whether they mean to do the harm or not the point is that they also suffer.  They have to live the rest of their lives knowing that they caused a crash that has severely hurt or killed someone.

Given the relatively affluent economy over the last decade (not including the last year), outrageously high gas prices and the move to be more environmentally friendly the number of motorcycles on the roads of the United States has increased dramatically. The statistics are staggering.

In Utah the number of motorcycles registered since 2004 are:

Along with the number of motorcycles being registered overall are what I think is the high number of relatively new motorcycle riders.  You can ride a bike for thirty years (like me) and register your bike or you can buy a new or used bike, never rode a motorcycle before, and register it.  Who is more likely to become a motorcycle statistic?

These charts tdo not directly address whether new riders account for the high number of motorcycle crashes but I bet that newer riders account for teh higher number of crashes.  What this says to me is experience counts.  At first glance the only way that a new rider can become an experienced rider is time and practice.  There is another way though - take a motorcycle safety class and get out in a parking lot and practice.  Not rocket science!

There will be about 1.5 million brain injuries this year in the United States.  Brain injuries are injuries that often have long term profound effects on the surviving victim and their family.  Oftentimes the victim looks fine but their capacity to interact and make decisions is dramatically impaired.  KSL quoted Ron Roskos, executive director of the Brain Injury Association of Utah saying those injuries can be long-lasting. "Just in the state of Utah there's over 44,000 individuals that are living with a long-term disability from brain injury," he said.  I have written on how motorcycle crashes can cause brain injury and its effects in this blog.

Not only are the effects often not apparent but they are often very costly.  Roskos says it's an average cost of $4 million to rehabilitate from a traumatic brain injury. And eventually, health insurance stops paying.  What happens when the insurance is exhausted is that these victims are forced onto the Medicare and Medicaid rolls and the taxpayer often picks up the excess costs of rehabilitation.

The use of motorcycle helmets has been discussed on this website extensively and in my opinion comes down to a personal choice but if you choose not to wear a helmet you should have enough insurance coverage to care for your rehabilitation and to care for your family if you have one that relies on you. Whether the requirement and proof of insured should be requirement to ride without a helmet remains controversial.  Various associations often call for stricter motorcycle helmet laws that require all motorcycle riders to wear helmets but these proposals are often challenged by other associations representing motorcycle riders.

According to the Brain Injury Association of Utah:

• Every 23 seconds, one person in the U.S. sustains a brain injury
• Over the past 12 years, mortality from brain injury has exceeded the cumulative number of American battle deaths inclusive of all wars since the founding of the Republic.
• Traumatic Brain Injury (TBI) is a silent yet serious epidemic currently leaving 5.3 million Americans with disabilities. This represents over- 2% of the US population; 40,000 victims in Utah alone!
• 50% of brain injuries are caused by vehicle crashes, 26% by falls.
• In September 2000 alone, 8600 children under the age of 15 suffered a brain injury from scooter accidents... almost 300 children per day!
• Every 7 minutes, someone dies of a brain injury
• One death every day and one brain injury every four minutes can be prevented by the use of helmets in recreational activities, including skiing and biking.
• 80 % of brain injury victims end up in a divorce
• 75% of persons with TBI who return to work will lose their job within 90 days if they do not have supports.
• The estimated lifetime cost for each survivor of a severe brain injury exceeds $4 million.
• According to a study conducted by The National Foundation for the Brain, the cost of brain injury in the United States was $48.3 billion in 1992. Hospitalization accounts for $31.7 billion, and fatal brain injuries cost the nation $16.6 billion each year. We estimate that this figure may be substantially higher today.

• Traumatic Brain Injury (TBI) is a silent yet serious epidemic currently leaving 5.3 million Americas with Disabilities. This represents over 2% of the US population; estimated 40,000 individuals in Utah alone suffer from a long-term disability from brain injury!
• Each year, approximately 567,000 people go to the hospital emergency departments with bicycle related injuries; about 350,000 of those are children under 15 years of age. Of those children, about 130,000 sustain brain injuries.
• 1 million children sustain brain injuries every year ranging from mild to severe, with approximately one-third of all pediatric injury cases are related to brain injury. This public health concern ranks as the leading cause of death and disability in children and adolescents in the United States.
• In Utah, during the school year 1997-98, there were 900 injuries that affected those from kindergarten through sixth grade. Of these injuries, 276 were possible concussions or loss of consciousness. This is disconcerting because these types of head injuries can cause long term problems.
• It is estimated that one million people are treated for TBI and released from hospital emergency rooms every year.
• Each year, 80,000 Americans experience the onset of long-term disability following TBI.
• More than 50,000 people die every year as a result of TBI.
• Vehicle crashes are the leading cause of brain injury. They account for 50% of all TBIs.
• Falls are the second leading cause, and the leading cause of brain injury in the elderly.
• The risk of TBI is highest among adolescents, young adults and those older than 75.
• After one brain injury, the risk for a second injury is three times greater; after the second injury, the risk for a third injury is eight times greater.

I had another client call today asking the same question I have heard dozens of times over the years, "I have a mild TBI case. How do I show that my client was really injured?" This is a very popular question that doesn't have a good straightforward answer, so I thought it would be a good topic to discuss here.

In most cases, no evidence of injury will show up on CT or MRI scans unless this injury results in hemorrhage from contusions or vascular injury. Usually, the injury is microscopic occurring to individual cells or clusters of cells. This is where axonal shearing comes into the conversation. The movement of the brain within the skull can cause disruption of the various nerve cells (neurons) that make up the brain tissue. These injuries to the neurons, and particularly to the long vulnerable axon portions of the neurons, are called axonal shearing or shear injuries.

Although traditional radiological techniques are not of much help in axonal shearing cases, PET scans can sometime be of assistance. A PET (positron emission tomography) scan shows the absorption rate of glucose in the tissues and can be helpful to show a functional deficit even when no structural defect can be seen. Of course, neuropsychological testing is also helpful to point out specific types of impaired function that did not exist prior to the injury. A skilled neuropsychologist can often isolate specific regions of brain injury based on lists of behavioral and cognitive dysfunction.

All in all, when pursuing a mild TBI case, you should be prepared to go beyond your efforts to locate a single source of evidence for your client's injury and be prepared to educate and enlighten as to the nature of the injury itself. These cases can be a challenge but they also can be very rewarding.

This article was reposted by permission of Benjamin Broome. M.A.

 

Chances are that when you are in a motorcycle crash you will be seriously injured.  With or without your knowledge the Emergency Medical System will probably be activated with police and ambulance crews arriving at the scene of the motorcycle or scooter crash.  The first priority for the police and the ambulance crew is the well-being of the injured. 

If you are conscious you may think about refusing the ambulance because you may not be able to afford the cost.  The average cost of an ambulance ride in Salt Lake City is about $1000.  According to an article in the Deseret News thousands of injured Utahns refuse ambulance rides after being injured.  If you are not at fault for the crash this expense will eventually be paid for by the offender's insurance - presuming that the offender has insurance.  Do not refuse the ambulance ride.  Like the ambulance crew I am also interested in your well-being - your financial well-being.  The ambulance personnel, your doctors and hospital staff will help you recover physically but I will help you recover financially.

To properly and thoroughly prepare your case for either settlement or trial we need to have objective evidence of your injury.  Objective evidence is evidence other than your word or observations about how much you have suffered.  We need the ambulance personnel to note where your injuries are, what had to be done to you at the scene, to chart the medications they administered, the intravenous fluids you needed, your behaviour or the need for spine precautions if your spine is suspected of being injured.  The list of treatment rendered by ambulance personnel can be very long and is objective evidence of your injury.  The ambulance records start the objective chain of evidence I need to properly create a detailed settlement brochure that will help the insurance company to offer you fair and full settlement value for your injuries.  If the insurance company does not want to settle your motorcycle crash claim we may have to go to trial.  The same evidence created by the ambulance crew will be used at trial to objectively show that you were severely injured as a result of the motorcycle crash.

Of course all of the other objective evidence will also be used including your hospital records and your doctor notes as well as physical therapy and other practitioners.  All of these are sources of objective evidence that will go to proving your harms and losses.  Knowing how to prepare and fully present all of your injuries and making sure you are financially compensated is my job. For your physical and financial well-being do not hesitate to accept a ride to the hospital by ambulance.

A closed head injury is a brain injury.  They are often called closed head injuries because there are no obvious open wounds to the skull.  But be assured that the brain can be injured even if there are no obvious wounds.  The injury to the brain occurs most commonly because of the sharp acceleration - deceleration forces that impact the head.  Most commonly these forces are present in motorcycle crashes whether you are wearing a helmet or not.  You can think of the brain as a mass of jelly inside a hard container.  If you move the container quickly in one direction and then violently move the container in the opposite direction in is clear that the jelly hits up against the inside of the container first on acceleration and then on deceleration as the container is moved in the opposite direction.  This is called coup - countercoup.  The brain is often injured as a result.

Brain injury can occur whether or not there is a loss of consciousness.   Symptoms can be quite unremarkable and may not even be very noticeable to the injured or others observing him or her.  Immediately after a motorcycle crash there may or may not be a period of impaired consciousness followed by confusion, lack of memory, disorientation and a sense of searching for words.  Your balance may also be somewhat effected.

The first 24 hours after an injury are critical as the brain responds to the injury.  Symptoms to be on the watch for include:

• lethargy - general feeling of tiredness or lack of energy
• confusion - fleeting thoughts from one to another
• irritability - easily gets angry or short-tempered
• severe headache - that tend to be out of proportion to the injury
• changes in speech, vision and / or movement - indicated injury to the cerebellum
• vomiting - can come in spurts or be prolonged
• seizure - can and do happen
• coma - an unarousable state
• long and short term memory loss - either since or before the crash
• slowed thinking - or a searching for words
• distorted perception - reaching for objects and missing
• problems concentrating - often asking "what was I doing"
• inability to pay proper attention - flight of memory from one subject to another
• problems communicating including oral or written - may compensate by using simple words
• poor executive function - planning for example
• mood or personality changes  - often inappropriate behavior like laughing out loud

If any of these symptoms are present make sure the doctor knows about them and then make sure the doctor takes you seriously and has teh appropriate tests performed to demonstrate injury such as Ct's, MRI's and PET scans if necessary.

Some resources are: