Children and Traumatic Brain Injury

Unfortunately, brain injuries are very common with children who are victims in accidents. According to the Centers for Disease Control, nearly one million children suffer a traumatic brain injury (TBI) each year. More than 100,000 of these children require hospitalization. These figures probably underestimate the incident rate of TBI among children because many children never go to the hospital following the trauma and many TBI cases go undiagnosed due to a variety of factors. Also, many parents fail to initially recognize or appreciate some of the TBI symptoms in their children and this can result in a long delay from the time of injury to a firm diagnosis. Sometimes that diagnosis never comes if the child receives inadequate medical care.

There are certain aspects of brain injury that are unique to children and may have important legal ramifications when it comes to asserting and proving a claim for damages. Because I see a very high prevalence of brain injury among the many children my office represents, I have decided to devote an entire chapter to this type of injury claim. There are plenty of resources out there that will help parents understand the nature and treatment of TBI involving children. This chapter is not intended to provide an exhaustive resource on the subject of TBI when it comes to the diagnosis, treatment, and rehabilitation of TBI in children. And I encourage parents to seek out those resources, which include the National Brain Injury Association (www.biausa.org) and the Brain Injury Association of Washington (www.biawa.org).

What is TBI?

It is important to understand how TBI is defined. Recently the Washington State Legislature has adopted a law to establish that "traumatic brain injury" is defined as "...injury to the brain caused by physical trauma resulting from, but not limited to, incidents involving motor vehicles, sporting events, falls, and physical assaults. Documentation of traumatic brain injury shall be based on adequate medical history, neurological examination, mental status testing, or neuropsychological evaluation. A traumatic brain injury shall be of sufficient severity to result in impairments in one or more of the following areas: cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; or information processing. The term does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma. RCW 74.31.010(4)."

This definition also mirrors the one adopted by the Individuals with Disabilities Education Act (IDEA) (formerly the Education of the Handicapped Act) and codified at 34 C.F.R. § 300.7(b)(12).

The Washington Legislature has also recognized that TBI "can cause a wide range of functional changes affecting thinking, sensation, language, or emotions," and that the condition "can also cause epilepsy and increase the risk for conditions such as Alzheimer's disease, Parkinson's disease, and other brain disorders that become more prevalent with age." The Legislature has further declared that "the impact of a traumatic brain injury on the individual and family can be devastating."

What is encouraging is that the state of Washington has formally recognized that a traumatic brain injury is a serious problem that can have long-lasting consequences on the individual victim and that person's entire family. We have only recently begun to establish programs to help TBI survivors deal with this potentially devastating condition.