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The Value of Educators and Brain Injury Education Specialists in a Pediatric Legal Case

As published in BRAIN INJURY Professional Magazine, Vol. 14, Issue 3

The Value of Educators and Brain Injury Education Specialists in a Pediatric Legal Case

Authors: Brenda Eagan Brown, MEd, CBIS, Sharon Grandinette, MS, Ed, CBIST, Casey R. Johnson, JD, and Michael M. Shea, Jr, JD

Introduction

The Centers for Disease Control (2017) considers traumatic brain injury (TBI) a prominent disabler of youth. Following discharge from hospital or rehabilitation and subsequent return to school, children have one primary role, to acquire new learning that will lead to successful post-high school options. However, following a brain injury (BI) of any severity, students often experience fluctuating levels of functioning. Some of the impairments are temporary, while others may leave the student with life-long deficits. Many brain injuries are caused by a tortious situation resulting in legal action. Utilizing a Brain Injury Educational Specialist (BIES), as well as deposing the student’s teachers during the litigation process are valuable additions to the team of experts typically used in pediatric BI legal cases.

Emerging research demonstrates even mild pediatric TBIs (concussions) have the potential to result in long-term risks in behavior and cognitive performance (Rivara et al., 2012; Taylor et al., 2015). During a legal case, one might receive records that report a medical diagnosis of “mild TBI”. However, this medical diagnosis may not equate to the actual functioning of the child in a real-life setting. The same is often true in moderate to severe brain injury (BI) cases, even when deficits are more apparent. Although legal case files often include medical and school records (pre-and post-injury grades, work samples, absences, disciplinary records, standardized test scores), as well as neuropsychological evaluations and medical/rehabilitation consults, they do not provide an accurate picture of the child’s daily school performance.

Issues Unique to Pediatric Cases

Prior knowledge and previously acquired skills are not commonly disrupted following a BI. Rather it is the ability to acquire and utilize new information that is often impacted. Furthermore, the brain continues to mature through the mid- to late- 20’s (Giedd et al., 1999). It is not until the previously injured areas of the brain are tasked to process complex information under increasing demands that new deficits may emerge (Babikian, Merkley, Savage, Giza, & Levin, 2015; Prasad, Swank, & Ewing-Cobbs, 2017). Each year may unveil new learning challenges, causing the child to fall further behind their peers. Social, behavioral and emotional issues often surface which significantly impact not only educational performance, but also home and community functioning. Hence, it is thought to be good practice to wait as long as possible to litigate a child’s case following injury, allowing time for the brain injury to fully reveal the entire extent of the acquired deficits.

TBI specific educator knowledge is required to identify and implement necessary academic supports (Davies, Fox, Glang, Ettel, & Thomas, 2013; Savage et. al., 2009). Lack of teacher BI knowledge can lead to obstacles for a student upon return to school including: poor communication between parents, health care providers, and schools; delayed identification of social or cognitive-communicative impairments until the child declines academically, socially, and behaviorally; or failing to appreciate prior baseline functioning (the child performs adequately, although not as well as prior to the BI and simply “falls through the cracks” (Grandinette, 2012).

Benefits of a Brain Injury Educational Specialist as an Expert Witness

A BIES can be an invaluable litigation tool for evaluating and effectively presenting a child’s comprehensive, ongoing, and future educational needs. This individual possesses the unique skills to review medical, assessment, and educational information, and form expert opinions, drawing from a specialized pediatric brain injury perspective to ensure the full effects of a child’s BI are understood.

Retaining and engaging a BIES as early as possible, long before the litigation process begins provides the best opportunity for that child to receive appropriate educational support services at school to ensure an optimal outcome. This is particularly true given the current litigation climate in which mitigation of damages is frequently raised as a defense in an attempt to reduce or eliminate the damages awarded to a child who suffered a BI (CACI 3930; Model Civil Jury Instructions 5.3).

The BIES can:

  • Guide parents and school to identify and access proper school/ community supports
  • Work with the family to initiate the referral process for a school evaluation
  • Offer school staff training
  • Contribute recommendations regarding curriculum, accommodations, IEP goals, and school-based therapies
  • Monitor student progress over time to ensure compliance in the delivery of services

In addition to providing school supports, the BIES through parent/ teacher interviews, home/school observations, and review of onsite school files, gathers valuable information not typically found in requested records received. Information includes prior and current functional status, pre and post injury medical/family history, and academic, adaptive, social, and behavioral functioning levels. The compiled information reveals critical information pertaining to actual performance in both academic and non-academic locales.
Furthermore, the BIES’s comprehensive approach culminates in a detailed report comparing the student’s prior and current functioning and future needs in all settings that can inform the other experts’ work. As a result, a BIES offers an incredible advantage to the child’s case that will only return dividends as the case moves forward.

Following a moderate TBI from a MVA one year ago, a 9th grade student, whose medical records indicated a brain bleed and loss of consciousness for 20 hours at the time of injury, was assessed by a neuropsychologist for a legal case. The findings indicated the student presented with intelligence and speed of processing skills that fell within the high average range. In isolation, these results depicted a very different profile than what was occurring in his daily life. After both school and home observations, and subsequent interviews with teachers and parents, substantial evidence was gathered by the BIES indicating the student exhibited severe challenges during the school day, affecting not only class work, but also social interactions. While the student could easily generate answers based on prior knowledge, he exhibited great difficulty applying new information, was frequently off task, could not follow multistep directions, and required continual prompting by teachers. Investigation into the school records revealed that two years prior, the student had excelled in school with straight A’s, but now struggled to maintain C’s and D’s, and had received detention for speaking out in class five times that year. This highlights a common thread in BI cases. Students tend to perform well in testing situations taking place in a private room with no distractions, one-toone oversight, and prompting to remain on task. However, the same student may not exhibit this cognitive profile in a real-life setting that includes a classroom full of students, numerous distractions, multi-step directions, and multiple teachers. The home observation uncovered evidence that he struggled to follow routines related to chores, homework, organization, and self-care. The BIES was able to capture these functional impairments, crucial information when determining damages in a legal case.

The Benefits of Deposing Teachers

The child’s pre-and post injury teachers yield critical and insightful testimony. Their testimony can support neuropsychological testing, allowing the clinician to clinically correlate their test protocol with the real-world learning abilities and disabilities that the child experiences daily. In addition to neuropsychologists, this testimony assists other experts such as the life care planner and vocational specialist, when forming their opinions regarding the child’s likely functional levels, needs, and future outcomes had the injury never occurred.

In a recent case, a truck driver who did not see him due to a blind spot injured a child. As part of the case, an unbiased investigator interviewed the teacher, and her deposition was taken by the defense quite some time after the injury.

Q&A Excerpts from the deposition

Q. Do you recall Christopher?
A. Yes. He was a student in my class when he was in 3rd grade and then later again when he was in 5th grade.
Q. Have you kept in touch with Christopher since he graduated from your 5th grade class?
A. No.
Q. What did you tell the investigator?
A. I did tell him I remembered Christopher and I noticed differences. The reason I remembered Chris vividly is because he reminded me very much of my own son: Big boy, quick-witted; quick with a response, not always at appropriate times; didn’t like to do homework. After the accident, Chris was different, and at first I knew it was because of his recent accident, but he didn’t really get much better over time. The quick-wit was gone. He was not quick to reply, still didn’t like doing homework, but definitely, yes, there was a difference.
Q. Can you give me any examples?
A. It’s been a long time, but I just have this impression of a young man, very similar to my son, who was always quick with the repartee, always had something to say back. Afterwards, he was just quiet, sullen and withdrawn. I missed the boy he was before the accident.

An approach when interviewing or deposing teachers can include “notice” questions. Not, “What did you notice?” but rather, “Did you notice…?”

Q. You said you noticed that after the accident Christopher was much quieter. Is that an accurate description of the difference?
A. Yes.

Questions framed around many of the recognized BI symptoms are very compelling. The answers afford numerous opportunities for assessors to demonstrate real time correlation with their test data.

Q. Did you notice any other differences that he exhibited after the accident?

Specific questions might include, “Did you notice….”

  • Problems with memory, attention, concentration, tracking, processing, direction following, distractibility, impulsiveness?
  • Subjects that became more difficult?
  • Difficulties with:
    • Completing assignments and/or turning in homework?
    • Organization and time management?
    • Withdrawal, isolation or socialization with peers/teasing?

While this line of questioning provides important information, one cannot rely solely on teachers to recognize the impact a BI has on classroom functioning. Most teachers have not been trained to identify or academically support students with BI (Glang, Dise-Lewis, & Tyler, 2006). Utilization of a BIES ensures the jury is presented with an accurate picture of the child’s functions in daily settings, and serves as a bridge connecting other experts’ findings.

Brain injury is regularly referred to as a hidden disability in students because many re-enter school and appear to have returned back to normal. Often, school staff remains unaware that a BI occurred, unless notified by the parents. Even when notified, many educators do not have the training in the specific nuances and educational needs of students following a BI. Therefore, including the expertise of a BIES in legal cases will ensure that the current and future impacts of the child’s BI are recognized and well substantiated.

 

This article was republished with the expressed written and formal permission from Megan Bell Johnston.


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