Brain Injury Radio: I Fought the Law, but They Didn’t Win on Recovery Now with Kim Justus!
Kim: Tonight’s featured guest is brain injury attorney Eric Ratinoff, who has a long list of accomplishments and awards that he has accrued over his career. But since we’re a little short on time tonight I want to jump right into the interview, and then after he goes I’ll tell you more about the numerous accomplishments and awards that he has received. Eric are you there?
Eric: Yes, can you hear me?
Kim: Yes. Now, one of the reasons I wanted to have you on the show tonight is because something that we really pound home around here, because we’ve heard what happens when we don’t do this, when it comes to an attorney, or a psychologist, or a doctor, whatever the professional may be, but tonight we’re talking attorneys… if you’ve had a brain injury, it’s an area of medicine and condition that not a lot is known about. I make a joke that it only took me 17 years writing a book and becoming a radio host to meet other brain injury survivors, and I’ve learned more about brain injury in the last 3 years from other survivors than I did from the medical community or any other outlet. And of course in 1995 there wasn’t a computer on every desk, so it was a very polarizing and isolating experience. So one of the things we tell people is that if you’re going to hire an attorney, don’t talk to the neighbor over the back yard fence or get a referral from Uncle Clem, but you want to find professionals who have actually worked in the area of brain injury. Who have some familiarity with that which is so unfamiliar with so much of the population, that if you want to have a chance of winning you should probably hire someone who’s been up to bat more than once. And so through some referrals and some research I found you and I saw some of those things that I read earlier, and so I just want to talk to you a little bit tonight about reinforcing what I just said and telling people why it is a good idea to have an attorney who’s worked in the field of brain injury, and maybe just start by telling us about your background and why you chose to make brain injuries one of your specialties.
Eric: Sure, and it’s a great topic. There are a lot of really good lawyers out there – lawyers get a bad rap, people love to joke about lawyers, but the truth is a lot of people out there are representing ordinary men and women who get hurt in their everyday lives and are battling injuries, and there are a lot of lawyers are doing really great work out there. But when it comes to a brain injury case, most people out there are not equipped to deal with it. And they’re not equipped to deal with it because they haven’t come across it or they don’t understand the issues. Brain injured clients may have difficulty communicating what’s going on with them to their doctors, or they have difficulty understanding. And when a lawyer’s engaged with clients like that who’ve experienced a brain injury, they have problems with memory and concentration and executive function, all the different things we see over and over again, it can be a very frustrating process if as the lawyer you don’t understand what’s going on. That’s why it’s important if you as a caregiver have a friend or family member with a brain injury and they’re going through the process of looking for a lawyer it really is important to try and connect with an attorney who really has that experience. And there are a lot of small communities throughout the country where there may not be a tremendous amount of lawyers serving the population and who may not have that experience. So in that case ideally you want to find a caregiver, an occupational therapist, someone who’s involved with the patient and is willing to be an advocate and bridge the gap in understanding. Anyone who’s experienced a brain injury , that patient gap, the ability to have the presence of mind to confront the issues that occur in terms of communication, collaboration and obtaining the necessary treatment and care and being able to understand what’s going on in the person’s case and the person’s life, it’s really important.
Kim: It is. And what made you go down this road?
Eric: I started doing this work 22 years ago. I was raised by a father who was a neurologist, so I was always surrounded by literature related to the brain and my dad openly discussed with us the brain and psychology and what he did in his practice. He loved neurology, so growing up I had the benefit of that. And then as a young lawyer I had a client who was in a not even a very big auto accident, but it was the very early generation of airbags that hit her in the face full force and she had a TBI from that. And this was probably 20-21 years ago, and at that time lawyers who were handling brain injury cases and were focusing on the issues going on were few and far between. And the neuro psychologists who were really working on this in a lot of ways people weren’t paying attention to. So there was just not a lot of information out there. But she was just a wonderful woman and I tried to learn and understand everything I possibly could about what was going on with her. And part of the problem I ran into was what I know your listeners who have had a brain injury and their family or caregivers run into is that there’s a whole host of medical professionals even today that just don’t understand the issues. And so what happens is, when people don’t fit into these neat little diagnostic boxes, they tend to get disregarded. And so this particular client, she was disregarded as somebody who was just having some type of psychological issues, and they said she was just going through menopause, and they came up with this nonsense because they just didn’t understand what was truly going on. So it was through a lot of hard work and a lot of understanding and education that we were able to discover her story, deal with her true illness, and tell her story in a way which we were able to obtain for her some measure of justice.
Kim: You know when you bring that up, that’s something that touches on a sore spot for me. That’s really what happened to me and a lot of others out there is that after the initial pain pill protocol didn’t work, and they tried various therapies and what they know to do in the traditional medical model, then suddenly it becomes a mental case. And you just brought it up, it happened with me, I’ve been a host here for over 3 years and I’ve heard it over and over and over again. And I have a joke here, because you have to have some kind of sense of humor in here somewhere or you go crazy, is that if you weren’t half cracked to start with, by the time you go through the system and don’t get validated or understood or the help that you’re so desperately seeking, that by the time you do end up on the shrink couch, then you kind of need to be there a little bit. But that wasn’t the origin of what started the ball rolling in the first place. That doesn’t seem to get dealt with. It gets the psychological label rather than the physical label that it deserves because of the lack of understanding. Do you get a lot of cases like that?
Eric: Oh absolutely! And one of the things that ends up being really unfair is that as a population, over time we’ve grown far more comfortable with seeking help for our mental health issues. And there’s a lot of mental health care that people are obtaining now in their everyday lives that they didn’t used to, and there are drugs that are prescribed for people experiencing anxiety or depression, whether those drugs are being diagnosed properly or not, or whether those medications are administered properly or not, but what ends up happening is that you end up having a background level of situational depression – where someone loses his job that he’s had for several years or the economy’s bad and their house is being foreclosed or his wife leaves him or whatever is happening and they experience symptoms of depression and then you have that in their background history and lo and behold, something comes along and they get a trauma to the head and they have brief loss of consciousness and an MRI or CT scan that shows no inter cranial bleeding. But they start to develop these symptoms. And what happens is in most cases if they don’t quickly recover, the physicians, even if they appropriately initially diagnosed him with a concussion and thereafter some post concussive symptoms, there tends to be this sort of default that if they don’t improve within a certain amount of time they default back to “well the person’s depressed” or “the person has anxiety.” And there’s a failure in the medical community to adequately address the true situation of what’s really going on in the lingering TBI and its affect on the executive functions, memory, fatigue, and it’s a trigger for the secondary depression, as a result of the TBI. But it get’s misdiagnosed as primary depression or related to prior depression, and it’s really unfortunate because when the clients are properly tested with a really quality neuro psychologist who knows what he or she is doing, what the testing shows time and again is that there is underlying organic functional limitations that show up in the testing, and they may also show up as depression, but the depression is shown to be secondary to the brain injury, not the true cause of what is leading to the symptoms that are affecting the quality of life. And what that really takes is a process that has started but has a long way to go, is to educate the medical community about what is a brain injury, how do you diagnose it, how do you assess it, and how do you deal with it
Kim: Interesting. What about medical malpractice? In my case I had a ruptured brain aneurysm and I had a doctor who had known me for 20 years, knew I wasn’t a hypochondriac, and he was at the emergency room when I showed up with this rupture in my brain. He diagnosed me with a spasm in my neck and sent me home with pain pills. And by the grace of God I went home to my father’s house and my family wanted me to stay with them rather than go home by myself, because if I had gone home and stayed by myself I probably would have died. I was 35 at the peak of health, peak of my career and my life, and my family thought it was rather odd, so they made me stay with them until after the pain medication kicked in. It took until the next day when I couldn’t talk and slid into a coma for five days. They took me back in and had a CAT scan that showed a brain aneurysm. So for me, I am lucky that things worked out this way for me, but I’m going to take a leap here that there might be a lot of misdiagnosis out there when it comes to brain injury. And one other thing I heard is that with car and motorcycle accidents – say the person gets in an accident an they have broken ribs, a broken leg and other injuries. Someone said that the doctors deal with the obvious things first. They deal with the broken leg, and aside from shining a light in your eyes, they don’t go looking for something that might be lurking underneath the obvious.
Eric: Oh yeah, and it’s more than that. We’re just now getting to a recognition when it comes to brain injury it’s a relatively recent phenomenon this understanding that early diagnosis and intervention can have a profound affect on outcomes. And that’s what the statistics are showing. And historically, if you talk about the last 20-30 years, there was a belief that if someone sustained a brain injury – even assuming they were diagnosed because in most times they weren’t – there was this mistaken belief that once the brain was injured there was no recovery. But now what most of the research is showing is that early intervention and treatment can make a world of difference. And even if you can not repair the brain, the brain has this immense ability to repair the manner in which its functions, and there our brains do a terrific job, not always, but it often occurs that the brain reconnects the pathways in a manner that allows people to gain function that was otherwise lost. And as we go forward we’re going to understand that a lot better. But to get back to your question really, we see the medical mistakes time and again where they do exactly what you said. And it reminds me of a case I just started looking at this week of a gentleman who was in an accident, had major trauma, fractures to the vertebrae in his neck and upper back, and had fractured multiple bones in his face. And they took him into surgery to stabilize the neck fractures and to fuse him at a couple of levels so that he wouldn’t have a serious spinal cord injury, and he was intubated with a breathing tube. Well that breathing tube was providing the architecture for his airways because the trauma to his face, the fractures to his sinuses were such that without the breathing tube the structure would collapse and close off his airways. Well they went forward after stabilizing the neck and after a day and a half they removed the breathing tube and then over the next 5-6 hours his airways collapsed and his oxygen was cut off and as a result he now has a fairly serious anoxic brain injury because his airways were cut off. He went into cardiac arrest and they had to code him, and they bring him to and establish a new airway but by then the damage had been done. That’s exactly the kind of scenario that you were talking about where there was a big focus on the obvious issue and then there was a failure to anticipate and give credence to the less obvious issues, but the ones that are equally as important and damaging. And we see it very often in the medical situation.
Kim: Hand in hand with that is our over medicated society and the organic brain syndrome that we get, and you may use different terminology, but I describe it as that because the brain changing event and what we carry with us for the rest of our lives is something else. And so I’ve chosen to call it an organic brain syndrome. But since pills seem to be a first line of defense I’ll make another leap and say that even if we are very careful as survivors to write down every medication we take with the dose, give it to every doctor we see and the pharmacy, but with so many pills out there, they’re going to treat us for seizures, depression, anxiety… I’m assuming that some of the malpractice gets into the drug interactions.
Eric: I do a lot of medical malpractice work and the largest area of medical malpractice in the broadest sense, sort of the hospital based errors are huge, but the areas related to the prescription and dispensation of drugs is by percentage one of the largest areas of medical malpractice. There are numerous drug interactions that are not accounted for by the prescribing physicians, or as is often the case you’ll have one physician prescribing one set of medication – for example you’re starting to take a medication. And your body essentially clears medication through a couple of ways – it’ll clear it through your liver or through your kidneys. So the problem is if you have someone who’s taking a drug that slows down the creatinine clearance of the kidneys, it slows down the rate at which the kidney will filter urine and dispose of those wastes that are filtered out by the kidneys. And so if your kidney is operating more slowly than normal, but you’re taking a drug that gets cleared through the kidney, what ends up happening is you slowly overdose on that medication. And there are many medications that even if they don’t have a direct affect on the brain, if you overdose on them will cause you to go into cardiac arrest. And cardiac is a major cause of brain injury because your heart stops beating and the oxygen doesn’t get to the brain. And there’s a lot of talk about depression after cardiac arrest, you hear it over and over again that people suffer serious depression after a heart attack, and it’s one of my pet peeves because almost nobody’s doing any neuro psychological testing on these people. And the truth is that a lot of people who have experienced a significant cardiac arrest who are exhibiting symptoms of depression are in truth exhibiting symptoms of brain injury as a result of the anoxic affect of the cardiac arrest. And we see that over and over again in cases that come to us that someone realizes that there’s been a drug interaction or an overdose of the medication because the physicians or hospital failed to adequately track the manner in which kidney was clearing the drug, and then we see the after effect not only in the heart attack but in the brain injury itself.
Kim: Wow. Obviously that was something I knew nothing about. I knew that doctors are not pharmacologists and you get into dangerous territory when they listen to drug reps. All of a sudden every other one of us are on the “drug dujour” that haven’t been adequately tested. And one of the problems I’ve found is also secondary conditions. This is such a huge field with brain injury because a lot of the medications I got treated with in the beginning caused secondary conditions, like gastro conditions and gave me problems I didn’t have before, while not fixing whatever symptom of my brain injury it was prescribed for. The drug didn’t treat it, but it gave me another issue to deal with. So I think that whole area of pharmacology is one to be watched. We really need to take a closer look at what the first line of defense is right now.
Eric: And there’s one important thing for those of your listeners who are care providers or significant others to someone with a brain injury, when a lot of these drugs are prescribed. Especially drugs that have a relative risk of overdose that results in significant ill affects, and there are a lot of drugs out there like that. If the drug is being cleared via urine, through the kidneys, or whether it’s being cleared through the filtration of the blood through the liver, if people are on these drugs chronically, and a lot of these drugs people are on them for months or years, the physicians should be ordering routine urine analysis and/or routine blood analysis. And what they should be looking for are changes in the function of the liver or the kidney. And if those things the patient needs to think about if these changes start to appear is number one, what drug am I on that could be causing this? And the second thing is what drug am I on that as a result of the changes in function of my liver or kidneys, is what drug could now be resulting in a potential overdose? For example, there’s a very high incidence of people with bipolar disorder on lithium. And lithium has a very narrow therapeutic range, so you’re either too low or too high, so you really have to manage the lithium level in the bloodstream. And if the lithium level goes too high it can have catastrophic neurological affects and you can end up with a form of Parkinson’s type syndrome. And I’ve seen again and again cases where there will be, for example, there’s a cardiac class of medications to deal with the hypertension that reduces the ability of the kidney to clear the lithium, and then the lithium slowly builds up. And you’ve got the psychiatrist prescribing the lithium and monitoring that, and you’ve got the primary care doctor managing the prescription for the hypertension and they’re not talking and they’re not paying attention to what the other drug is doing and before you know it you have an overdose of lithium.
Kim: Wow. In the routine tests that you get during annual physicals and blood tests, would they see the kind of disfunction you’re talking about?
Eric: It really depends on the drug and the situation. Just to use lithium as an example, once again. When someone is on lithium, there’s not only the routine testing of the lithium level, but the problem is that the standard of care in testing the lithium level is that it’s tested at sort of a wide interval. So it could be a couple of months before you get tested again, which is all fine and well assuming your kidney function hasn’t changed. But you can imagine a situation where right before they test the lithium level the other doctor puts the patient on the drug for hypertension and there’s not enough time for it to affect kidney function, and then it’s another few months before they test the lithium level again and it may be that within 2-4 weeks the kidney function has declined rapidly and then you’ve got this long period of time before the blood is tested again. But one thing that I think is extremely important for everyone to have – everyone, but I think especially those with brain injury – that they should have a plastic embossed list of all their medications and the frequency that they take them on a daily basis, who’s prescribing them and where they’re dispensed. And every time they go to the doctor’s office they should always photocopy this sheet so that the doctors always have an updated record of what medications the patient is on.
Kim: Yes. Now, before we wrap it up, because I know you have an engagement to go to with your daughter, but everything we’ve discussed over the last 45 minutes tells me how important it is for legal representation to know something about brain injury because in this short time I’ve learned an incredible amount of information. It’s been really enlightening to have you on tonight, so I really appreciate you coming on and demonstrating in such a short time that what we keep telling our listeners is so very important. So I promise everyone out there that I’ll have Eric come back on when you can call in and ask questions, but I want to ask if you have any closing comments you’d like to make?
Eric: You know I just want to thank you so much for having me on the show, I really appreciate the opportunity and I think it’s wonderful what you’re doing to help the community here and around the world. I understand you have a worldwide listenership, and we can benefit so much from people from all walks of life and all experience levels in dealing with brain injury. In my 22 years of representing people who have been injured is that people with brain injury are absolutely among my favorite clients because they are overcoming an immense struggle in terms of being understood and understanding themselves and their place in the world. And the amazing heroic efforts they make to try to reconnect and reattain some normalcy in their lives. I’ve seen so many wonderful people – the care providers in their lives, their families and others who provide them guidance and so much love and help connecting them in the world in such a positive way, these people are my heroes. And really through the strength and power of their love and commitment, who have just done such wonderful things. So my hats off to all of your listeners who fall in those categories and I’d love to come back and speak to you and them anytime.