John D. Winer, San Francisco
I. INTRODUCTION
As attorneys, we often make the mistake of attempting to compartmentalize our clients’ injuries. We often talk of orthopedic, neurological and psychological injuries as being three separate injuries. Doctors, who tend to specialize in specific areas of medicine such as orthopedics, neurology and psychiatry play into our tendency to compartmentalize injuries.
The fact is that every physical injury has a psychological and cognitive component. Every cognitive injury has a physical and psychological component and every psychological injury has a physical and cognitive component.
Fortunately, jurors intuitively understand that physical, emotional and cognitive injuries overlap. It is our experience that jurors are often confused by the testimony of doctors and the arguments of counsel which attempt to separate the various elements of injuries. We would be doing our clients a great service if we recognized the multiple components of any injury and tried the case based upon that recognition.
II. DEMONSTRATING OVERLAPPING INJURIES
The concept of overlapping injuries is best demonstrated by a simple drawing on a blackboard or piece of paper. Simply draw three large circles which overlap. Label one circle “cognitive,” other circle “emotional,” and another circle “physical.” Then, your expert can testify to the overlapping nature of injuries or you can explain the overlapping nature of injuries to jurors as part of an opening statement or closing argument.
The explanation begins with a description of the three components of an injury. The physical component involves an insult or injury to the bones or tissues of the body. The cognitive component involves an injury to a person’s ability to think. The emotional component involves an injury to a person’s feeling state or psychological state.
Next delineate which component of the injury each medical specialist treats. Orthopedists and neurologists treat the physical component of injuries. Neuropsychologists treat the cognitive component of injuries and psychiatrists and psychologists treat the emotional component of injuries.
However, all specialists, even defense doctors, will have to agree that the overlap between physical, emotional and cognitive injuries exists.
III. EXAMPLES
There are hundreds of examples of the overlap between the components of an injury. Let’s take examples common to most of our practices.
A. REAR-END AUTO ACCIDENT DISC INJURY
An electrician is rear-ended by another car at a relatively high speed. He herniates a disc, has an operation and is unable to work for four months.
Is this just an orthopedic or neurosurgical injury? No. Part of his injury is physical, that is, a disc has been herniated and he has had a surgery which will involve some scarring, however, this is much more than just a physical injury. There will most certainly be an emotional component. The pain and the immobility will cause emotional distress. The inability to work and support a family will cause emotional distress. It may be that plaintiff will become anxious and depressed, and, the emotional injury will rise to the level of a psychological injury. However, whether or not the plaintiff develops a mental disorder, we are talking about gradations of the emotional component of his injury. No matter how severe the emotional distress, there will be some.
Now what will the cognitive component of this plaintiff’s injury be? When he is in severe pain, his cognitive or thinking ability will be affected. He will have difficulty concentrating. He may become impatient. When he takes the drugs prescribed by his orthopedist, his thinking or cognitive ability will be further compromised.
Thus, to understand this man’s injury one must understand the physical, emotional and cognitive component of the injury.
B. MOTHER AND CHILD PSYCHIC TRAUMA
Let’s take another example. A woman is crossing the street with her child, and watches as her child is hit by a negligently driven car and killed.
The woman becomes extremely anxious and depressed, goes to see a psychiatrist who diagnoses a post-traumatic stress disorder. Is this simply a psychological injury? No. First of all, there will be a physical component. If the plaintiff is depressed, her physical movements will likely be slowed. If she is anxious, she will have physical symptomatology , including an elevated heart-rate, perhaps gastrointestinal distress and increased sweating. Further, there will be a cognitive component. She will not be able to concentrate. She will not be able to get her mind off her child and her thinking may very well become distorted.
C. PEDESTRIAN-CAR ACCIDENT HEAD INJURY
Finally, let’s take an example of a plaintiff with a closed head injury. Let’s assume that the patient is a pedestrian, struck by car, thrown 20 feet through the air, landing on his head. He is unconscious for 24 hours and amnesiac for two weeks. Clearly, the major component of this injury will be cognitive. He will likely have problems thinking and concentrating, however, he will also have physical symptomatology . Not only will his head hurt, but, as the plaintiff has trouble concentrating, he will develop additional headaches. There will also be a psychological component, as he likely become depressed and withdrawn.
IV. OVERLAPPING PROBLEMS
It is important to realize that these overlapping circles feed on themselves, complicating matters further and making treatment more difficult.
For example, let’s go back to the example of the electrician with the herniated disc. Long after the disc injury heals, there may be an emotional residual. For instance, the electrician may become fearful everytime he drives a car that he will be reinjured . This fear will cause stress which may very well increase the plaintiff’s back pain. When his back pain is increased, he will have difficulty thinking. The additional pain and problems with cognition will create further psychological distress.
Unfortunately, most doctors are so specialized that they fail to recognize this integrated concept of injury. Therefore, in any case in which you believe that there is a strong emotional or cognitive component, you should consider retaining a psychologist or neuropsychologist who will be more adept at explaining the multiple components of any injury to a jury.
This article was authored by John D. Winer. Winer, Burritt & Scott, LLP specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.