The Search for the Perfect Plaintiff

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Posted on 27th June 2008 by Gordon Johnson in Uncategorized

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The technique almost all attorneys hired by insurance companies use to defend brain injury cases, is to blame all of the problems the injured person has after the accident on psychological problems the plaintiff had before the accident. The reason is that post concussional symptoms have much in common with the symptoms someone might have from depression. For that reason, defense attorneys and the doctors they hire will blame it on pre-morbid (pre-injury) factors, even if there is no documentation of such psychological issues beforehand.

Thus, experienced plaintiff attorneys become progressively more gun shy about representing someone who has had documented problems before they got hurt. History of migraine, don’t want the case; history of counseling, don’t want the case; prior accidents, don’t want the case. The list of reasons to not represent someone with a brain injury could go on for two pages, but suffice it to say I have heard lawyers I respect give entire lectures devoted to all the reasons not to represent someone.

To a degree, such caution is a self preservation instinct, because the amount of money and time a plaintiff attorney invests in a case. When a plaintiff attorney chooses the wrong brain injury case, not only do they risk not making any fee for his or her time (almost all of these cases are handled on a contingent fee basis) but the lawyer may lose tens of thousands of dollars in out-of-pocket costs, to get the case ready for trial. I confess to turning down cases that other lawyers are willing to take a chance on. My firm and our colleagues only have so much time and resources. Sometimes, there are just too many negatives to justify going forward.

Yet while I turn down many cases, I am turning down fewer cases because of concerns about a pre-morbid mental health issue. While such issues make a case more difficult, they also make it more significant. Concussion, quite simply, does not disable most people. But it does disable a significant minority, probably in the neighborhood of 15%. Pre-injury psychological problems might make a case more complicated, but to me, they also make it more credible. The “perfect plaintiff”, is considerably less likely to be the person disabled by a seemingly routine concussion. That person would likely have a steady improvement over the first few days after the concussion, and like young jocks, be back in the game a week or two later.

Yes, I suppose there are cases where a remarkable individual – with no clouds on their medical or emotional history – suffers a moderate to severe brain injury and becomes clearly disabled. But if you represent only the “perfect plaintiff” you will turn down far too many people whose cases merit representation. While I choose my challenges carefully, the challenge of connecting pre-morbid vulnerabilities to actual resulting pathology and disability, is one I am shying away from less and less.

A Contribution to the Study of Shell Shock

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Posted on 18th June 2008 by Gordon Johnson in Uncategorized

Charles Myers’ seminal 1915 Lancet paper “A Contribution to the Study of Shell Shock” published in the British Medical Journal, the Lancet, on February 13, 1915 is below. To read any of these page, click on the image and it will read in a new window that is in a resolution that can be read.


Attorney Gordon Johnson
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Return of the Soldier, Commentary on the Rebecca West Novel

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Posted on 8th June 2008 by Gordon Johnson in Uncategorized

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Editor’s Note: I owe my discovery of the issues with respect to Shell Shock in the World War I literature to a good friend, Kara Harton. Kara wrote the following paper while attending Yale.


Shell Shock in Rebecca West’s Return of the Soldier
History 255 – The Experience of War in the Twentieth Century
Professor Bruno Cabanes
7 March 2007


Kara S. Harton

Shell Shock in Rebecca West’s Return of the Soldier
Set in 1916 at the Baldry family estate outside London, Return of the Soldier is the fictional story of Chris Baldry, a veteran of The Great War, who is discharged from the military due to shell shock-induced amnesia. His only memories are expressed as flashbacks of his pre-war life. After leaving the front, Chris returns home to Kitty, Jenny, and Margaret, the most important people in his life. Kitty, Chris’s wife, is an extremely poised, genteel English woman who is perfectly content maintaining the household. During the war, she remains confident that as soon as her husband returns home, they will resume their comfortable, pre-war lifestyle. Kitty’s life seems to be dictated by her social obligations, and she cannot accept anything which intrudes upon her perfectly cultivated, socially-acceptable world. Chris’s cousin Jenny is Kitty’s companion at Baldry Court during the war. Jenny is probably the character with whom it is easiest for the reader to identify, and as the narrator of the story, Jenny has the most influence over the readers’ perception of the other characters’ actions. Her façade – that of a well-mannered English woman – is quite similar to Kitty’s, but she seems much more understanding of Chris’s difficult situation.

Kitty and Jenny become acquainted with the other major character, Margaret Grey, during the course of the novel. Margaret is Chris’s old flame and, apparently, his first love. Oddly, Chris’s amnesia seems to have erased all of his memories, with the exception of the recollections of his relationship with Margaret, which occurred many years before. Margaret is of a lower class than the Baldry family, which adds a significant amount of tension to her interaction with the Baldrys. These three women are linked by their connection to and concern for Chris, and together, they must decide how to handle his enigmatic condition and come to terms with the way that his role in their lives has changed as a result.

Clearly, Return of the Soldier is not the typical “war novel.” There are no battles or images of warfare. In fact, the reader never sees the enemy. However, this novel still makes a provocative statement about World War One. Although the novel takes place on an English estate, far from the trenches of the Western Front, it offers a vivid portrayal of the war by illustrating one of its most important themes: the phenomenon of shell shock. West’s portrayal of shellshock in The Return of the Soldier highlights two key aspects of the condition: the medical and psychological explanations of the phenomenon, and the way that it forced British society to adjust.

The idea of shell shock is introduced in the novel before the main character actually appears. Kitty and Jenny are at Baldry Court, nostalgically reminiscing about the past, when Margaret arrives with news about Chris. She informs the women that Chris has experienced some sort of misfortune on the battlefield but is somewhat hesitant to reveal the details. When Kitty asks if he is wounded, Margaret responds with, “Yes . . . he’s wounded,” but soon corrects herself by explaining, “I don’t know how to put it, he’s not exactly wounded. A shell burst –.” “Concussion?” Kitty asks. Margaret clarifies that Chris has shell shock and is “not dangerously ill.” After her explanation, the women share an awkward silence; they are obviously uncomfortable, and it is clear that neither of them is certain of the implications of the news. (23)

This scene is extremely important because it introduces the idea of shell shock in the novel and serves as an important illustration of the uncertainty with which shell shock was discussed during and after the War. Just as the characters of Return of the Soldier are not quite sure how to classify this condition, most Europeans, including medical and psychological experts, were unsure of the exact cause and characteristics of shell shock. There was an extensive debate about whether the nature of the condition was physical or mental, and whether it could legitimately be classified as a “wound.” The inability to pinpoint Chris’s injury in the previous passage is an excellent illustration of this uncertainty. It is not a tangible injury, and no one can decide exactly how to refer to it. The women seem uncomfortable using the term “shell shock,” which shows their lack of familiarity and understanding of the condition.

This theme reappears numerous times throughout the novel. Kitty has an extremely difficult time accepting the authenticity of Chris’s amnesia. After his first dinner back at Baldry, Kitty becomes extremely upset about Chris’s behavior. Jenny attempts to console her by reminding her that she is “taking things all the wrong way,” and that his conduct is due to the fact that “Chris is ill.” However, Kitty insists that Chris is merely “a man like other men,” and asserts that, “This is all blind. . . He’s pretending.” (60) Instead of accepting that Chris suffers from a condition which is beyond her comprehension, Kitty would prefer to assume that he feigning amnesia in order to continue an extramarital affair with Margaret. Kitty’s refusal to accept the authenticity of Chris’s wound reflects society’s hesitation to accept shell shock as a legitimate injury.

In order for the condition to seem more valid, the stigma of psychological disorder had to be surmounted – a significant obstacle to a society in which the mentally ill were considered outsiders. Therefore, it could not be attributed to fear or nervous breakdown due to the atrocities of war; medical experts had to assert that shell shock was caused by proximity to an exploding shell. This explanation was offered by British physician Charles S. Meyers in 1914 when he first observed shell shock in France, and it was accepted for the duration of the war. (Mosse 103) According to Colonel J.F.C. Fuller, “the sapping of morale by sudden or prolonged fear subordinates a man’s power of will to his instinct of self-preservation and ultimately reduces him to a state in which he cannot control his emotions.” (103) German medical experts agreed and tended to associate “war neurosis” with lack of will rather than concrete trauma, but this explanation was unacceptable to British society at the time. (103) In order to be considered a valid war wound, shell shock had to be attributed to something tangible.

In addition to providing an excellent illustration of the uncertainty with which people approached shell shock, Return of the Soldier also contains numerous examples of the way that this condition disrupted society during and after the War. After Chris’s return, Kitty wants their lives to return to normalcy because as members of the upper echelon of society, they both have important responsibilities and obligations to fulfill. Jay Winter, a notable World War One historian, calls shell shock “a code to describe the shock of the war to the ruling elite, whose sons and apprentices, being groomed for war, were slaughtered in France and Flanders.” (Winter 10)

In this war, unlike other wars, the higher a man’s socioeconomic status, the greater his chances of becoming a casualty. This fact was very real to the social elites, and the phenomenon of shell shock provided “a symbol . . . of the effect of the war on both their own social formation and British society as a whole, which many of them took to be interchangeable.” (10) Officers were expected to be shielded from the danger of emotional breakdown by their superior competence and judgment, their position of responsibility, and the need to set an example for their inferiors. The awareness that officers were more likely to become casualties (both due to shell shock and more conventional injuries) was an uncomfortable reality for society.

The way that shell shock is presented in Return of the Soldier also highlights another important aspect of the condition: the way that it forced reconsideration of accepted stereotypes, particularly those concerning accepted gender roles. Mosse points out the rigidity with which masculinity and manhood were defined at the time; in most of the Western world, there was an undisputed understanding about the function that a man was expected to fulfill as “exemplar and guardian of the society’s values and coherence in an age of accelerated change.” (Mosse 101) He should be dispassionate, controlled, and moderate, both physically and psychologically. Mosse points out that men whose behavior placed them outside the bounds of ideal manhood were relegated to the ranks of “outsiders, on the margins of established society.” (102) These were men who were nervous or unstable; criminals, ethnic minorities, and homosexuals were often placed in this undesirable category. Nervous disorders, often referred to as “hysteria,” were typically considered women’s afflictions, but now, society had to decide what to do with men who were exhibiting the same symptoms.

This theme is not presented explicitly in Return of the Soldier, but it is certainly implied. The Chris that Kitty knows is strong, organized, masculine, and stoic. He is a perfect example of the ideal upper-class British man: responsible, balanced, hard-working, and self-controlled. When he returns to Baldry Court, he is extremely polite, which shows that he still understands the importance of etiquette. Yet much of his conduct is now governed by emotion rather than logic. Instead of behaving rationally and dutifully taking his place in society, he has become emotional, compulsive, and needy. It is suggested that before the war, Chris is not entirely satisfied with his life, especially after the death of his son Oliver, but his emotional expression is stifled by his obligation to manage a comfortable, efficient manor. When he is affected by amnesia, he reverts to a time when he was less refined – before his manhood had fully developed. When he returns to Baldry Court, Kitty and Jenny are taken aback by his passion and depth of emotion; it seems as though they have never seen him express such strong feelings. His “wound” has forced him to revert back to the behavior of his boyhood. Many Europeans of this era, particularly those in the middle and upper classes, considered war “a true test of manliness,” and after World War One, society was forced to decide how to cope when many of its men were unable to “pass” this test. Mosse explains that this was extremely traumatic to British society because “shattered nerves and lack of will-power were the enemies of a settled society and because men so afflicted were thought to be effeminate, [which] endangered the clear distinction between genders which was generally regarded as an essential cement of society.” (103)

Although West’s Return of the Soldier is entirely fictional, it has an immeasurable degree of historical relevance, particularly in its depiction of shell shock. Even though West never presents scenes of battle and destruction, this book still presents an accurate picture of the disastrous effects of World War One, both in the military and the home front. This novel presents shell shock as a legitimate war injury without overlooking the uncertainty of its nature and diagnosis. Because the events in the novel occur within a few days, West’s focus is not the narrative, but the interaction of its characters. Therefore, it is crucial to analyze their relationships, and not the characters themselves. A careful analysis of these relationships reveals a great deal about the nature of shell shock, and the way that it affected soldiers, their families, and wartime society as a whole.

©2007, Kara S. Harton

The Brain – the Precious Egg Inside the Carton of the Skull

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Posted on 8th June 2008 by Gordon Johnson in Uncategorized


Brain Injury and Clubs

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Posted on 8th June 2008 by Gordon Johnson in Uncategorized

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Editor’s Note: On http://tbilaw.blogspot.com I am writing a very serious work on the Nightmare of Brain Injury. I thought these pics would be relevant and illustrative, but they disrupted the flow of what I was trying to say there, so I am posting them here.







And thank you Cindy for the images.






Footnotes to the Nightmare of War Time Brain Injury

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Posted on 8th June 2008 by Gordon Johnson in Uncategorized

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Editor’s Note: This week, I am engaged in an intense writing project on my other brain injury blog: http://tbilaw.blogspot.com on the Nightmare of Wartime Brain Injury. There are some footnotes and funnies that don’t really work as a direct part of that project, so I am posting them here. Later in the week, I will comment on Henry VIII’s brain injury here as it is quite pertinent to that topic as well. http://tbilaw.blogspot.com/2008/06/loss-of-smell-was-missed-sign-of-brain.html

Henry the VIII and Brain Injury Behavior Changes

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Posted on 5th June 2008 by Gordon Johnson in Uncategorized

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From my co-author of https://waiting.com:

For those who watch the Showtime series, The Tudors, this season brought a lot of changes in the life of King Henry VIII. Although not happy with his new queen’s inability to deliver an heir, Anne’s prospects got a lot worse after the king suffered a fall from a horse in a jousting accident.

Some historians conjecture that Henry was severely affected by a leg injury he suffered at the time, but others further hypothesize that Henry, who is reported to have been unconscious for several hours, may have suffered a brain injury which led to the drastic change of behavior he exhibited towards Anne Boleyn after his fall.

When one considers the sort of activities the king engaged in prior to his fall -jousting tournaments and break neck hunting expeditions – it might be expected that the king most likely had a history of “knocks to the head”. Regardless, his perception of his wife, Anne, certainly became very distorted and in keeping with many of the symptoms of a brain injury.

Very suddenly, he became convinced that the woman he had risked a kingdom for, had seduced him with witchcraft and he became very susceptible to the reports of wrongdoings from her enemies at court. Eventually this led to several trials for infidelity and treason. Five men were accused on unconvincing evidence and sentenced to death, including her own brother, George Boleyn.

The signs are in the change of behavior in the king. When he had divorced Catherine of Aragon, although she was banished from the court, she was treated with some sort of compassion and her daughter Mary was given safe refuge. Not so, with Anne Boleyn. She was granted no mercy and the king was impatient for her execution and announced his betrothal to Jane Seymour 24 hours later, believing that he had a sign during his period of unconsciousness that she was his salvation.

It was a somewhat chilling reminder to me of the type of fill in memory that exists after a major brain injury, in which facts are easily distorted or replaced because the survivor must make sense out of the gaps which occur. I can easily imagine Thomas Cromwell’s whisperings to the king of Anne’s shortcomings suddenly becoming accepted as truth in an attempt by Henry to replace his own confusion.

Many of Henry’s behavioral changes are in keeping with the theory that he suffered a brain injury. Although his leg injury may have complicated his activities, his sudden disinterest in exercise and former activities certainly would help explain many of the medical symptoms he suffered from that point on, foremost being the obesity he suffered until the end of his life.

The reason I found this historical incident so intriguing is because it related to my own experience with a severe brain injury survivor in which confabulation played a key role. The survivor would fill in gaps with whatever information the people he had contact with gave him, true or false, he had no ability to discern reality himself. Thus, in a situation with hostile family members, this led to some very distorted views of his situation, despite proof to the contrary.

Not only did he fill in holes in his memory with random information, whatever information he was given was exaggerated with every telling. Given the facts of his accident, each time he repeated what he believed to have happened, it became more and more fantastic. This point struck me on The Tudors when Henry breaks down and cries that Anne had slept with hundreds of men when proof of her infidelity was sketchy at best.

It is no doubt, chilling, to realize that the 72,000 executions King Henry VIII ordered in his lifetime may have been perpetuated by an undiagnosed brain injury.

Regardless of the actual historical facts surrounding Henry’s injuries, the depiction that the writers for The Tudors chose to encompass was very true to the nature of brain injury. Henry had other injuries that the doctors were more concerned with and his head injury would have gone untreated. He was unable to discern that those around him had their own personal political agendas and became vulnerable to a desperation to fill in missing gaps in his own memory of the facts. He exaggerated fantastic gossip to mammoth proportions. His former grief and compassion for his enemies turned to an unemotional detachment towards those around him. And a former inclination for personal gratification escalated to a point that would make him an infamous character in history.

One can dispute the argument, but the change of person exhibited by Henry following his accident leaves many questions as to what damage actually occurred in his jousting accident.

Rebecca Martin
One very believable theory as to why Henry VIII had such a dramatic change in weight was that he lost his sense of smell, which can dramatically change a person’s eating habits. See a related blog at http://tbilaw.blogspot.com/2008/06/loss-of-smell-was-missed-sign-of-brain.html

Bridge Back from Brain Injury Despair

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Posted on 23rd May 2008 by Gordon Johnson in Uncategorized

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In 1997, Becca Martin and I created https://waiting.com. It is certainly the most important thing I have done in my career. One of the most important contributions of that page was that its Bridge from Despair was the first internet collection of stories from those who had suffered the tragedy of brain injury on the internet. The internet was young then, and people were just beginning to discover the value of the connection it creates.

Yesterday I got this story, and I thought this blog would be a good place to tell this story, a story we will probably add to https://waiting.com/waitingbridge.html

Dear Mr. Johnson,

10 months ago I had a serious car accident and was in coma for 1 week. I had 3 brain-bleedings and 2 brain contusions. While I was in the coma my parents were with me and spoke to me. My father is German and we live in Germany, my mother is English. And I think she spoke a lot in English with me, because since the coma I often think in English. I am very, very grateful to them that they were by my side. This is the most important thing in the world. The love of your parents. You feel it and you know that they are with you, although you are in the coma. To give this deep love is the most comforting and the most beautiful thig you can do to the person you love. And to know that there are people who don`t look at you like doctors look at their disabled patients is comforting. I want to thank you very much for your work. You really help the people. If you come back, sort of return to the world, it isn`t easy at all to talk to people about this time. Mostly they don`t understand, how could they?

I had just one possibility to get to know another person with a near death experience. And this was so different from mine. I don`t remember anything concerning the accident. And I even lost months of memory before the accident, but I can recall my near death experience. I saw multiple universes in higher dimensions. I`m sorry, I don`t know why I am telling you this. Maybe because I don`t know anyone I could talk to about this. Since I am reading books about the quantum-physical possibility of multiverses I feel a bit reliefed, because I know now, that there`s a scientific explanation for what I saw. But I know that every physicist I`d talk to about this topic would bring me to the booby hatch.
I know, that I was very lucky, that I can think again.

The neurologist couldn`t explain my improvement. Although I have problems remembering things, I want to finish the exams on the university in Munich. It might sound queer, but after I have been hating the woman who ran into me far too fast (and sometimes I still hate her and try not to do it) I thought that following Kant`s categorial imperative and wishing a peaceful earth for everyone, I hope that I can release the hate. And I am grateful that I was able to go through this near death experience.

You give the people hope, information and the feeling that one can talk about the accident. Thank you!

Lisa
alchwarizmi@web.de
Thank you Lisa for allowing me to post your story on this blog.

UW Helicopter Crash Kills Three Near LaCrosse, Wisconsin

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Posted on 12th May 2008 by Gordon Johnson in Uncategorized

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When we first created https://waiting.com in 1997, we were working with a trauma nurse from Froedtert Hospital in Milwaukee, Wisconsin in organizing and fact checking the page. At the time, I had asked her what the biggest break through which had occurred over the years in saving lives for severe brain injury. I had expected her to say the CT Scan which allows doctors to see the killer of increased intracranial pressure before it kills, or some other imaging or pressure related device. She surprised me with her answer: Flight for Life helicopters.

It was her belief that it was the Flight for Life Helicopters that rushed severely brain injured persons to the regional trauma center where she worked, that enabled all of the rest of modern medical science to intervene before death, or before more brain damage occurred. As being old enough to have watched every episode of MASH, it was easy for me to grasp the importance of what she was saying.

Ironically, I didn’t appreciate until I started doing death and brain injury cases from the aviation liability end, just how much those doctors and nurses who staffed those Flight for Life helicopters, risked their life to save the brain injured. Saturday night, three more died in this valiant cause in a helicopter crash near LaCrosse, Wisconsin. Dead are Dr. Darren Bean, nurse Mark Coyne, both of University of Wisconsin Hospitals and the helicopter pilot, Steve Lipperer. For more details, click here.

Today, all of those in the brain injury community should have a day of remembrance for the brave medical personnel and pilots who risk their life to save so many from death and further disability. Each time you see a Flight for Life, say a salute or a prayer for those who serve on board. Perhaps we can all plant a tree or a flower in honor.

Brain Injury Association Urges Support for Wounded Warriors Act

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Posted on 8th May 2008 by Gordon Johnson in Uncategorized

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From the Brain Injury Association of Wisconsin:

Dear Friends:

Take Action!
Urge Your Senator to Cosponsor The Caring for Wounded Warriors Act of 2008
BIAA (Brain Injury Association of America) has endorsed The Caring for Wounded Warriors Act of 2008 (S. 2921), legislation introduced on Monday, April 28 by Senator Hillary Rodham Clinton which would increase support for family caregivers of servicemembers with TBI. Several recommendations made by BIAA during the legislative drafting process were incorporated into the bill.

BIAA encourages you to urge your Senator to sign on as a cosponsor of this important legislation.

The bill would require two pilot programs to be implemented through the Department of Veterans Affairs, improving the resources available to those caring for returning service members with TBI.

The first pilot program, which would provide for training, certification, and compensation for family caregiver personal attendants for veterans and members of the Armed Forces with TBI, is very similar to a provision in last year’s Heroes At Home Act of 2007, which BIAA also strongly endorsed.

The second pilot program would leverage existing partnerships between Veterans Affairs facilities and the nation’s premier universities, training graduate students to provide respite care for families caring for wounded warriors suffering from TBI.
To urge your Senator to become a cosponsor of S. 2921, click on the ‘Take Action’ link in the upper right corner of this email.

The Brain Injury Association of Wisconsin and the Brain Injury Association of America support this legislation.

If you have trouble with the “Take Action” button at the top, please let BIAW know. To “Take Action” visit www.biausa.org. Click on Policy & Legislation, then Legislative Action Center, and then Take Action.

Sincerely yours,

Pat David
Brain Injury Association of WI
For those not in Wisconsin, your Senators and Congressmen can be found at http://www.senate.gov/ and http://www.house.gov/