From Impact to Settlement: A TBI Case Journey with Shane Smith Law

0:00:07 - Shane Smith
Hey, I'm Shane from Shane Smith Law. I'm here today on Mind Matters: Navigating Head Injuries and Concussions, and I'm here with John, one of the attorneys at Shane Smith Law with the Concussion and Brain Injury Group, and we're going to be talking about a particular case he had where, basically, the client had a TBI and the impact it had on the case overall. John, how did this accident occur?

0:00:30 - John Mobley
So, Shane, this accident involving our client was a very serious accident where the defendant was not paying attention and ended up rear-ending our client at a high rate of speed, about 40 miles per hour. Created some very serious property damage, mainly actually to the defendant's car, which was shredded and totaled, and, believe it or not, our client's car sustained very minimal damage, so the car kind of did its job to protect them. The bumper absorbed a lot of the energy, but what we'll talk about too is that just because there was not a lot of property damage, it doesn't mean that a lot of forces weren't then exerted on our client and caused a lot of injuries.

0:01:09 - Shane Smith
Yeah, because I know sometimes some of the force analysis. People too will say you know, when a bumper doesn't collapse, when the car doesn't collapse and it remains stiff, all that force ends up going in- it's got to go somewhere. It either goes in whipping the car forward or it goes into the person or whatever, whereas the ones that collapse actually absorb more damage. And it sounds like a lot of this force went into this client.

0:01:35 - John Mobley
Absolutely, and you know the injuries were immediate and apparent, both injuries to some orthopedic injuries and as well as brain injury.

0:01:44 - Shane Smith
What were the brain injuries that were immediately there? Was he knocked out? Was he dizzy? How was it at the scene?

0:01:50 - John Mobley
Yeah, so at the scene, and some of the telltale initial brain injury symptoms we saw here, which was the dizziness, the nausea, the brief loss of consciousness all of these things are the first signs of a brain injury or some sort of energy transfer to the brain. And that's what we saw here with this client.

0:02:12 - Shane Smith
And when we say brief loss of consciousness, what does that mean? Because you know, when I talk to folks, some people think it's, you know, just a second. Some people think it's like 10 minutes. How long, do we know how long this client was out, or did they just think it was just a minute or a little bit?

0:02:26 - John Mobley
So this is always a very hard thing to go back and check because a lot of times the person who sustains the brain injury is not the best historian. So they don't even know? Exactly. It could feel like a minute to some people is actually 10 seconds, or they are out for an hour, and that's the hard part is that you don't always know the exact timeline. So when I'm talking to my clients who we suspect have a brain injury, I'm usually phrasing it more along the lines of you know, is there a portion of the accident you don't remember? And a lot of times we can piece it together that way where you know they'll hear screeching breaks and the next thing they'll remember is when EMS or a witness or bystander is knocking on their window waking them up.

0:03:07 - Shane Smith
So that is clearly something happened.

0:03:09 - John Mobley
Yeah, the light switch got turned off at that point, unfortunately, when you have these long blackout periods. And sometimes there's, when you injure your brain too, there's a period where you're kind of in like almost like a drunken, disoriented stupor is the best way that my clients explain it where you're half with it, but you're definitely disoriented.

0:03:31 - Shane Smith
So you're not normal.

0:03:32 - John Mobley
Not normal, not making sense. And when we see our clients that have friends and family in the car that didn't have a head injury, they usually explain, like you know, mom or dad, something wasn't right.

0:03:44 - Shane Smith
So any, I mean, is it fair to say anytime somebody is like hey, I'm missing part of the accident or, you know, right after the accident I felt like I was drunk or everything was blurry, is it reasonable to say then they most likely hit their head or suffered some kind of impact to the brain?

0:04:01 - John Mobley
I think that is the safest place to start as the default, because what else would explain that? You know you don't typically walk around fumbling your words. Being disoriented, having nausea, blurry vision, those are clear head injury symptoms, and with what we know from the statistics of there being almost 40% of all motor vehicle accidents result in some degree of head injury, I think it's safe to start at that point and then piece together the facts. If we have any EMS, sometimes the EMS notes will notate if they think the head injury occurred or they're showing brain injury symptoms. If we're lucky enough to have bystander witnesses or family members in the car, that really helps us tell the full story.

0:04:41 - Shane Smith
Now is EMS- how reliable is it if they don't put something about a head injury in their notes?

0:04:46 - John Mobley
It doesn't mean anything. And the thing is it can vary based off of how busy the EMS personnel making the notes is that day or how thorough they are on the notes. So much stuff gets left off. We only get lucky when they actually put it on there and do a very thorough brain injury investigation.

0:05:06 - Shane Smith
So that's not taking anything away from the EMS. They just may have five other calls or a gunshot. Then they just have something else where they're like, oh, you're okay, and okay meaning you're not gonna die, put you in and go because we've got another thing going on, right?

0:05:20 - John Mobley
You nailed it. So like if two cars are flipped over and on fire, that's mass mayhem and they're probably not focused on: "Well, let me make sure I get every single note down to the T" and if they were slurring their words correctly, they're probably more worried about getting the client to the hospital so they're alive.

0:05:36 - Shane Smith
That's their primary job is to get you to the hospital so they can fix you right, stabilize you and get you there and, like we've discussed, a concussion is not likely to kill you at the scene or once you're awake you're unlikely to expire in the next hour probably? Correct. Okay. So if it's not there, that's not anything. The most reliable thing is probably the person, if they say they're missing time? That's correct. Yeah, absolutely. Alright, this client was you said, I mean you said it was readily apparent. What happened after that? In the context of the head injury stuff.

0:06:08 - John Mobley
Certainly so, you know, with it being such traumatic brain injury symptoms already showing up immediately, the client did the right thing, which was get to get urgent, immediate care. And you know, the unfortunate worst was then confirmed, which is that the first medical doctors who started to see the client confirmed that, yes, there was definitely a concussion and there was post concussion symptoms and as well as headaches.

0:06:36 - Shane Smith
So, in your opinion, anytime somebody's missing time or thinks they got knocked out, they definitely need to go to the ER? 100%. Even if I feel okay, but if I don't remember the accident, that, there's a problem?

0:06:51 - John Mobley
100%. If you think a loss of consciousness or you don't remember if you did or didn't hit your head, it's always out of abundance of caution, get to a medical specialist so they can just be sure. Because, as we've spoken about on prior podcasts, you know the unfortunate consequence if you have something serious going on or a brain bleed, you can potentially die, and these are things that do happen. You know, if you have bleeding on the brain that goes untreated, you may fall asleep and never wake up. You may experience severe, severe complications that would aggravate and worsen your long-term kind of outlook.

0:07:26 - Shane Smith
And is that kind of you know that old, I'm not gonna say old, the old advice people you see on TV shows: somebody's got a concussion, it's, you gotta wake them up every hour, every two hours? Is that cause we're worried about that brain bleed? So if I hit it, even though I might feel totally fine if I go home and I'm tired and sleepy, that could be it. I mean, it's probably not, but it could be.

0:07:46 - John Mobley
Yeah, that old advice is actually still kind of good advice, honestly, because- and the main thing that that advice was kind of getting at is that you don't just wanna go home and try and sleep it off where no one's monitoring you or watching you. Then you could find yourself in trouble and becoming incapacitated and then it gets worse and worse. So, yes, that advice still holds up, but really the main underlying goal of it is get to the doctor and let them figure it out. Let them tell you you are okay.

0:08:12 - Shane Smith
So, John, this client had visible symptoms at the scene and they took him to the emergency room. What happened there?

0:08:21 - John Mobley
So typically at the emergency room they'll go through an entire process of determining the severity of the injury and this can be accomplished through interviewing the patient, getting an idea of what exactly happened in the accident. So a lot of times we'll see in medical records they'll notate the severity of the accident based off of whatever the patient's seeing them tells them.

0:08:42 - Shane Smith
That seems a little unreliable if they've suffered a hand injury. It is. Okay.

0:08:47 - John Mobley
It is. So you can see how a lot of stuff can kind of get lost in the madness here when you're trying to explain what happened but you're also very disoriented. So that's why these medical professionals are trained to trust but verify as to what happened. If they suspect an accident was worse, then they'll order the appropriate scans, typically a CT scan. However, if they aren't kind of conveyed how serious the accident was, we unfortunately see a lot of our brain injury clients get discharged from the hospital without the proper stuff occurring, and that means the proper imaging or being held for long enough. So that's why the follow-up with the neurologist is always crucial to your treatment in a case.

0:09:31 - Shane Smith
If there is one of these. So I was gonna say, are they great at screening for concussions and stuff at the emergency room? Or does that need some work, or does it just vary greatly depending on where you're at?

0:09:40 - John Mobley
It varies greatly depending on where you're at, how stressed the hospital system is. We all know post-pandemic the kind of stresses that our healthcare system goes through in trying to provide the best care. And then the triage patients accordingly. Ideally they would do an MRI, but we find out more and more that an MRI takes too long and they're very expensive.

So typically a CT scan is ordered, even though an MRI has little to no radiation like a CT scan does.

Constantly they order the CT scan when in fact the MRI would tell us more about the brain injury.

That's why follow-up care and doing the neurologist follow-up is so, so important so you can get the appropriate clinical correlation of your brain injury, and get the proper, the actual, better diagnostic image which is the MRI. Way stronger than a CT scan. What's clinical correlation? That means that if they were to do an MRI and saw that maybe there was a bruise or injury to the brain, that alone probably isn't gonna be able to confirm the brain injury. But if the neurologist then does evaluate the client clinically and says oh, here's all your symptoms, so you've hurt this part of your brain that controls vision and memory, and I'm seeing here, when I'm examining you that you're complaining that you don't know directions to your house anymore when you're driving and your vision's blurry. Well, we've just correlated with the imaging and showing us that, hey, these symptoms of that brain injury area are showing up when I'm talking to you, and sometimes they'll do things like brain check tests where they'll examine your cognitive abilities. These things are how they correlate.

0:11:24 - Shane Smith
So they're matching the tests with what you're telling them basically, or what they're seeing.

0:11:32 - John Mobley
Exactly, and that's exactly what happened here. When this client got in with an neurologist, thankfully quickly, they immediately suspected brain injury based off of the client's symptoms, and then they ordered something called a VNG, a brain check and a balance test.

0:11:48 - Shane Smith
Okay, let's go through those. What are they?

0:11:49 - John Mobley
So there's specific tests that can analyze- one, the VNG will analyze vestibular function, and the vestibular portion and region of your brain control things like, you know, it would have, if it was injured it would impact things like dizziness, nausea, potentially some of your vision, a little bit of your hearing, memory, and it's part of a greater brain injury kind of.

0:12:10 - Shane Smith
So the dizziness, nausea, those are huge signs you got an issue with that? Huge signs. Okay.

0:12:20 - John Mobley
And this test that the client had was positive. So the finding there was that they did in fact suffer brain injury. The balance issue when you, sometimes, when you injure your brain, believe it or not, your brain controls balance and how well you can steady yourself. This client was, unfortunately and very sadly, just barely able to walk down a hallway in his house. Felt like he was kind of on like a cruise ship feeling, and that's a terrifying feeling because as you get older and you're having that cruise ship balance issue feeling, you're more prone to falls.

0:12:49 - Shane Smith
Okay, yeah, which are huge for older people in particular, but good for everybody.

0:12:54 - John Mobley
Absolutely everybody. You fall and break your hip. That's a life changing incident. You're constantly falling, you're constantly injuring yourself, you know, not even to mention the fact that it makes you kind of feel queasy and sick, and these are symptoms that this client experienced.

0:13:08 - Shane Smith
And I'm guessing that varies as well, right, depending on the severity of the injury. So it could be just I'm a little dizzy to, like this client, I can barely walk down the hall.

0:13:16 - John Mobley
Absolutely. There's so many different shades of the severity of the injury and tears to the point where some people they're just completely disabled. They couldn't even look at a computer screen to do work because their vision and balance is just so discombobulated that they're not gonna be able to function. Luckily our client was in between there, so you know, still very functional, but quality of life just went so so far down for this client and that equates to a lot of pain and suffering and just like a very hard life.

0:13:54 - Shane Smith
Because life changed for this client and that's one of the reasons why we want to always ask before and after questions right, how is it before, how is it changed? Because just having the injury doesn't always equate to a large PI settlement if you can't explain what the impact to your life was. And this client, it sounds like, was great at explaining the impact, to friends and family, I guess.

0:14:06 - John Mobley
Absolutely. And the before and after kind of accounts and stories and witnesses that we collect on cases like this. They're arguably just as important as the medical documentation, because they show what the person was and then what the accident caused them to lose, and that loss is what we put money value in. If your life is forever changed in a worse way, then that's how we help value your claim. So in this case our client lost quite a bit, and so we realized we needed to get every possible penny out there for this client.

0:14:39 - Shane Smith
Now, before we get to that, now you said there were three tests they did, they did the VNG. What were the other two tests, and let's talk about those.

0:14:49 - John Mobley
One was a balance test, and this test is, you know, I haven't seen one done personally, but I've read about kind of what they do. They literally check your balance and will take you through a battery of tests where they can check to see if you're stabilizing properly or sometimes if you're leaning or losing your balance, and it varies. But they do a lot of different tests to kind of check and see if you're having issues with that, and if you test positive, which this client did, you get labeled a high fall risk. Okay. You may have heard that term in the hospital, some hospitals use it, nursing homes use it a lot. As we age, our you know, the, the elder members of our society become high fall risk and it really creates an additional burden on someone else, whether it's a caretaker, a family member. So now our client, unfortunately, is gonna have to have the support of family members, friends, who knows, maybe down the road. Nurses are personal kind of care assistants, because they're a fall risk, so they need someone to kind of monitor them.

0:15:50 - Shane Smith
And just being labeled that I know has an impact on your quality of life. It even- I've seen people in the hospital. The high fall risk person is told: "Don't get out of the bed without hitting the nursing button, don't go do anything by yourself without an aid." And just, I mean even just in that limited environment I've seen an impact I can't imagine in a nursing home or in a, in some other scenario the loss of ability you would have, just by being labeled a fall risk, because they they restrict you from doing everything. Right. And for good reasons.

I mean you know, I mean there's a valid reason, but it's still gonna impact you tremendously.

0:16:18 - John Mobley
Right. And if we were presenting this to a jury, we would definitely frame it as a loss of independence. Right? And that's a huge thing, and everyone can relate to that, because it's so nice. You know I'm hungry, I want to go grab some lunch, I'm gonna hop on the car and I'm gonna run down to get my favorite meal, come back home, enjoy myself. You lose all that when you lose your independence, and everyone can relate to that, because no one wants to be a burden on someone else. No one wants to have someone else take care of them. So in these types of cases, that's what we present to the jurors. We say you know, this is a loss of independence and this person needs to be compensated for that huge life change.

0:17:01 - Shane Smith
Yeah, no, now that I think about it, I mean even just getting out of your favorite chair and going in the kitchen and making a sandwich. It has increased risk, right? What about people who live in two-story homes?

0:17:11 - John Mobley
Oh, it's a nightmare. Some of these clients that I have with these symptoms, they would have to completely overhaul their life. If they lived in a two-story house, that becomes a obstacle course. They probably need to downsize or even consider moving, and chances are that probably is what happens on a lot of cases.

0:17:28 - Shane Smith
That's a huge impact, obviously, because you have to sell, realtor fees, the hassle, find a place that works, leave your home which, for some people, they've lived in the same home for 10, 15, 20 years, and you wipe all that away and you move into a new place where maybe you didn't raise your kids anymore, which for some people isn't a big deal and for other people it's a huge deal, depending on how your lifestyle has been. Yeah. And I can just imagine in today's environment, everything would be much more limited to finding a one story home that would work financially. Absolutely. So that's the second test. What was the last test, John?

0:18:04 - John Mobley
The last test was the brain check and that is a cognitive battery. And when we say cognitive battery, that basically means that it tests things like recall, basic facts, your ability to remember things. This client performed very poorly, and what they do is they compare how you performed to the rest of basically the general public so they can actually give you a percentile result. It's kind of like taking the SATs a little bit. Yeah, you don't study for this test, but it is a test, and when you score very, very, very, very poorly, it's typically indicative, when matched up with other symptoms, it helps support the fact that the brain was injured and now it's having issues recalling things, memory. And these are important tasks when you think about jobs, managing your own life, organization skills, planning your day out, executive functions. And if you can't do that, then guess what? Life just got a whole lot harder.

0:19:04 - Shane Smith
Things we don't even think about really. We think they're normal stuff. Just plan, what do I gotta do today, this, this and this? Go to the store, go to work, get gas and my car, all those things. And they lose the ability to do that or it becomes much harder. Is that right?

0:19:15 - John Mobley
Absolutely, and you know when you can't do these things, then people tend to get frustrated. Makes life harder. You see decreasing job performance, maybe you get terminated from your job, maybe you can't find a new job. So it's a huge disruptor to life.

0:19:32 - Shane Smith
Wow, all right. So those are the three big tests. Our client had some injuries. What happened on this?

0:19:38 - John Mobley
So after we reached kind of a, what we call a stabilized point, we had to stick with the treatment for a long time because, you know, if the symptoms don't get better at the six month, 12 month range, then they're unfortunately typically permanent, which we've talked about in the past. So it's gonna take, you know, 12 months to figure out where you're at.

Yeah, we never rush these cases. We like them to just evolve organically so we can see exactly where the client has started, where they're going to. In this case, that is exactly what happened, where the symptoms basically stabilized and we were able to move the case forward, kind of generally knowing that nothing else was gonna occur symptom-wise. And then, once we were able to do that, we submitted a demand to, there were numerous insurance companies involved in this case, so we had a bunch of negotiation ahead of time.

0:20:30 - Shane Smith
How do you end up with bunches of insurance companies?

0:20:34 - John Mobley
So one of our goals as the attorney is to identify any and all monies and covers that may be out there, and a lot of times we see you can have the defendants vehicle, the owner sometimes. If someone else is driving the owner's car, you have the owner's insurance, and then the defendant driver's insurance.

You can go after those too. After those are exhausted, then you have your own insurance, any work insurance if you're in a work vehicle. In North Carolina, it has some great laws called resident relative, where if anyone who you are married to are related to by blood, and that goes way far out, it can be a second cousin, is living with you, then you can use their insurance as well.

0:21:17 - Shane Smith
All right, so that's part of your job as well as helping the client is to do some digging, basically, and in this case it sounds like you dug around and you guys found multiple insurance companies to try to help this client out.

0:21:30 - John Mobley
We did. And there was such a good job done by the medical doctors to document the file that, at least for the first two insurance companies, we got them to give us all their money very, very quickly.

The last two were a fight.

And when we have pushback from the insurance providers, when we know what has happened to our client, we know the severity of the injuries, the medical documents are clear, then I realize it becomes a point and a goal for me that I'm gonna need to educate the adjuster on just how bad this is. If you're not in, you know, someone that deals with brain injuries a lot, one of these insurance adjusters, then you might not know just how life changing they are. And that's when we come in and we use those before and after letters. We use the diagnosis that the neurologist gave us and we show that at every single medical provider symptoms of the brain injury were present, and then we just explain basic things like you know, you can't remember how to drive home.

After having some serious negotiations and providing them with supplemental information, we were able to get the third insurance company to give us all the money, and then we got very, very low offers from the final insurance company. We went through the same kind of rotation of education, educating the adjuster, providing more supplemental information, and then we were able to get all the money after, you know, a long negotiation battle.

0:22:52 - Shane Smith
What's the outlook for our client? How is he doing at the end of this? Has life gotten manageable?

0:22:57 - John Mobley
It's manageable. And the thing with these brain injuries is that it's a new normal, never going to have, be completely healed. This stuff is permanent. So that is the unfortunate aspect of it. But you know, getting a very large six figure plus settlement can help with some of the costs associated with this new normal. That would be things like helping with the fall risk and helping with the memory issues, being- having, now having money to potentially get treatment like cognitive therapy. We talked about the cognitive brain check you can do, at home mental exercises to try and stay sharp, improve any areas that were injured in your brain and kind of regrow that brain area. So it really helps our client when we can get a good settlement so that they have a lot of options moving forward.

0:23:48 - Shane Smith
And that's really what it does, right? It provides options to make life more manageable? Correct. Okay. John, I mean it sounds like we just had a client in a bad situation and by your digging and making sure they got the best medical care they could, and digging into all the policies and finding all the money, we were able to make a difficult situation more manageable. What advice would you give to anybody listening who's been in an accident like this? What one piece of advice would you tell them?

0:24:14 - John Mobley
I think that the first thing you need to do immediately is seek medical care from an emergency medical situation, go into the ER, and then your next phone call should be to an attorney. Yeah, brain injury cases are too tough to navigate by yourself, especially if you are the person with the brain injury, if you're the person who had the brain injury right.

You need help not only from family and friends, but you need help from an attorney to navigate this process, because they are some of the most life-changing injuries that you can sustain in a motor vehicle accident.

0:24:46 - Shane Smith
It sounds like even in this particular case, I mean, you had to do a ton of educating to the adjusters for these second and third and fourth insurance policies to get them to understand the severity of injury, or at least to acknowledge the severity of it and then pay up.

0:25:01 - John Mobley
Correct. It's complicated science, it's complicated studies, it's a lot of anatomy and physiology and so, unless you are doing these cases day in, day out, it can be tough to understand everything, and this is why education is such a big part of educating these adjusters so that they properly value the cases.

0:25:21 - Shane Smith
All right, good deal with John. Thanks for being on the show today. We appreciate it. For anybody listening: if you liked what you heard or are trying to get more information on brain injuries and concussions, hit like and subscribe down below, hit the bell for notifications. And remember if you're in pain, call Shane 980-999-9999. And if you've got a question for John that you'd like him to answer to, if you'll submit that to info at shanesmithlawcom, we'll try to get an answer for you right away. In pain, so I call Shane 980-999-9999. In pain, call Shane.