Post Concussion Syndrome, Closed Head Injury. Hearing loss. Settlement

by | Jul 3, 2024 | Firm News |

Creedon & Gill settled a motor vehicle accident case this week involving claims of post concussion syndrome, closed head injury, and traumatic hearing loss.

In litigation these terms are often mixed up, and because the injury cannot be seen or easily demonstrated by imaging studies, disagreements on the value of these kinds of injuries, or even whether they exist at all, frequently divide plaintiffs and insurance companies. 

A closed head injury is caused by a rapid forward or backward movement and shaking of the brain inside the bony skull that results in bruising and tearing of brain tissue and blood vessels. Closed head injuries are usually caused by car accidents, falls, and increasingly, in sports. Post-concussion syndrome is a condition that is typically associated with such a head injury. The term  traumatic brain injury “TBI’ finds its way into the mix too.  

In general terms, post-concussion syndrome,  is a medical problem that persists for a period of time after a head injury has occurred. Unconsciousness may result, but not always and may take weeks, months, or even years to heal. In some cases the damage is permanent. Symptoms typically include Headache, Dizziness, Sleep problems, Psychological symptoms such as depressed mood, irritability, and anxiety, cognitive problems involving memory, concentration, and thinking. In the case Creedon & Gill settled there was also a measure of traumatically induced hearing loss. 

What is the value of injuries like this? 

Perez v. Jackson Index No. 158814/2020, at *2007 (N.Y. Sup. Ct. 2022) appears to have the most comprehensive survey of awards made in post concussive / TBI scenarios. Perez involved an assault where the resultant injuries were described this way,

The plaintiff developed and continues to suffer from ringing in his left ear, he has slight pain in his neck, gets headaches approximately two to three times a week, and takes Tylenol every day for his pain. The plaintiff saw a dentist due to pain that he was experiencing on the right side of his jaw, especially when he tries fully to open his mouth. The plaintiff’s primary care physician, Camilo Uy, M.D., concluded that the plaintiff was experiencing insomnia, nightmares, dizzy spells, short term memory loss, and post-concussion syndrome.

In making a $735,000 award for pain and suffering (there were also awards for economic damages), the Court wrote;

The court concludes that the plaintiff is entitled to an award of $150,000.00 for past pain and suffering, from October 20, 2019 until the date of this decision, a period of approximately two years and 10 months Kennedy v City of New York, 2019 NYU LEXIS 4530 [Sup Ct, N.Y. County, Dec. 12, 2019] [award of $300,000.00 for past pain and suffering over a period of five years was reasonable where plaintiff sustained a mild traumatic brain injury, PTSD, as well as multiple bruises and burn marks on her back after use of excessive force by a police officer]; see also Popolizio v County of Schenectady, 62 A.D.3d 1181 [3d Dept 2009] [affirming $350,000 award for past pain and suffering over a period of eight years, where plaintiff’s car plunged head-on into a ditch, resulting in a traumatic brain injury as well as diminished cognitive function bordering on mild retardation, loss of enjoyment of life, and depression], Jackson v Mungo One, inc., 6 A.D.3d 236 [1st Dept 2004] [affirming $412,500 past-pain-and-suffering award over a period of at least four years to a seven-year-old who suffered a concussion, post-concussion syndrome, PTSD, and cognitive deficits resulting from being struck by a taxi cab]; Brewster v Prince Apts., Inc., 264 A.D.2d 611 [1st Dept 1999] [reversing judgment and setting aside $70,000 past pain and suffering award over a period of seven years as insufficient where plaintiff was brutally beaten outside her apartment and sustained injuries including severe pain in her neck, left shoulder, and left arm, recurring headaches, facial scarring, and PTSD characterized by nightmares, insomnia, panic, and anxiety]).

The court concludes that the plaintiff is entitled to an award of $485,000.00 for future pain and suffering, from the date of this decision until 19.4 years thereafter (see Jordonne v Ole Bar & Grill, Inc., 2016 U.S. Dist LEXIS 56943 [SD NY, Apr. 26, 2016] [recommending an award of $2,465,000 for future pain and suffering, based on a life expectancy of 49.3 years, for a plaintiff who was assaulted and sustained a brain injury, memory loss, jaw fracture, back pain, and headaches]; Henaghan v Algie, 2013 NY Slip Op 51838[U], 41 Misc.3d 1226[A] [County Ct, Suffolk County 2013] [awarding $525,000 in future pain and suffering, based on a life expectancy of 21 years, to a plaintiff who was struck in the head with a barbell and suffered a permanent, traumatic brain injury and short term memory loss]; Paek v City of New York, 28 A.D.3d 207 [1st Dept 2006] [reducing jury award for future pain and suffering to $3,000,000 over 40 years for a plaintiff who tripped over a metal spike, sustaining a severe brain injury that permanently affected her memory, concentration, and organizational ability]). Here, the plaintiff has a life expectancy of 19.4 years (see 1B NY PJI 3d at Appendix A [2022] [life expectancy tables]). Thus, in taking into account these examples of awards for future pain and suffering, the court concludes that an award of $485,000 for future pain and suffering over 19.4 years is warranted (see Jordonne v Ole Bar & Grill, Inc., 2016 U.S. Dist LEXIS 56943).