Uncover hidden damages: Early onset dementia in brain-injury cases

Are you seeking compensation for all of plaintiff’s future harm, including earlier dementia?

2024 August

Plaintiffs’ attorneys who have represented victims of traumatic brain injury have seen this time and time again. Their brain-injured client exhibits symptoms and impairment, but they maintain some level of basic functioning and may even return to work. However, when advocating full compensation for harms to the plaintiff, the story cannot simply end there.

In recent years, the scientific community has increasingly recognized the fact that TBI, including mild TBI, can cause early onset dementia. Numerous studies have shown that traumatic brain injuries can initiate pathological processes that lead to the occurrence of neurodegenerative disorders, including dementia, more quickly than otherwise.

Because these pathological processes take time, the victim of a traumatic brain injury may not show signs of dementia for several years. As a result, the full extent of the harm these plaintiffs will suffer is not accounted for and the extent of their future losses is overlooked. Plaintiffs’ attorneys should be aware of these scientific studies so that the neurodegenerative forecasts can be incorporated into lifecare plans. Doing so may add hundreds of thousands of dollars in special damages for the injured plaintiff.

The research

The correlation between traumatic brain injury and early onset dementia has been established by numerous independent studies. The following summarize some of the literature.

A study from 2017 examined the then-extant research on the subject and concluded that, although there was some variability in findings, the research supported the conclusion that traumatic brain injury was associated with earlier onset of some neurodegenerative disorders. The authors concluded that the literature proved that traumatic brain injury initiated an accumulation of pathological processes related to several neurodegenerative disorders. The authors proposed a model showing how traumatic brain injury hastened the onset of neurodegenerative disorders, particularly in those with other risk factors, but then stabilized, resulting in a similar course of decline to individuals with dementia who did not have a history of traumatic brain injury. (Christian LoBue, Ph.D., et. al., Neurodegenerative Dementias After Traumatic Brain Injury, J Neuropsychiatry Clin Neurosci. 2018 Winter; 30(1): 7-13, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6764094)

A subsequent study from 2018 examined the association between the severity of traumatic brain injury, loss of consciousness, and dementia diagnosis in veterans. This study examined the medical history of over 350,000 veterans and it concluded that even mild traumatic brain injury without the loss of consciousness led to a more than two-fold increase in the risk of dementia diagnoses. This study provides powerful support for the inclusion of dementia-associated care costs in special damages. (Deborah E. Barnes, Ph.D., M.P.H., et al., Association of Mild Traumatic Brain Injury With and Without Loss of Consciousness With Dementia in US Military Veterans, JAMA Neurol. 2018 Sep 1; 75(9):1055-1061, available at https://jamanetwork.com/journals/jamaneurology/fullarticle/2679879)

Finally, another study from 2018 examined cerebrovascular dysfunction and concluded that it played a key element in the development of neurodegeneration after traumatic brain injury. The authors proposed that traumatic brain injury initiates cerebrovascular dysfunction by accelerating the deposition of amyloid-beta and tau proteins, which in turn, leads to neurodegeneration and dementias. The authors suggest that clarifying this connection could lead to the identification of novel biomarkers and therapies. (Jaime Ramos- Cejudo, et al., Traumatic Brain Injury and Alzheimer’s Disease: The Cerebrovascular Link, EBioMedicine. 2018 Feb; 28: 21-30, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5835563)

Treating physician and expert opinions on diagnosis and causation

When you have a client with a traumatic brain injury, you should discuss with the treating doctors the above research correlating traumatic brain injuries and early onset dementia and ask them if they believe there is likelihood of early onset dementia that can be correlated with the injury.

If so, try to determine what the likely timeframe for the early onset dementia will be, such as five or 10 years earlier than it would otherwise have occurred. Keep in mind that your expert does not need to establish that the client will develop early onset dementia to an absolute certainty, only that it is more likely than not. To prove diagnosis of injury, you must prove it is more likely true than not true (CACI 200); and for causation, you need to prove it is a substantial factor, which is a factor that a reasonable person would consider to have contributed to the harm. (CACI 430.) For the damages, you must prove that the plaintiff is reasonably certain to suffer that harm and the amount of money that will reasonably compensate plaintiff for the harm. (CACI 1820.) The above studies combined with a favorable expert opinion should lay the proper foundation for your client’s life care plan.

Physicians use various diagnostic tools combined with medical history and other information, including neurological exams, cognitive and functional assessments, brain imaging (MRI, CT, PET) and cerebrospinal fluid or blood tests to make an accurate diagnosis of dementia. An expert’s opinion regarding the diagnosis of early onset dementia could potentially be greatly assisted by diagnostic testing such as blood tests that can help predict the presence of amyloid changes in the brain or the presence of neurodegenerative disease or neuronal damage. While such blood tests cannot be used as a stand-alone test to diagnose Alzheimer’s disease or any other dementia, they could be used as part of a diagnostic workup with other exams. (https://www.alz.org/alzheimers-dementia/diagnosis/medical_tests)

Additional care for earlier-onset dementia

If your expert determines early onset dementia is likely, you can you use that opinion as the foundation for a life-care plan that will account for the substantial costs associated with the care that will be necessary for the plaintiff. For every life-care plan, plaintiff needs not just the diagnosis, but the medical testimony related to causation and likelihood this will occur in the future. Once you have the opinion of the diagnosis of early onset dementia, you must then obtain an opinion on when the dementia will begin. Here, the expert must explain if it will start, for example, five years earlier than normal or 10 years earlier than normal. This opinion will then establish the time period and the duration that the additional care for the plaintiff is necessary. It is imperative that plaintiffs’ attorneys discuss these articles and the foundation for a diagnosis and opinion on medical causation. In order to accomplish this, the plaintiff attorney needs to speak with treating doctors and experts to ensure these opinions can be used for a future life care plan.

Care for dementia in lifecare plans

A life-care plan is a model of a physician’s current and future medical treatment, with associated costs, for individuals who have experienced catastrophic injury or have chronic health care needs. They are broken down by the plaintiff’s medical needs, purpose, frequency, duration, purpose, cost per unit, and cost per year.

The life care plan for brain injuries would likely include routine and non-routine medical care in various specialties such as neurology and physical medicine and rehabilitation, rehabilitative therapy such as vestibular, speech, and occupational therapy, medical equipment, diagnostic testing such as MRIs, CTs, EEGs, and a host of medications. It can also include costs for ER visits, hospitalizations, nurse case management, and a fiduciary.

When adding care specifically for dementia, costs are extensive. Care for dementia requires 24-hour care, whether in-home health care or assisted living facilities, skilled or non-skilled. A non-skilled nursing facility or in-home care provides help with everyday care and needs whereas skilled facilities or in-home care provide the same level of services, with a great focus on the provision of medical care. There are also facilities that specialize in treatment of those with brain injuries. The cost of these facilities or home health care can range between approximately $10,000 and $30,000 per month, or between $120,000 and $360,000 per year. Care for dementia would be required from when it is likely to begin and for the remainder of the plaintiff’s life. The plaintiff should not be left to shoulder these costs, and therefore, it is the plaintiff attorney’s job to advocate for it.

Conclusion

As plaintiffs’ attorneys, our job is to ensure our clients are compensated for their injuries. Although our clients who have suffered traumatic brain injuries may appear to maintain a basic level of functioning and may even return to work, the medical literature establishes that they are at substantially increased risk of early onset dementia. If overlooked, these future costs are then left for the plaintiff to completely figure out on their own. This would be unjust. Therefore, it is imperative that, where applicable, plaintiff’s attorneys incorporate this recent scientific research into discussions with the treating physicians and expert physicians to provide the foundation for their opinions, which would then form the foundation for a life care plan and general damages discussions with the client and other witnesses.