At the time of the car accident, claimant was 53 years old, with a medical history that included a heart attack, and treatment of high blood pressure. As she was driving at or near highway speed with two of her grandchildren in the back seat, a chunk of concrete measuring approximately 9″ x 12″ x 6″ hit the front hood of her car, penetrated the windshield, hit the steering wheel, and then struck claimant on the left side of her forehead, rendering her unconscious. Claimant’s car drifted off the right side of the roadway, eventually striking a tree beyond the right shoulder of the roadway and coming to rest. At the time of the accident, claimant was wearing a lap belt with a shoulder harness seatbelt.
Claimant regained consciousness while she was still in her car. Her first memory after the accident is of regaining consciousness while lying halfway on her back, seeing a large hole in the windshield, reaching for a tissue because there was blood in her eye, and realizing that she was being attended to by another person. Claimant inquired many times about the safety of her grandchildren before again losing consciousness. Thereafter, claimant was brought in the emergency room at Albany Medical Center (AMC).
A source said that, claimant was admitted to AMC, and was treated by neurosurgeon Dr. John Waldman. Initial CT scans of claimant’s skull taken the day of the accident indicated that she had suffered numerous skull fractures in the area of her left eye socket involving the forehead bone behind her left eyebrow, the bones of the outer upper part of the eye socket, the roof of the eye socket, and the upper part of the eye socket near the temple, as well as fractures of the bones along the left side of her sinuses behind her nose. In addition, the initial CT scans indicated a small epidural hematoma (i.e. a blood clot between her skull and the dura, the fibrous material that covers and protects the brain), a traumatic subarachnoid hemorrhage (blood in the fluid between the brain and the dura), and bloody fluid in the ethmoid sinus. The CT scans also revealed pneumocephalus (air inside the skull cavity), indicating that the dura may have been torn at the time of the head injury. The CT scans also indicated that claimant had sustained trauma in the area of the skull where the olfactory nerve (the nerve that senses odors) is located. In addition, claimant had a deep laceration of approximately two inches on her forehead above her left eyebrow.
Surgical intervention to reduce or repair the fractures was unnecessary, and the fractures in her skull were left to heal on their own. Cranial surgery to address the blood and air within claimant’s skull was determined to be unwarranted, as the blood in claimant’s skull was not life-threatening, and CT scans taken the day after her accident indicated that the intracranial blood and air were resolving. Dr. Waldman advised claimant to refrain from blowing her nose because of the cranial fractures and the head injuries to her skull. While claimant’s facial laceration was sutured at AMC on the date of the accident, no reconstructive work was performed during her hospitalization.
A doctor said that, during claimant’s first night at AMC, claimant drifted in and out of consciousness and experienced pain in her entire head, with pain in her eye sockets that felt like somebody was sucking her eyes out. Swelling around claimant’s eyes caused her to have difficultly seeing during her first night at AMC, especially out of her left eye. Following her discharge from AMC, claimant recuperate at home for at least two weeks before resuming work on a part-time basis as a bookkeeper and cleaner for her husband’s contracting business. In addition to the physical pain, claimant testified that she feared death in the weeks following her accident, as her father had died suddenly from a cerebral hemorrhage a week after sustaining a head injury.
A Lawyer said that, after the accident, claimant suffered from neurological problems that she did not have before the accident. According to claimant, in the six or seven weeks following her accident, her thinking was “way off.” Specifically, claimant had problems with comprehension and expressing herself, and had difficulty carrying on conversations and remembering the names of close family members. Claimant suffered daily headaches for approximately two months after her accident that she treated with ibuprofen. During the first six to eight weeks following the accident, claimant had a difficult time controlling her emotions and would cry for no reason. Claimant also suffered from problems with her balance in the six months following the accident, and she experienced three episodes during which she blacked out momentarily.
Claimant’s initial problems started to subside a few months after the accident, but she continues to experience noticeable difficulties. At trial, claimant presented as lucid and composed, and she expressed herself in a relatively focused manner and without apparent difficulty. Her neurological problems provide her with a constant reminder of the car accident. Emotionally, claimant feels frustrated and “stressed out” because she cannot do many of the things of which she was capable before the accident, and she feels a sense of insecurity and unhappiness because she does not feel as capable as before the accident. Claimant’s husband confirms that claimant is more forgetful and moody, has problems understanding things, and is not as confident as before the accident.
Dr. Waldman from Nassau, who treated claimant at AMC immediately after the accident and on four occasions, testified that claimant suffered two head traumas in the accident. Being struck by the concrete chunk caused a direct impact head injury that caused her skull to impact the frontal lobes of her brain, an area of the brain that is responsible for executive function and that is involved in memory. When her car struck the tree, she sustained a second trauma which was described as an acceleration/deceleration injury, or “coup/contrecoup injury which could cause the brain to move back and forth within the skull, possibly smacking against the bone. Dr. Waldman stated that the impact of the concrete chunk against claimant’s head, along with the shaking of her brain within her skull after her vehicle hit the tree likely resulted in a “diffuse axonal injury” , which occurs when axons the cable-like connections between nerve cells in the brain are torn or sheared as the result of trauma. The damage to the axons renders certain parts of the brain unable to communicate with other parts of the brain, and memory and cognitive problems can occur. Damage to these axons is permanent, as brain cells cannot regenerate when injured. A diffuse axonal injury is at a microscopic level that cannot be objectively diagnosed by radiological studies. Based upon the nature of claimant’s accident, the injuries to her head, and her continued complaints of memory and cognitive problems in the years following the accident, Dr. Waldman has concluded that claimant’s post-accident memory and cognitive difficulties are caused by a diffuse axonal injury that is structural and permanent in nature.
Dr. Kevin D. Barron, a neurologist who is defendant’s independent medical examiner, examined claimant. As part of his examination, Dr. Barron from Suffolk took claimant’s medical history and performed a general physical examination and neurological examination, both of which failed to indicate any brain abnormalities. Dr. Barron administered a Mini Mental State Examination, on which claimant scored a perfect score of 30 out of 30 a score below 27 would be considered abnormal. In Dr. Barron’s opinion, claimant did not suffer any permanent impairment to her memory or general brain function as a result of the accident. Rather, Dr. Barron believes that claimant had a diffuse axonal dysfunction from which she has recovered. Dr. Barron further testified that it is typical for persons in their 50s to have some memory impairment due to age, and further testified that the side effects of a blood pressure medication that claimant has been taking since 1995 include faintness, memory impairment and short-term memory loss.
Claimant seeks damages for past and future pain and suffering due to defendant’s negligence.
The issue in this case is whether Defendant State is liable for the brain injuries suffered by the claimant.
The Court held that with regard to the neurological injuries suffered by the claimant, there is no objective radiological evidence, such as a CT scan or MRI, that conclusively demonstrates that claimant has suffered a permanent brain injury, and the Court recognizes that Dr. Waldman’s diagnosis rests in great measure upon claimant’s subjective complaints of memory and cognitive problems. However, the Court evaluated the demeanor of claimant and found her to be a highly credible witness with respect to her memory and cognitive impairments, and the Court does not believe that claimant is malingering or exaggerating her symptoms. Claimant’s testimony was substantiated by that of her husband, and, to some degree, by Dr. Lifrak’s neuropsychological evaluation report. The Court credits claimant’s testimony that she suffered and continues to suffer memory and cognitive difficulties since the date of the accident, and further credits Dr. Waldman’s testimony that these problems are the result of a permanent diffuse axonal injury caused by the accident.
The Court declines to accord much, if any, weight to Dr. Barron’s opinion that claimant suffered no permanent memory and brain function impairment. Beyond the fact that Dr. Barron’s current professional activities consist mainly of serving as an expert witness, he examined claimant only once, whereas Dr. Waldman’s diagnosis derives from his observation and evaluation of claimant on multiple occasions over a period of approximately 18 months. Similarly, Dr. Lifrak’s report was rendered upon numerous and varied assessments performed on several occasions over a period of time. Moreover, in conjunction with its assessment of Dr. Barron’s demeanor, the Court finds his brusque and unexplained dismissal of the work of all neuropsychologists undermines the weight of his testimony in this case. Finally, the court is unpersuaded by defendant’s argument that claimant’s memory problems may be caused by age-associated memory impairment, as there is no evidentiary support for that argument other than Dr. Barron’s generalized testimony about the experiences of people in claimant’s age group. Similarly, defendant’s contention that claimant’s memory may be affected by the daily blood pressure medication she takes is without evidentiary support, and is, in any event, undermined by the evidence that claimant took the medicine for approximately eight years preceding her accident, but did not experience memory difficulties until immediately after sustaining head injuries in the accident.
Thus, the Court finds that as a direct and proximate result of the accident, claimant suffered a brain injury that has caused permanent memory and cognitive deficits. However, based upon the Court’s observations of claimant at trial and claimant’s neuropsychological evaluation, the Court finds that the effect of this head injury upon claimant is mild. This is, of course, not to trivialize the seriousness of the injury as perceived and experienced by claimant in her daily life, but is based upon the absence of evidence of objective or apparent substantial functional impairments. The Court further finds that the functional difficulties claimant suffers are compounded by the emotional effect upon her of these mild impairments. In sum, based upon the weight of the credible evidence, the Court finds that claimant suffered injuries as a result of the accident that have caused mild memory and cognitive impairments that are permanent, and which have had, and will continue to have, a moderate impact on claimant’s quality of life.
As regards the olfactory injury suffered by the claimant, the Court finds claimant to be a credible witness with respect to her complaints about the loss and distortion of her sense of smell. The Court also finds persuasive the testimony of both Dr. Kaufman and Dr. Parnes, and finds that the accident caused a permanent injury to claimant’s olfactory nerve, and that the injury is the cause of the loss and alteration of her sense of smell. Further, the Court finds that the effect of this injury is pervasive, and has had and will continue to have a profound impact on claimant’s quality of life.
With regard to claimant’s forehead injury, the Court finds that claimant has suffered permanent injury to her forehead and left brow as a direct result of the accident. The injuries affect her appearance as well as the functionality of her left eye.
In view of the foregoing, it is clear to the Court that claimant has suffered and will continue to endure substantial pain and suffering as a direct and proximate result of the accident. Accordingly, the Court awards damages to claimant Linda Sanchez as follows: Past Pain and Suffering $100,000, Future Pain and Suffering $375,000.
If you are involved in a car accident and suffered brain injuries there from, you need the help and advise of a New York Car Accident Attorney. At Stephen Bilkis and Associates, New York Brain Injury Attorneys and New York Personal Injury Attorneys can handle your case to guide you through situations where brain injury resulted because of the State’s negligence.