State Bar of Michigan
Committee on Justice Initiatives and Equal Access Initiative Disabilities Project
Volume 4, Issue 3, July 2008
Disabilities Project Newsletter
Understanding Traumatic Brain Injury
by Jennifer Bales, State Bar of Michigan Intern and MSU College of Law Student
Do you have a relative who was the victim of a car crash? Or know a soldier returning from the war with an injury to the head? Possibly a child who sustained a concussion in a soccer accident? Most of us know someone who has suffered these or similar types of trauma, but these everyday happenings can be more severe than we might expect. Transportation accidents, falls, and sports injuries are some of the leading causes of traumatic brain injury (TBI) that affect more than 1.5 million Americans each year. Because a TBI does not always manifest itself in a visible manner, you might know someone with a TBI and be completely unaware of the obstacles that person faces every day.
Traumatic brain injury occurs when there is a jolt to the head or a penetrating head injury resulting in the interruption of regular brain function. A TBI can manifest itself in a variety of ways, affecting cognitive, physical, and emotional behaviors of its victims. Symptoms of TBI may develop immediately after an accident occurs or, in some cases, an individual won’t notice significant changes in behavior, mental capacity, or physical limitations due to a TBI for months or years. Though all individuals with a TBI will have their own set of affects and limitations, Tom Judd, a care coordinator at Origami Brain Rehabilitation Center, says some common complications are neurofatigue (the mind becoming fatigued from activities that before the injury were routine), adynamia (low mental energy or lack of will) and disinhibition (difficulty properly directing or controlling energy and emotions), problems concentrating and focusing, memory loss, and problems with executive functioning (organizing, planning, and divergent and congruent thinking).
Changes faced by persons with TBI not only affect the injured person, but also his or her family members, friends, and coworkers. Injuries suffered by the brain can change a person’s personality entirely. Often, family members or friends notice that the loved one with TBI is no longer the same person. A person with TBI might have problems focusing or staying focused at work, lacking the capacity to improve and receive promotions; or everyday tasks might be nearly impossible to achieve, making the patient unable to return to work at all. TBI is a complex and frustrating injury. One of the biggest challenges a person with a traumatic brain injury faces is “their loss of freedom and loss of options,” says Judd. He notes that seemingly simple, day-to-day tasks and activities might pose new challenges. Someone who was once an energetic, organized, successful person might become sluggish, confused, and angry all the time.
The legal world is a fast-paced, demanding, deadline-oriented world. Unfortunately, this is exactly the type of environment that can be overwhelming, frustrating, and incredibly discouraging to a person with TBI. This, in turn, may create challenges for a lawyer who is trying to accommodate a client with TBI in addition to meeting court deadlines and staying on task with other clients.
The key to advocating for a client with a traumatic brain injury is seeking education on the subject and knowing the potential obstacles you may encounter while representing such a client. However, Judd also warns that since a traumatic brain injury affects individuals in different ways, it is important not to group all people with a traumatic brain injury together. Instead, it is important to focus on your specific client and their individual deficits and challenges. It may also be necessary and helpful to learn the support system of the individual you are working with and utilize that as a resource in your endeavors. And, as with any client, patience and compassion should be conveyed at all times, otherwise you may be a stumbling block for yourself.
Also, recognize that your client may be able to advocate for himself. Because one TBI can be vastly different from another, don’t assume that your client will be incapable of communicating and working with you on a one-on-one basis. However, be open to the possibility that others, such as persons from the client’s family or support system, may need to be around when you meet with the client to assist in the progression of the meeting. Rather than seeing your client as someone who is “disabled,” view him or her as an individual with specific legal needs. Adjust your approach if you encounter a roadblock. Building this trust and understanding from the beginning will be integral throughout the entire legal process.
When facing obstacles within the court system, be aware that there are legal standards set in place to accommodate individuals with disabilities. The Americans with Disabilities Act (ADA) defines a “disabled” person as one who meets any of the following tests:
“(1) He or she has a physical or mental impairment that substantially limits one or more of his/her major life activities; (2) He or she has a record of such an impairment; or (3) He or she is regarded as having such an impairment.” Using these standards, a person with a TBI is included in the protected class under the ADA. One specific protection afforded is the ability to request court accommodations. Under the ADA, you may request accommodations so long as it isn’t unreasonable and doesn’t impose undue hardship on the court. The Michigan State Court Administrator’s office supplies a form to request accommodations for persons with disabilities, located here: http://courts.michigan.gov/scao/resources/standards/aj_accom.pdf
It is important to find ways to keep an open dialogue with the court about the issues you face by advocating for a client with a TBI and the court’s responsibilities under the law. As long as you remain up to date on your client’s rights and the court’s responsibilities, the legal process should be manageable for both you and your client.
Finally, rather than viewing advocacy for a TBI client as a hardship, keep an open mind and a positive attitude. Focus on your client’s successes and strengths and use those to your advantage rather than focusing on what is discouraging. Find alternate avenues to do things that might accommodate your client’s needs more successfully. If you understand that it may be different working with a TBI client as opposed to someone without a TBI, but you are prepared and ready to adapt, then it can be a fulfilling and rewarding experience.
More Information on TBI:
Special thanks to:
- Tom Judd, care coordinator, Origami Brain Injury Rehabilitation Center, Mason
- Mark D. McWilliams, Michigan Protection and Advocacy Services, Inc., Lansing
- Michelle Mull, Michigan Protection and Advocacy Services, Inc., Lansing
Previous editions of this newsletter are online.
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