Brain Injuries

Burns v. Gagnon, 283 Va. 657 (2012), is Mr. Waterman’s brain injury case decided in his client’s favor by the Supreme Court of Virginia, which inter alia recognized a new duty to supervise and care for students by school officials:

1.(05/21/12)Appellant’s Petition for Rehearing
2.(05/21/12)Petition for Rehearing of Appellee/Cross-Appellant
3.(04/20/12)Opinion of Virginia Supreme Court
4.(12/05/11)Reply Brief of Appellant, Gregory Joseph Gagnon
5.(11/21/11)Brief in Opposition and in Support of Assignments of Cross-Error of
Appellee/Cross-Appellant, Gregory Joseph Gagnon
6.(10/25/11)Brief of Appellant, Gregory Joseph Gagnon

In 2013, Mr. Waterman obtained a $3,500,000.00 jury verdict in Newport News for an 87 year-old woman who suffered permanent brain injury and hemiparesis due to medical malpractice.

In his medical malpractice trial November 26-December 7, 2012, Mr. Waterman was one of the very first lawyers to introduce into evidence NeuroQuant Analysis and Diffusion Tensor Imaging (“DTI”) based on 3.0 Tesla MRI. They dramatically illustrated convincingly for the jury the in-patient fall victim’s cerebral stroke and extension.

Fortunately, cutting-edge neuroimaging – 3.0 Tesla MRIs, Single Photon Emission Computed Tomography (“SPECT”), and Positron Emission Tomography (“PET”) – can show structural and functional abnormalities unlike traditional 1.5 Tesla MRIs and CTs. Further, neuropsychological testing still is complementary in identifying discrete weaknesses and corresponding affected areas of the brain.

Trauma that penetrates the skull causes brain injury that is obvious, graphic and understandable to all. On the other hand, closed head injuries inherently are hidden and frequently are undiagnosed, though the brain injuries they cause can be as serious and lasting.

The medical literature is clear that penetrating and closed-head brain injuries alike can result in post-traumatic amnesia, epilepsy, hyposexuality, personality changes, sleep disorders, diminished cognitive, neurolinguistic, and other functions. Moreover, such deficiencies can deteriorate further over time due to blood perfusion, neuronal, and other biochemical processes.

When confronted with substantial liability for a brain injury, the defense routinely tries to brand the victim a “malingerer,” disingenuously claiming inconsistent results, bad motivation and poor effort on neuropsychological testing. But the truth is that most brain injury patients score both positively and negatively on various tests because only some portions of their brain are damaged while others are not; and experts retained by the defense solely for litigation purposes, who are not the actual medical treaters, frequently have bias in favor of their payor.

Moreover, defense “hired guns” usually do not have the same patient history and clinical picture that the victim’s longstanding treaters have developed. Thus, treaters routinely possess unique perspective, opinions and credibility.