Anatomy of a Brain Injury Lawsuit: The Testimony About Ms. Burke’s Injuries and Damages
The trial featured extensive testimony about what the October 2000 stroke had done to Ms. Burke. The earlier small strokes had left her functioning largely intact. This final stroke, however, devastated her brain because it occurred on her dominant left side of the brain and involved areas important for thinking and speech.
According to the testimony of Dr. Daniel Weinberger, a renowned behavioral neurologist who examined Ms. Burke and reviewed reports of neuropsychological testing done on her, Ms. Burke, who was 44 years old at the time of trial, has a vascular dementia that has rendered her brain less functional cognitively than that of an 80-year-old person. She has “psychomotor slowing” that renders her slow in all activities. Ms. Burke lost 20-25% of her IQ, has a reading comprehension at the third or fourth grade level plus an “expressive aphasia” that renders her speech halting and difficult. She is easily confused and is vulnerable to being taken advantage of. She has serious problems with short-term memory. Even on the neuropsychological examination done for the defense lawyers, she failed approximately 55 of the 60 tests given.
Ms. Burke manages to survive on a day-to-day basis with five to six daily telephone calls to her mother, plus multiple visits each week from her mother. Her mother carries all heavy objects back and forth from one level of Ms. Burke’s townhouse to the other, because Ms. Burke’s residual right-sided weakness prevents her from carrying objects on stairs. Mrs. Torian also does all the heavy cleaning. Ms. Burke suffers daily from “cognitive exhaustion” due to the great efforts she must make mentally just to perform tasks that normal people can do on “autopilot,” according to Beverly Whitlock, head of Head Injury Rehabilitation and Referral Services in Rockville, Md., where Ms. Burke has had therapy for two years. Thus Ms. Burke needs to take a nap after a four-hour workday at her volunteer “sheltered” job at Prince George’s Hospital Center, where she does minor filing tasks and document shredding. Ms. Burke needs close help with all “executive tasks” that require planning. A trip to the grocery store is a day-long endeavor, according to her mother, because Ms. Burke forgets what she needs, forgets where things are in the store, and exercises poor judgment about the quantities she should purchase.
Ms. Burke’s social life has been destroyed. She is acutely self-conscious about her inability to speak normally and so avoids contacts with outsiders. Her entire social life is her mother, plus her sister’s occasional visits from North Carolina. She occupies herself with computer games and television where she formerly had a busy social life with friends.
It was undisputed at trial that Ms. Burke’s career in retail sales management was ruined. The defense presented non-credible vocational testimony that she might be able to work as a telephone answering person, a job that all other witnesses said would be preposterous for her because of her word-finding difficulty related to the stroke, a condition called “expressive aphasia.”
Ms. Burke will need to go into an assisted living facility because of her inability to manage her own affairs. Her mother was 71 years old at the time of trial in March 2004, and the plaintiff’s “life care plan” predicted she would need to make the transition to assisted living in approximately six years. This plan was fully supported by the objective evidence of Ms. Burke’s cognitive and physical disabilities. The plan was endorsed by Dr. Weinberger and by Beverly Whitlock, the head of the brain injury rehabilitation facility which Ms. Burke has attended since 2002.
The defense called several witnesses who were hired to examine Ms. Burke and who tried to minimize the damage that Ms. Burke had suffered. None of these persons had an M.D. Their credibility was impeached by cross-examination showing that they had failed to interview significant persons such as Ms. Burke’s mother and her therapists, and because of their failure to fully grasp all of Ms. Burke’s disabilities.
After two days of deliberations, the jury, which was dominated by young professionals, awarded $5.7 million in damages to Ms. Burke. Included were specific sums to pay her back for the lost lifetime wages from her retail sales management career, other money to fund her future care needs, and money for her lost enjoyment of life.
Additional Information
CT Scans Showing Brain Damage Caused by a Surgeon.
Brain Injury Lawsuits: Track Record of Patrick Malone & Associates, P.C.
Legal options
Good medical care can often minimize or prevent a significant brain injury from one of these medical conditions. Or there can be other ways in which the brain injury could have been prevented. So a lawsuit can be appropriate in some circumstances, depending on what an investigation by a qualified lawyer finds.
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