Sims Weymuller in Trial News -- Miracles Dwell in the Invisible: Ten Lessons in Traumatic Brain Injury

Firm News Brain Injury/Spinal Cord Injury
Mar 15, 2024

In an article authored for WSAJ’s March edition of Trial News, SGB attorney Sims Weymuller shares an impactful personal account of 10 lessons he’s learned about navigating traumatic brain injury, both as a serious personal injury trial lawyer and the father of a TBI survivor.

“As a trial lawyer who represents brain injury survivors, the empathy I have for my clients is deeply personal. It is sometimes painful. This article is an effort to share some of the lessons I have gained from this experience,” Sims writes.

Read more about Sims’ family’s experience and his insights into supporting clients impacted by TBI in the full article, originally published in the March 2024 issue of Trial News, and enclosed below. 

Miracles Dwell in the Invisible: Ten Lessons in Traumatic Brain Injury

By Sims Weymuller

1:37 PM on October 14, 2016, was the worst moment of my life.

In a park, by a creek, a 100-foot maple tree cracked and fell on our two boys and me. I grabbed them and ran, but not fast enough. Multiple trunks and enormous branches thundered down around us in stop-action terror. I tried to cover the boys, but not well enough. Our older son, Peter, was physically unharmed and he ran for help. Our younger son, Sam, suffered a catastrophic brain injury. The left side of his skull was crushed, and his femur was snapped. I stared into his bright, blood-smeared eyes, begging him to stay conscious until help arrived.

We later learned he also had a series of small hemorrhages throughout his brain. Reading an MRI that looks like Swiss cheese takes on new meaning when it is your own child’s. When he finally awoke from multiple surgeries, he could not use the right side of his body and he could not speak.

Sam was four and a half years old. He would have to re-learn how to walk, talk, eat, toilet, and draw.

He literally had to re-learn how to smile.

We were devastated, terrified, and eternally grateful. All three of us could have died, but here we are.

Today, we still face challenges, but every day we are witness to a walking, talking, math-loving, LEGO-building, fastball-throwing miracle.

As a trial lawyer who represents brain injury survivors, the empathy I have for my clients is deeply personal. It is sometimes painful. This article is an effort to share some of the lessons I have gained from this experience.

The emergency care Sam received was nothing short of exceptional. Watching the sequence of Seattle Fire > Medic One > Harborview Medical Center > Seattle Children’s Hospital in full synchronicity was mesmerizing. While Sam was inpatient, we were largely able to understand and monitor the care plan. In the subacute phase, however, the path was much less clear. Once Sam was discharged, the system balkanized into a rough grouping of isolated providers that at most failed to mesh and, at worst, conflicted. In short, (Lesson #1) it’s a jungle out there.

My spouse Stacy and I check just about every privilege box there is. We are both well-educated lawyers. I mean, I am a brain-injury, birth injury, medical malpractice lawyer, for goodness’ sakes. One would think I have a decent grasp on the medical system, and yet it was a maze. I can only imagine what it is like for someone with less exposure to medicine, who is learning the English language, or who is also fighting against racial or other systemic forces. The volume of practitioners alone is staggering. At one point or another, our son was being treated by one or all of the following practice groups:

  • Neurosurgery
  • Neurology
  • Trauma Surgery
  • Pediatric ICU and Critical Care Medicine
  • Pediatric Orthopedic Surgery
  • General Pediatrics
  • Neuroradiology
  • Neuropsychology
  • Pediatric Psychology
  • Neurodevelopmental
  • Rehabilitation Medicine
  • Occupational Therapy
  • Physical Therapy
  • Speech Therapy
  • Behavioral Therapy

We had regular, frequent appointments with all of them, and most started with the lead provider asking us, the parents, to summarize Sam’s progress and what the other providers were saying. Who was the captain of the ship? When you look around the poker table and don’t know who the sucker is… For profound and cross-sectional medical services like those required for a serious TBI, there is no overarching medical provider (or even group) who will run the show. Thus, (Lesson #2) it falls to the TBI survivor or caregivers to monitor, evaluate, and drive progress.

So, it fell to us. Or, more accurately, because I was still reeling from all of it, it fell to Stacy. It is hard to think straight when you are an immediate family member of a brain injury survivor and even harder when you’re their caregiver. Worry, fear, exhaustion, guilt, maybe some post-traumatic stress, probably some in security about being a good enough [parent, sibling, caregiver, fill in the blank] all plague the rational mind. It plagued mine, that’s for sure. Without Stacy’s steady hand on the tiller, I have no idea how Sam’s recovery would have gone.

But odds are, your TBI survivor client will not enjoy the luxury of a Stacy in charge. For TBI survivors, managing their own care can be exceedingly difficult (Lesson #3). Two common hallmarks of TBI are impaired executive function and short-term memory loss. So, the person who needs to manage their own highly complicated medical and rehabilitative care needs is, ironically, unable to do so. Consider the complexity of: making and confirming appointments; judiciously selecting which providers to see and when; managing your variable rehab schedule but also taking large quantities of brain rest; taking notes during appointments so you can remember everything (anything?) the provider said; finding the right school; working with the school to establish a plan (IEP, 504, or otherwise); and monitoring the school’s adherence to the plan. Then imagine all this in addition to keeping yourself fed and hydrated (when you’ve lost your sense of thirst and hunger, you can’t remember to eat, and when you do, eating is hard because the smell, taste, and feel of food is overwhelming) and your sleep architecture has been destroyed so you’re not getting restful sleep when you need it most.

To make things more challenging, as compared to other neurological issues, TBI, especially pediatric TBI, is uncommon. There are plentiful resources for ADHD and Autism and familiarity among medical providers and educators for these conditions. Not true for TBI. In many instances, (Lesson #4) the parent or caregiver must become the advocate and the expert/educator.

As trial lawyers, we often hesitate to involve ourselves in the medical care of our clients, and rightfully so; it only takes one entry of "phone call with patient’s lawyer regarding lawsuit" in the client’s record to dissuade us from connecting with providers unless absolutely necessary. But in many circumstances, (Lesson #5) we need to step in for our TBI clients. Ideally, we will coordinate a care planner and case manager to assist the client. These third-party participants can be expensive, but the expense is certainly justified by both the improvement in care and resulting improvement of the case.1 If a separate case manager is unavailable, then it may well become the attorney’s job to stick their nose in the middle of the medical care and sort out the mess.

Let me take a moment to give a shoutout to caregivers. We must all build our empathy muscle for the caregivers in our clients’ lives (Lesson #6). We need to cut them some slack, because it is one of the most difficult jobs out there. In addition to the above, the caregiver is effectively standing in for the TBI survivor’s executive function as well. Often the survivor does not know where they need to be or when or why, they don’t remember what to bring, and they are angry they are even there. The caregiver’s loved one has changed. Maybe temporarily, maybe not. Their patience, temper, memory, and core personality has likely shifted. Only time will tell what will come back and when. So the caregiver feels alienated and confused, in addition to being exhausted. The caregiver may have stepped away from their own life and career to manage the survivor’s recovery. In that sense, the caregiver may be dealing with the layers of the trauma of having their loved one severely injured, the complexity of the new world of TBI recovery they are navigating, and mourning the loss of the life and career they once enjoyed.

Given this complicated tableau, (Lesson #7) memorialize everything. There is little surprise that TBI survivors and TBI caregivers tend to become overwhelmed, to forget, to change course. We have the same conversations time and again. We make decisions, give reassurances, and then revisit both. So write down the discussions and send them to your client. Not merely as a CYA (though, by all means, do C your A), but also as a means of bringing your client to an understanding, not once, but multiple times. Also, as an editorial side note, while bullet points may be the enemy of PowerPoint communication (I do believe that), bullet points are your friend when it comes to communication with TBI survivors. Just the facts, ma’am. Challenge yourself to simplify your communications—cut to the chase.

TBI lawyers put the counseling back into counselor-at-law. I am sure you, like me, have regularly encouraged your clients to get therapy or counseling. After the accident that injured Sam upended our lives, we all needed therapy. But do we do it as a family? As a couple? As individuals? Well … yes, yes, and yes. Our close friend analogized it to Oprah giving out cars on her show: "and you get a therapist, and you get a therapist, and you get a therapist…." It is hard to find the right fit (there is a shortage of therapists in general, not to mention those who are willing to handle TBI), but it was all worth the while. Some of them for short periods, some for the long haul. I encourage all TBI survivors and their caregivers to get counseling early and often. In short, (Lesson #8) therapy can work wonders. And if I haven’t had enough "personal shares" in this article, here goes another: I wish I had a therapist well before Sam’s injury. We deal with trauma every day. Therapy helps. Plus, if nothing else, you get to talk about yourself for 50 minutes and the other person must listen attentively. A trial lawyer’s dream.

(Lesson #9) Don’t underestimate "social/emotional and behavioral" issues. They are often the manifestation of larger struggles beneath the surface. Understanding the causes and nuances of these behavioral challenges is critical. Especially in a global TBI scenario, the causal relationships can interact and overlap in unexpected ways. For example, sensitivity to light, sound, and taste can lead to challenging social interactions (reclusion from friends, crowds, and cafeterias) and be expressed in explosions of anger and profound anguish. Further confusing matters, the features of a TBI can mimic conditions with which we are readily familiar, like ADHD, but the neurological root cause can be different, and even opposite. A TBI survivor may appear distracted, restless, and unable to focus, much like a person diagnosed with ADHD. ADHD is the result of a dysfunction in the dopamine pathway so treatment with a stimulant (e.g. Ritalin) may be appropriate for the ADHD patient because it stimulates the brain by releasing dopamine in the striatum (a region of the brain related to motion and action). Meanwhile, that same inability to focus in the TBI survivor may be caused by overstimulation.

In a neurotypical brain, the prefrontal cortex can categorize, filter, and assimilate external inputs in a process known as "sensory gating." The brain captures all kinds of visual stimuli, repetitive and background sounds, unfamiliar smells, and other sensory information but, with sensory gating, it only lets through the important inputs so that we can manage our thoughts and emotions in a world that would otherwise overwhelm us with stimulation. When this gating process is impaired by TBI, it can result in overstimulation resulting in the inability to focus on appropriate stimuli. Imagine if there was no such thing as background noise. It’s all in the foreground. Imagine if every sneaker squeak sounded like a fire alarm. It would drive us crazy. That is life without sensory gating. This impairment can also result in a compensatory shutdown mechanism, making the TBI survivor appear lethargic and unmotivated when, actually, they are overstimulated. Understanding these subtle and clandestine differences can help you connect with and serve your client.2

(Lesson #10) The invisible injury is real. We all must work to learn the story of our clients. But with TBI, we need to work a little harder. The jury may see someone who looks like them and thinks like them. It takes a keen eye to see the lopsided smile, the hitch in the gait, the word-find issues disguised with humor or clever adages. You alone can paint the full picture. Maybe your client will have a story similar to our child: fighting to gain enough coordination to use a wheelchair. Abject joy and surprise the first time he took steps with a walker because lingering partial paralysis and vestibular and proprioception problems make balance nearly impossible. Happy tears the first time he loped around a baseball diamond. Daily emotional explosions are the narrative of life. Strict adherence to routine because any deviation initiates a tailspin. Unable to return to school, to daycare, to playgrounds, to playdates, to sports, for years and years. When he was finally able to attend a birthday party, he arrived in a full tuxedo and watched other kids jump in a bouncy house. He knew he’d never be allowed to do that. But here’s the miracle of Sam: he was just happy he was invited.

Today I asked (now sixth grade) Sam what he wanted you to know. He replied "Tell them that as hard as it was, and it was extremely hard, I look back and think how lucky I am." Then he asked if I would share baseball photos. I suppose our bonus lesson is that gratitude is an eternal salve (right up there with baseball).

Thank you, friends and colleagues, for representing TBI survivors. They need you. And they need you to understand. Their entire world has been flipped about, rummaged through, and hastily patched back together without respect to order, and yet they may appear to the rest of us the same. The world expects them to operate the same, too. If we are lucky, we trial lawyers can show a jury an MRI that clearly demonstrates the injury. But that does not change the isolation the client feels when the world swirls about, and everyone but them seems to understand the dance. Take the time to learn their dance. Plumb the depth of that invisible injury. Follow the long arc of neurological recovery, in all of its syncopated, non-linear, agonizing beauty. Celebrate the precious moments of triumph, no matter how trivial. Dig deep enough and you may gain more than understanding; you may just bear witness to a miracle.

Never lose hope, my heart. Miracles dwell in the invisible. —Rumi

1I will leave it for another day to discuss why I believe attorney advancement of these expenses is justified as an "expense of litigation" under RCP 1.8(e)(1), and not due to the 2022 amendment.

2This paragraph, along with much of Sam’s progress in recent years, would not have been possible without the incomparable Stephen Glass, MD, who, when I finally asked, kindly swooped in to direct Sam’s care (the last true captain!) and demystify TBI for the rest of us.