Brain Injury


According to the study, “Fatal traumatic brain injury, West Virginia, 1989-1998,” authored by Nelson Adekoya and Ranjit Majumder, West Virginia, a total of 4,416 Traumatic Brain Injury (TBI) deaths occurred in West Virginia in 1989-1998, for an annual average death rate of 23.6 per 100,000 population. This was higher than the national rate (20.6 per 100,000).

While many of these cases result from gunshot wounds which sometime end up in civil courts, others result from automobile accidents and a wide-variety of other incidents which will likely to become litigated cases.   In this regard, some brain injuries are the result of physical forces applied to the head or neck (TBI) and others are categorized as Acquired Brain Injury (ABI) resulting from other events.  The Brain Injury Association of West Virginia provides more detailed definitions and resource links at its website.

Many of the issues which arise in the litigated brain injury case center on proximate causation as determined by medical and scientific evidence.  Such evidence will first be required to pass the trial court’s gate-keeping function under the Daubert/Wilt analysis adopted by the West Virginia Supreme Court of Appeals.

While the role of a mediator does not include making findings of fact or legal rulings, it is helpful to brain injury litigants and their counsel to have a mediator who is knowledgeable about the law as it applies to such cases and is knowledgeable about the various neuropsychological tests and neuro-imaging techniques used to prove or refute brain injury allegations.

Some of these issues are addressed from time-to-time in my blog, Mediating Certainty, where I make posts concerning mediation generally and concerning important West Virginia legal developments.

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