Articles Posted in Long Island

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When a baby suffers from a brain injury at birth, it is a devastating event for the entire family. The family is stricken with the knowledge that the happy healthy baby that they were expecting has received a birth injury that will render that child disabled for the rest of their lives. In cases of this nature where medical malpractice is involved, it is especially devastating for the parents. Many problems can affect the medical malpractice lawsuit in these cases. There are generally more than one doctor present at deliveries in hospitals these days. When there is more than one doctor, it can be difficult to determine which doctor deviated from acceptable medical practice of the day.

One case that involved a child who was delivered by an obstetrician in New York City, left this question unanswered. One of the doctors who attended the birth admits that he was negligent, but claims that the obstetrician who was responsible for the delivery of the child was responsible for the larger portion of blame. He contends that he was not involved in the actual delivery or prenatal care of the mother. He contends that the vast majority of brain damage occurred during that time of the delivery and not after the delivery when he became involved in the case. The doctor stated that he was responsible for caring for the newborn infant when the baby born. He stated that the primary injury to the child occurred when the obstetrician who delivered the child failed to administer oxygen to the mother when the child compressed the umbilical cord during labor. The obstetrician failed to notice that the child was not getting enough blood or oxygen through the umbilical cord until the child had been hypoxic for some time.

Following the delivery of the baby, the obstetrician handed the infant off to the Long Island pediatrician who was standing by. He contends that he was negligent because when he observed the child’s blood tests, he noticed that there was a very high bilirubin count. A high bilirubin count is indicative that the child has had a traumatic birth and that the baby may have suffered from a brain injury. He states that he was also negligent in that the child also had a high hematocrit level which would also tend to indicate that the baby had suffered brain damage during birth. If he had acted immediately with appropriate oxygen therapy, there is a chance that the child would not have suffered as severe a brain injury as he did. However, the pediatrician failed to act and some undetermined time after the child was born, it was discovered that the infant was severely brain damaged.

The parents of the child filed a personal injury lawsuit to recover damages from the medical malpractice that existed in that delivery room. The parents won the lawsuit and were awarded over two million dollars in damages. The pediatrician filed a motion that would prevent the family from recovering more than $450,000 from him personally as a result of the injury to the baby. He contends that he was not the person who caused the greatest amount of damage to the baby and that he should not have to share equally with the cost of damages that the obstetrician caused. The court evaluated the decision of the trial court and determined that the jury was not wrong in awarding damages to the parents and that the sum that was awarded was not extreme. They also contend that the testimony that was given at trial did not provide any type of identifiable manner in which the percentage of guilt could be divided between the two doctors. For that reason, the appeals court determined that the prior order of the court was accurate and that the responsibility would be shared equally between the two doctors.
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According to the research provided in a study released last week, the Army could reduce the chances of a soldier suffering from brain injury simply by having them wear a helmet one size larger and containing slightly thicker padding.

The study in Long Island found that as little as a Enlarge Closen eighth of an inch more cushion could decrease impact force on the skull by up to 24% – a substantial difference when determining whether or not brain trauma is on the menu.

Brain injury is a common occurrence on the battlefield of Afghanistan, and the Army is looking to verify the findings and then to move toward issuing larger helmets with the extra padding. Concussions are common among troops knocked about inside armored vehicles or flung to the ground while on foot patrols.

The results of the research and development are very encouraging. The work warrants field testing on a limited and experimental basis, starting with a brigade of soldiers. For a widespread policy and wardrobe change, more research and validation of the findings are necessary.

During the summer of 2010 alone, battlefield doctors diagnosed more than 300 service members per month with concussions and mild traumatic brain injuries (TBI). A smaller number of service members were diagnosed with more moderate or severe head wounds.
A New York Brain Injury Law Specialist says the effectiveness and economic brilliance of the study is that it offers an answer that is drawn from equipment the Army already has. “This is what appears to be an off-the-shelf solution.”

Helmets currently weigh about 5½ pounds. Upgrading to one size larger would add about 4 ounces of weight to the headgear. The study found that adding padding beyond an eighth of an inch provided only slightly better protection, and since they are concerned and unwilling to create helmets that are too large or heavy for soldiers to maneuver in, they are working with the idea of the 1/8 inch padding.

Although this discovery by Bronx scientists improves protection against a blow to the head, soldiers still need a bulletproof helmet and one that will resist blast waves. Only then will the brains of soldiers be completely protected from TBIs on the battlefield.
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A report issued by the Institute of Medicine (IOM) in Long Island now states that if an appropriate dose of nutritional supplements is administered soon after an injury occurs, service members wounded on the battlefield have a much better outlook at recovering from a Traumatic Brain Injury (TBI). Nutrition apparently plays an even bigger role than previously though.

Commissioned by the Department of Defense (DoD), the report urges the military to make infusions, which contain calories and protein, a standard part of care in the immediate aftermath of a brain injury.

Accordingly, these findings also have implications in the civilian sector. “The investment the military makes will cross over into the civilian population for injuries suffered by those in car accidents, in motorbike accidents, by kids on soccer fields,” says the IOM panel chairman, professor emeritus of food science and human nutrition at the University of Illinois.

In both Iraq and Afghanistan, brain injuries are commonplace among service members. According to the Defense and Veterans Brain Injury Center, within the U.S. military as a whole, over 200,000 cases of TBI have been diagnosed since 2000. A Manhattan doctor found out that 2,124 of those cases were classified as severe.

The chairman says, “Across the board, the military is trying to understand how to set the stage for the recovery of these individuals.”

The DoD asked the IOM to review all scientific literature that linked nutrition to brain injury outcomes. The panel, an eclectic mix of food and nutrition specialists, neurologists, and other experts, has met several times in the last 12 months.

Their strong suggestions were seasoned with the knowledge that more information in the field is vital to complete understanding.

The panel reviewed many studies, all of which were younger than 20 years old research-wise, and their study revealed correlatively to them that infusions of calories and protein implemented within the first 24 hours of injury and continued in the following two weeks, significantly reduced inflammation in the brain and aided recovery.

Long-term consequences of the injection of nutrition were not studied.

Investigation is underway as to the possibility of avoiding injury altogether with the nutrition supplements.
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At the climax of last year’s fighting season, more than 300 U.S. troops received mild traumatic brain injuriesor concussions every month. Often those injuries resulted from exposure to a blast. Troops not killed or gravely wounded by blasts were often left stunned or even momentarily unconscious.

Concerned that many soldiers were suffering mild traumatic brain injuries or concussions, the military put new treatment procedures in place last year. Regulations now require that any soldier or Marine caught near a blast has to be pulled from active combat for at least 24 hours, and they must be examined for signs of concussion. Those displaying symptoms – such as dizziness, headaches or vomiting – remain on rest duty until the symptoms disappear. This can take up to a week or two.

The concern that led to this change revolved around the thought that troops need time to recover, and that exposure to a second blast before a brain has healed, could cause permanent damage. Manhattan and Long Island doctors remark that it is pivotal that military officials are attempting to provide combat operation manuals that incorporate the wellbeing of soldiers.
Magnetic resonance imaging or MRI machines, will allow doctors in war zones to see areas of damage to the brain, experts remark.

Sometimes, the brain damage caused by blast can be so microscopic that it does not show up on a computed tomography (or CT) radiation scan. These types of scans are already in use in Afghanistan. Research has shown that about 30% of concussions missed by a CT scan are displayed by MRI machines that can even reveal damage to the brain’s wiring and uncovers areas where brain cell metabolism has been compromised.

The use of MRI technology in the field can also provide more precise diagnosis of muscular-skeletal problems and other very common combat injuries.

A renowned neurologist proclaims that an MRI in the field will allow field doctors to get away from just making a guess as to when soldiers can reenter combat. The potential gains of the push to get these machines onto the battlefield is so large as to be incalculable, reports a source.
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A man working as a janitor for a small private university was performing his usual tasks when he hit the back of his head on a metal pipe that overhung from the low ceiling of the basement of one of the buildings of the university. After hitting the back of his head against the metal pipe, he suddenly felt dizzy and his vision became fuzzy. He dropped to the floor and felt as though the entire left side of his body sagged. He was taken to a hospital immediately and was seen by a doctor’s assistant in the emergency room. He was immediately discharged when the doctor’s assistant noted that his symptoms had abated.

Dissatisfied with the diagnosis, man went to another hospital where he was diagnosed to have a brain injury: the area of his brain nearest the brain stem that leads to the spinal cord was bleeding. He stayed in the hospital for about thirty days. The Manhattan neurologist who treated him at the second hospital he went to gave a report that he believed that the brain injury sustained by the janitor was a direct result of the accident because the bleeding in the brain was in the same site as the area of his head that hit the metal pipe.

He later filed a complaint for damages under the Workmen’s Compensation Board. The doctor who treated him at the second hospital gave an opinion of his medical findings that the brain injury he sustained was a direct result of hitting his head against a metal pipe.

A year later, the janitor was examined by a neurologist retained by the Long Island university and he gave an opinion on his medical findings. He said that the brain injury sustained by the janitor was consistent with massive head trauma and not by hitting his head on a pipe. The neurologist for the university also opined that the janitor had been diagnosed with bleeding in his brain prior to the accident.

The Board found that the brain injury sustained by the janitor was caused by the accident. The university that employed the janitor asked for a review but the review board also found that there was medical evidence to support the conclusion that the brain injury sustained by the janitor was caused by his accident at the workplace. From his finding, the university appealed.
The only question before the Court is whether or not there is competent and credible medical evidence to support the finding that the brain injury sustained by the janitor was caused by the accidental hitting of his head against a metal pipe in the workplace.

The Court held that since the janitor’s claim for damages was brought under Workmen’s Compensation, the janitor has the burden of proving that the accident caused his disability. He may do so by presenting competent medical evidence. The evidence must not only consist of a medical opinion but it must also include objective medical data on which the medical opinion is based.

The Court also held that the Workmen’s Compensation Board has the obligation to resolve the issue of whether or not the evidence presented by the janitor is competent and whether or not the testimonies given by the janitor and his medical experts are credible.

Looking at the report and the decision of the Workmen’s Compensation Board and the Review Board, the Court noted that ample medical evidence was used to support its findings. Without any claim on the part of the employer of any grave abuse of discretion on the part of the Board, the Court refuses to substitute its own findings for that of the Board.
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This is a case where the Manhattan Court reiterated the principle that when a single indivisible injury, such as brain damage, was negligently inflicted upon the plaintiff, defendants can be held jointly and severally liable notwithstanding that the latter neither acted in concert nor concurrently with each other.

A mother, who suffered gestational diabetes during her pregnancy, gave birth to an unusually large baby who is the plaintiff in this case. At the time of the trial, plaintiff was severely and permanently retarded as a result of the brain damage she suffered at birth. The evidence established that the obstetrician who had charge of the ante partum care of plaintiff’s mother and who delivered the plaintiff, failed to ascertain pertinent medical information about the mother, incorrectly estimated the size of the infant, and employed improper surgical procedures during the delivery. It was shown that the defendant, the pediatrician under whose care Josephine came following birth, misdiagnosed and improperly treated the infant’s condition after birth. Based upon this evidence, the jury concluded that the obstetrician committed eight separate acts of medical malpractice, and the defendant pediatrician committed three separate acts of medical malpractice.

During the trial, the plaintiff’s witness concluded that neither he nor anybody else could say with certainty which of the factors caused the brain damage. Although the obstetrician’s negligence contributed to the plaintiff’s brain damage, the medical testimony demonstrated that the defendant’s negligence was also a substantial contributing cause of the injury. No testimony was adduced, however, from which the jury could delineate which aspects of the injury were caused by the respective negligence of the individual doctors.

After the jury was charged, the Long Island defendant contended that he was only “liable for what injury he puts on top of the injury that exists”, and therefore responsible only as a successive and independent tort-feasor. He claimed that his liability was not joint and several but rather was independent and successive.

The Court did not agree.

The Court held that when two or more tort-feasors act concurrently or in concert to produce a single injury, they may be held jointly and severally liable. This is so because such concerted wrongdoers are considered “joint tort-feasors” and in legal contemplation, there is a joint enterprise and a mutual agency, such that the act of one is the act of all and liability for all that is done is visited upon each. On the other hand, where multiple tort-feasors “neither act in concert nor contribute concurrently to the same wrong, they are not joint tort-feasors; rather, their wrongs are independent and successive. Under successive and independent liability, of course, the initial tort-feasor may well be liable to the plaintiff for the entire damage proximately resulting from his own wrongful acts, including aggravation of injuries by a successive tort-feasor. The successive tort-feasor, however, is liable only for the separate injury or the aggravation his conduct has caused.

The Court stated that While the wrongful acts of the two defendants were not precisely concurrent in point of time, the defendants may nevertheless be joint tort feasors where, as here, their several acts of neglect concurred in producing the injury.”

According to the court, he jury was unable to determine from the evidence adduced at trial the degree to which the defendants’ separate acts of negligence contributed to the brain damage sustained by the plaintiff at birth. Certainly, a subsequent tort-feasor is not to be held jointly and severally liable for the acts of the initial tort-feasor with whom he is not acting in concert in every case where it is difficult, because of the nature of the injury, to separate the harm done by each tort-feasor from the others Here, however, the evidence established that plaintiff’s brain damage was a single indivisible injury, and defendant failed to submit any evidence upon which the jury could base an apportionment of damage.
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The infant plaintiff, then a sixth grader at Intermediate School 292 in Brooklyn (IS 292), was seriously injured when he fell down a flight of stairs on his way to lunch. Because of the resultant traumatic brain injury, plaintiff was unable to remember what caused him to trip and fell down. However, it was plaintiff’s theory at the trial of this action, that he was pushed down the stairs by a group of older students. Plaintiff further presented testimony that it was the written policy of IS 292 to have a teacher escort the sixth graders down to lunch from their second floor classrooms. Plaintiff claims that his teacher’s negligent failure to do so proximately caused his injury.

Plaintiff testified that, he had been in math class on the second floor right before lunch and that the teacher for the class was Mrs. Thomas. According to plaintiff, Mrs. Thomas never escorted her class to the lunchroom and that day was no exception. Plaintiff stated that at the sound of the bell, he and his friend Nathaniel headed to one stairwell, while the rest of the class went to the stairwell at the other side of the hall. The Manhattan Plaintiff testified that he suddenly heard footsteps which sounded like they were coming from a herd of buffalo and the next thing he remembered was waking up in the school nurse’s office with a tissue on his forehead and blood stains on his shirt. Plaintiff was taken by ambulance to Brookdale Hospital where he spent time in the Intensive Care Unit.

A Lawyer said that, at trial, plaintiff detailed the “excruciating” pain he suffered immediately following his accident and for the six days he spent in the hospital. Plaintiff described this pain as being in his head, neck, and lower back. Additionally, his arms and leg were swollen and sore and he was in a neck brace. After his release from the hospital, plaintiff received outpatient physical and occupational therapy there. The purpose of the physical therapy was to improve his balance and mobility skills and the occupational therapists sought to improve plaintiff’s hand/eye coordination and to build strength in his arms. Plaintiff stopped attending therapy but had to use a cane for balance for about three years.

Plaintiff testified that up to about a year before the trial he would get very bad headaches every week or two and these headaches would last between two and three days. When he had a headache, all he wanted to do was sleep because it hurt to be around noise and light. At trial, plaintiff reported that he continues to take medication to prevent the return of these attacks. Lastly, plaintiff testified that his head injury has affected his ability to play sports because he is unable to stand for long periods or to jump.

A Lawyer said that, defendants The City of New York and the Board of Education of the City of New York called only one witness to testify. Dr. Marlon Seliger, a neurologist examined plaintiff for about five or ten minutes. In conducting his neurological examination upon plaintiff, the doctor first asked plaintiff questions to determine if he was oriented to person and place. He also asked him questions to assess his cognition, memory, and speech and language ability. He then performed a motor and sensory examination. Dr. Seliger did not find any deficits in plaintiff’s neurological function and concluded that he did not suffer a neurological injury as a result of his trip and fall down the stairs.

The jury found defendants “negligent in the supervision of plaintiff” and further found that that negligence was a substantial factor in causing the injuries sustained by him. The jury awarded plaintiff damages in the aggregate sum of $200,000 for past pain and suffering and $150,000 for future (58 years) pain and suffering. The jury also awarded plaintiff damages of $800,000 for impairment of future earnings during the next 45 years.

Defendants’ moves to set aside the jury verdict rendered in favor of plaintiff and grant judgment in their favor on the ground that they cannot be liable for plaintiff’s brain injuries as a matter of law. Alternatively, defendants seek an order, pursuant to setting aside the jury verdict and ordering a new trial on the ground that the verdict is against the weight of the evidence.

The issue in this case is whether defendant is liable for the brain injuries suffered by the plaintiff.

The Court insofar as deciding in the question of liability of the defendants, said that according to defendants, assuming that plaintiff was pushed down the stairs by the unidentified group of students, that attack was not reasonably foreseeable by the school and, since the unprovoked attack was sudden and spontaneous, any lack of supervision by the plaintiff’s teacher could not have prevented it. Thus, concludes defendants, that lack of supervision was not the proximate cause of plaintiff’s injury. The court rejects defendants’ contention that the verdict is contrary to the law.

The Court held that, it is beyond cavil that schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians.

In previously denying summary judgment to defendants, this Court, in a decision, found that questions of fact existed “as to whether the school had a written policy for teachers to escort the sixth grader classrooms to the cafeteria; whether it violated that policy and whether such violation was a proximate cause of the injury”. At trial, it was undisputed that the school did have such a written policy. As noted, David Prager, the assistant principal of the school, explained that that policy was put into effect because it was recognized that the sixth graders should not be unsupervised in the hallways and the stairwells since, as the youngest members of the school community, they were at the greatest risk of being injured in those areas. Having defined their duty, the defendants cannot now claim that no such duty existed. In that same vein, it is disingenuous for defendants to claim that such an attack was unforeseeable when their own assistant principal testified that one of the reasons that crowds were kept out of the stairwells by the teachers was because someone could get pushed down the steps.

Nor did defendants present any evidence to dispute plaintiff’s testimony that his teacher violated that duty by staying in the classroom instead of escorting her class to the lunchroom. Finally, the evidence failed to establish as a matter of law that the violation of the defendants’ duty that is, the fact that there was no teacher in the stairwells was not the proximate cause of plaintiff’s head injury or that her presence therein may have prevented the incident.

Thus, the court concludes that defendants have not established their entitlement to judgment as a matter of law, and that the issues of fact were properly left for jury determination. Defendants contend that its determination was against the weight of the evidence presented at trial. Further, it is well established that a jury verdict may not be set aside as against the weight of the evidence unless it plainly appears that the evidence so preponderates in favor of the other side, that such verdict could not have been reached by any fair interpretation of the evidence. In that regard, great deference is accorded to the fact-finding function of the jury, since, having seen and heard the witnesses at trial, it is in the foremost position to assess their credibility.

In the case at bar, as discussed, the evidence supported the jury’s determination that the defendants had a duty to protect plaintiff by escorting him and his classmates down to the lunchroom and that her failure to do so was a violation of that duty. The long Island Court also concludes that the jury’s further determination that that violation was a proximate cause of plaintiff’s head injury was supported by a “valid line of reasoning and permissible inferences” and therefore should not be disturbed.

It is true, as defendants note, that there was no direct evidence as to how plaintiff trip and fell down the stairs. However, the circumstantial evidence at trial supported the conclusion that plaintiff was in fact pushed down the stairs by an older student. In that regard, it is well settled that when relying upon circumstantial evidence to establish all or part of a plaintiff’s prima facie case it is enough that plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.

In this case, Mr. Prager testified that he saw a group of students running toward the stairway and bounding into the stairwell. While plaintiff had no memory of his fall, he did remember hearing heavy footsteps approaching. When Mr. Prager opened the stairwell’s door minutes later, the group was no longer there, but he saw plaintiff’s blood on the ground at the bottom of the stairs and plaintiff being helped to the nurse’s office by a security guard.

Faced with this evidence that the group charged through the stairwell where plaintiff had just entered and disappeared after his fall, it was reasonable for the jury to infer that one or more of the members of the group was responsible for plaintiff’s head injury.

Defendants contend, however, that even assuming their duty and their negligence, they cannot be held liable because the evidence established that the attack happened so quickly that, even had a teacher been stationed on the stairwell, it could not have been prevented. Thus, defendants claim that the evidence failed to support the jury’s finding that their lack of supervision was a proximate cause of plaintiff’s injury.

Moreover, the jury could have reasonably concluded that had a teacher been present in the stairway, the student or students would not have pushed plaintiff. After all, the jury may use the “logic of common experience itself, as applied to the circumstances shown by the evidence” in determining whether the defendant’s negligence caused plaintiff’s injury. The conclusion that the students did not want to be identified and would not have committed what could have been charged as a criminal assault in front of a witness is not only supported by common sense, but by the fact that they ran from the scene after plaintiff’s fall. The jury could also conclude that had plaintiff tripped down the stairs through no fault of these students, they would have likely sought to get him help rather than run away.

In view of the foregoing, the Court denied the motion of the defendant which seek to set aside the jury verdict as contrary to law or as against the weight of the evidence; and the motion which seeks an order reducing the damages awarded plaintiff, as well as plaintiffs’ cross motion seeking an increase in those damages.
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The current conflicts in Iraq and Afghanistan have led to a great many more serious injuries to United States service members. One of the most prevalent and dangerous is explosive blast traumatic brain injury (TBI). Doctors have been studying the rising trend.

There have been a number of military medical treatments for blast TBI which have been a success in the war theater, such as decompressive craniectomy, cerebral angiography, transcranial Doppler, hypertonic resuscitation fluids, and others. There has been similar progress stateside in neurosurgery, neuro-critical care, and rehabilitation for patients suffering injuries caused by blast TBI.

As they continue to treat these injuries, military physicians in Brooklyn and Long Island have been able to clinically categorize many types of blast TBI, according to studies. One of these important discoveries is the development of psuedoaneurysms and vasospasm in severe blast TBI victims, which can cause delayed decompensation. Another is that mild blast TBI often has very similar clinical features to post-traumatic stress disorder (PTSD). Some physicians have conclude that the injuries explosive trauma causes to the nervous system might be more complex than might appear at first examination.

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Physicians currently do not have many distinctions between explosive blast traumatic brain injury (bTBI), closed head traumatic brain injury (cTBI) and penetrative traumatic brain injury (pTBI), according to doctors. The military also uses the same criteria to assess such injuries as civilians.

A 1993 definition from the Mild Traumatic Brain Injury Committee of the American Congress of Rehabilitation Medicine of TBI apples to bTBI when an explosive blast causes loss of consciousness, amnesia, or loss of focus. The severity is determined by how long the altered mental state lasts. Less than 5 minutes is mild, though it can lead into difficulties like headaches, confusion, and amnesia, as well as a difficulty to concentrate, altered mood, problems sleeping, and general anxiety. These symptoms usually go within a few hours or days.

Studies in Manhattan and Long island have discovered that even these mild cases could result in post-concussive syndrome which could happen days later. Government agencies are currently developing guidelines to manage this condition, which seems to respond to simple reassurance and specific treatments like non-narcotic analgesics, anti-migraine medication to treat headaches, and anti-depressants. Just as with civilian cTBI, the problem might last only a few weeks, but it might well last a year or more in some cases.

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Blast TBI (traumatic brain injury) happens to many combatants, according to doctors. It can rightfully be considered a new class of TBI. While it might share a lot of features with standard TBI, it has some unique aspects that are all its own.

The milder forms of TBI can be very similar to PTSD (post-traumatic stress disorder), but it also has distinct aspects of its own. The military currently uses civilian standards of care for TBI when it comes to bTBI (explosive blast TBI), but they are constantly revising their standards to better provide for those injured on the field, according to experts. The theater of war requires different standards of medical practice.

It is apparent that there need to be more studies done on the precise effects of bTBI, both scientifically and clinically. The research will have to be focused upon how explosive blasts can lead to TBI. It is also important to learn how prevalent this disease is, and the exact causes. Once the research reaches a certain level, it will become much easier to diagnose and treat bTBI. A clinical definition of bTBI should quickly create the means to treat bTBI.

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