BRAIN INJURY,
1992, VOL. 6, NO. 5,387-389
Editorial Financial compensation and head injury
Brain Inj Downloaded from informahealthcare.com by Mcgill University on 01/05/15 For personal use only.
WILLIAM W . MCKINLAY a n d C A T H E R I N E KILFEDDER Case Management Services, Balerno, Edinburgh, Scotland, UK ‘Financial compensation’ and ‘head injury’ are two topics which have long been linked in the minds of health professionals, and there is no doubt that some suspicion may arise as to the genuineness of impairments in individuals who are known to be claiming compensation. It would, however, be unfortunate to fail to acknowledge two simple truths. Firstly, the great majority of those who have suffered frank brain injury do not exaggerate or invent symptoms. It has been shown that the frequency with which a variety of physical, cognitive, and emotionaVbehavioural sequelae are found and reported after head injury does not &ffer significantly between those cases in which a claim for financial compensation is being pursued and those in which it is not [l]. If there is a danger, it is that some of those with serious brain injury may make light of their symptoms so that unless a percipient health professional assesses them carefully, the extent of their disability may not be uncovered [2,3]. Secondly, significant brain injury carries major implications for the future of the injured person and his or her family. In cases where there has not been access to specialized rehabilitation, major features of the post head-injury picture are poor employment prospects and stress on caring relatives. As regards return to employment, in Brooks et al.’s [4] study of 134 cases between 2 and 7 years post-injury, the percentage in employment fell from 86% before injury to 29% after injury, and there was no improvement in the percentage employed between two and seven years post-injury. There is also significant stress on caring relatives, making them much more vulnerable, and in need of help, support, and respite: indeed Livingston et al. [5] have shown that the levels of stress are far from trivial, and are ofien of sufficient intensity that they would normally be considered to warrant psychiatric or psychological intervention. Moreover, it is clear that family members experience a range of problems [6] and that the levels of stress they experience do not decline, but indeed worsen with the passage of years [7]. Against this background, suitable financial compensation can provide the injured person with access to rehabilitation and care services to an extent that is often not otherwise possible. Such rehabilitation and care will often impact considerably (e.g. [S-111) on the major problems that would otherwise be present long-term. Furthermore, a proper financial settlement can mean that the brain-injured and their families need not suffer, in addition to the disabilities resulting from injury, the additional burdens of the extensive financial hardship which may also result from brain injury [12]. However, it is not the severely brain-injured who give rise to the greatest difficulties as 0269-9052/92 $3.00 0 1992 Taylor & Francis Ltd.
Brain Inj Downloaded from informahealthcare.com by Mcgill University on 01/05/15 For personal use only.
regards financial compensation, but rather it is those cases i n which the presence or extent of brain injury is iii doubt. but who nevertheless claim significant disability. I t is case\ huch ‘IS these which Aniihay Levy [13] discusses in his paper in this issue of Brain Ir!jury, Le1.y lids provided what he calls a ‘humble sketch’ and he deserves our gratitude for doing s o in an area in which it is notoriously difficult to draw firm conclusions. What of his cases? Are their symptoms genuine? 130 they remit on settlement of thc claim? And is it helpfiil to use the term ‘compensation neurosis’? Many will disagrec lvitli Levy‘s resurrection of the term ‘compensation neurosis’, arid no doubt many of the ’difficult’ cases, in which there is considerable syniptomatology after a head injury which is not ofgreat severity, may be found o n careful examination to have other diagnoses. such as Post Concussional Syndrome, Post Traumatic Stress Disorder, and other affective and anxiety-based disorders. Nevertheless, Levy has opened up for discussion an importmt and difficult area. As he notes, even in cases where the disorder is hard to define and may seem out of proportion to the original trauma, it is not necessarily the case that settlement of the case will swiftly bring the symptoms to an cnd. Whether that means the symptoms are ‘genuine’ is harder to say: however, Levy’s paper illustrates that symptoms, not directly attributed to the presence or extent of brain injury, niay form part of the overall picture without being simply actuated by the desire for financial gain. Moreover, by implication, Levy’s paper suggest5 that there are dangers in a prolonged litigation process. While there are indeed real dangers in such a process which deserve senous consideration, they must be set alongside the advantages of a robust adversarial system (ice 1141). I n such a system, the lawyer may choose whichever ‘expert’ he wishes, and that ‘expert’s’ evidence may be ‘iet against the evidence of other ‘experts’, and niay be fully tested in the open and vigorous questioning of cross-examination. Other legal systems may be less likely to reinforce the injured party’s notion of a stniggle by replacing the adversarial system instance by having a single court-appointed with a more bureaucratic procedure-for ‘expert’, as in France [ l 5 ] .However, such approaches may contain even greater dangers. For example, the first author has come across a case in the UK (and not unfortunately an isolated example) which is analogous to the court-appointed expert system inasmuch as one ‘expert’ decided on whether to award a benefit. I n this case, a woman with severe disability resulting from severe bifrontal damage to the brain was reportedly refused a state benefit on two occasions: the examining state-appointed ‘expert’ refused to interview her husband, and presumably had not fully exaiilliied the records, but relied on the patient’s own testimony that she had few difficulties. This is in spite of the fact that lack of insight on the part of patients leading to the need to use other sourccs of information, including an interview with a relative, is widely recognized amongst health professionals experienced in brain injury (e.g. [ 2 ] , [ 3 ] )I.n fact this woman, although reasonably mobile, was very dependent indeed, requiring supervision nearly 24 hours per day and requiring help with nearly all activities of daily living. IJespite thc delays and disagreenients inherent in an adversarial system, it is reasonable to suppose that if the above example had been dealt with in an adversarial way, the unchallenged and completely uninformed views of the ‘cxpert’ would not have bcen able to prevail.
References I . M(:KINL.sY,W. W.. BRCWKS,I). N. and UONI), M. R.: Post-roncussional symptoms, financial compensation and outcomc of wvcrc blunt h e x l irijuq-. J i w n a l elf LYeirrolyy, Neurosurgery and P.
1992, VOL. 6, NO. 5,387-389
Editorial Financial compensation and head injury
Brain Inj Downloaded from informahealthcare.com by Mcgill University on 01/05/15 For personal use only.
WILLIAM W . MCKINLAY a n d C A T H E R I N E KILFEDDER Case Management Services, Balerno, Edinburgh, Scotland, UK ‘Financial compensation’ and ‘head injury’ are two topics which have long been linked in the minds of health professionals, and there is no doubt that some suspicion may arise as to the genuineness of impairments in individuals who are known to be claiming compensation. It would, however, be unfortunate to fail to acknowledge two simple truths. Firstly, the great majority of those who have suffered frank brain injury do not exaggerate or invent symptoms. It has been shown that the frequency with which a variety of physical, cognitive, and emotionaVbehavioural sequelae are found and reported after head injury does not &ffer significantly between those cases in which a claim for financial compensation is being pursued and those in which it is not [l]. If there is a danger, it is that some of those with serious brain injury may make light of their symptoms so that unless a percipient health professional assesses them carefully, the extent of their disability may not be uncovered [2,3]. Secondly, significant brain injury carries major implications for the future of the injured person and his or her family. In cases where there has not been access to specialized rehabilitation, major features of the post head-injury picture are poor employment prospects and stress on caring relatives. As regards return to employment, in Brooks et al.’s [4] study of 134 cases between 2 and 7 years post-injury, the percentage in employment fell from 86% before injury to 29% after injury, and there was no improvement in the percentage employed between two and seven years post-injury. There is also significant stress on caring relatives, making them much more vulnerable, and in need of help, support, and respite: indeed Livingston et al. [5] have shown that the levels of stress are far from trivial, and are ofien of sufficient intensity that they would normally be considered to warrant psychiatric or psychological intervention. Moreover, it is clear that family members experience a range of problems [6] and that the levels of stress they experience do not decline, but indeed worsen with the passage of years [7]. Against this background, suitable financial compensation can provide the injured person with access to rehabilitation and care services to an extent that is often not otherwise possible. Such rehabilitation and care will often impact considerably (e.g. [S-111) on the major problems that would otherwise be present long-term. Furthermore, a proper financial settlement can mean that the brain-injured and their families need not suffer, in addition to the disabilities resulting from injury, the additional burdens of the extensive financial hardship which may also result from brain injury [12]. However, it is not the severely brain-injured who give rise to the greatest difficulties as 0269-9052/92 $3.00 0 1992 Taylor & Francis Ltd.
Brain Inj Downloaded from informahealthcare.com by Mcgill University on 01/05/15 For personal use only.
regards financial compensation, but rather it is those cases i n which the presence or extent of brain injury is iii doubt. but who nevertheless claim significant disability. I t is case\ huch ‘IS these which Aniihay Levy [13] discusses in his paper in this issue of Brain Ir!jury, Le1.y lids provided what he calls a ‘humble sketch’ and he deserves our gratitude for doing s o in an area in which it is notoriously difficult to draw firm conclusions. What of his cases? Are their symptoms genuine? 130 they remit on settlement of thc claim? And is it helpfiil to use the term ‘compensation neurosis’? Many will disagrec lvitli Levy‘s resurrection of the term ‘compensation neurosis’, arid no doubt many of the ’difficult’ cases, in which there is considerable syniptomatology after a head injury which is not ofgreat severity, may be found o n careful examination to have other diagnoses. such as Post Concussional Syndrome, Post Traumatic Stress Disorder, and other affective and anxiety-based disorders. Nevertheless, Levy has opened up for discussion an importmt and difficult area. As he notes, even in cases where the disorder is hard to define and may seem out of proportion to the original trauma, it is not necessarily the case that settlement of the case will swiftly bring the symptoms to an cnd. Whether that means the symptoms are ‘genuine’ is harder to say: however, Levy’s paper illustrates that symptoms, not directly attributed to the presence or extent of brain injury, niay form part of the overall picture without being simply actuated by the desire for financial gain. Moreover, by implication, Levy’s paper suggest5 that there are dangers in a prolonged litigation process. While there are indeed real dangers in such a process which deserve senous consideration, they must be set alongside the advantages of a robust adversarial system (ice 1141). I n such a system, the lawyer may choose whichever ‘expert’ he wishes, and that ‘expert’s’ evidence may be ‘iet against the evidence of other ‘experts’, and niay be fully tested in the open and vigorous questioning of cross-examination. Other legal systems may be less likely to reinforce the injured party’s notion of a stniggle by replacing the adversarial system instance by having a single court-appointed with a more bureaucratic procedure-for ‘expert’, as in France [ l 5 ] .However, such approaches may contain even greater dangers. For example, the first author has come across a case in the UK (and not unfortunately an isolated example) which is analogous to the court-appointed expert system inasmuch as one ‘expert’ decided on whether to award a benefit. I n this case, a woman with severe disability resulting from severe bifrontal damage to the brain was reportedly refused a state benefit on two occasions: the examining state-appointed ‘expert’ refused to interview her husband, and presumably had not fully exaiilliied the records, but relied on the patient’s own testimony that she had few difficulties. This is in spite of the fact that lack of insight on the part of patients leading to the need to use other sourccs of information, including an interview with a relative, is widely recognized amongst health professionals experienced in brain injury (e.g. [ 2 ] , [ 3 ] )I.n fact this woman, although reasonably mobile, was very dependent indeed, requiring supervision nearly 24 hours per day and requiring help with nearly all activities of daily living. IJespite thc delays and disagreenients inherent in an adversarial system, it is reasonable to suppose that if the above example had been dealt with in an adversarial way, the unchallenged and completely uninformed views of the ‘cxpert’ would not have bcen able to prevail.
References I . M(:KINL.sY,W. W.. BRCWKS,I). N. and UONI), M. R.: Post-roncussional symptoms, financial compensation and outcomc of wvcrc blunt h e x l irijuq-. J i w n a l elf LYeirrolyy, Neurosurgery and P.
