Category Archives: Law

R.I.P. President George H.W. Bush

Today, at 11:00am ET, former Presidents, dignitaries, family members and others pay tribute to the 41st President of the Unites States, George H.W. Bush.  For the purpose of this website, it is a day to remember all that President Bush did for those with brain injuries, and for those with disabilities, at large.

President Bush was America’s last president to serve in the military overseas at war.  (President Clinton, President Obama and President Trump did not serve.  President George W. Bush served stateside as a pilot during the Vietnam War.)  Specifically, as a 20-year-old man, he served as a pilot in the Pacific during World War II.  As detailed in the book Flyboys, on September 2, 1944, while targeting a Japanese radio transmitter on the island of Chichijima, his plane was shot over the Pacific Ocean.  Bush did not abandon his plane, instead continuing to fight until his plane went down.  One source states that his injuries from this combat tragedy, that took the lives of many of his squadron, included “bleeding from a headwound”.

“Why had I been spared and what did God have in store for me?… there’s got to be some kind of destiny and I was being spared for something of Earth,” Bush later said about his trauma in WWII.  For those with disabilities, part of that reason was definitely his signing of the American Disabilities Act on July 26, 1990.  Modeled after the Civil Rights Act of 1964, the ADA aimed for equal opportunity for those with disabilities.  While a list of what impairments constitute a disability is not defined in the Act, a disability is defined as, “a physical or mental impairment that substantially limits one or more major life activities of such individual.”  These limiting impairments include, “functions of the… neurological, brain…”

Following his presidency, President Bush continued to support those with brain injury.  In 1996, he created a PSA for the Pediatric Brain Injury Prevention Campaign.  Prior to the PSA, the Campaign had no association with President Bush.  He agreed to do the PSA simply based on a request submitted through letter.

Recently, President Bush suffered through his own trauma – vascular Parkinsonism.  Thought to be caused by a multitude of mini strokes, vascular Parkinsonism is so named because it shares many of the characteristics of Parkinson’s disease.  (Some dispute this correlation, as Parkinson’s can be helped by medication, but vascular Parkinsonism cannot.)  On Friday, November 30, 2018, President, Vice President, Congressman and CIA Director Bush passed away.  After his funeral, his body will travel to Texas where he will be laid to rest next to his wife of over 70 years, Barbara and his young daughter Robin.  For the disabled, his legacy of the ADA will continue.

Mercury on the Mind – 2

Following the posting of my last article, I found additional interesting information about mercury and dentistry (dentistry may not be the primary use of mercury, but it is the most visible one).  Although mercury is no longer toxic once it is absorbed into a compound in a dental filling, laws regarding the use, particularly the dental use, of mercury exist.  For example, in New York, the environmental conservation law was amended in 2002 to state, “no dentist shall use or possess elemental mercury in the practice of dentistry unless such elemental mercury is contained in appropriate pre-encapsulated capsules.”

As it relates to a medical procedure that many brain injury survivors undergo, this summer the journal Radiology published an article: High-Strength MRI May Release Mercury from Amalgam Dental Fillings.  Further study of the possible effects of MRIs and mercury, show that while MRIs on someone who has mercury in their body may not cause or cause harm to a brain injury per se, NIH studies, “provide further support for the noxious effect of MRI (exposure to strong magnetic field) and release of mercury from dental amalgam fillings.”  (Additionally, MRIs can harm implants, such as brain stimulators, which may contain mercury.)

(In relation to the use of the ten chemicals of health public concern, particularly as it relates to dentistry, I would also advice people to be wary of fluoride.  The World Health Organization warns of both inadequate or excess fluoride intake.  Just like mercury, fluoride can help teeth at certain levels, but overexposure can lead to such things as tooth decay and skeletal fluorosis.  Smile! New water fluoridation level called for by government read the title of a CNBC article related to the 2015 federal increase in the amount of fluoride allowed in drinking water.  In fact, all articles I found related to this increase were positive.)

Mercury on the Mind – 1

In Thursday’s article related to brain injury and mercury, I see that some may have found the title derogatory towards dentists.  As someone who had braces in middle school and yearly gets regular checkups, I see the benefit of dentistry.  In addition, I understand that doctors and individuals recognize the benefit of treatment and care with mercury on certain conditions.  For these reasons, I have changed the title of this article.

Mercury Can Cause Brain Damage in Kids read the headline in the Huffington Post earlier this year.  Mercury (Hg) is a naturally-occurring, odorless silver metallic trace element that is liquid at room temperature.  It comes in three forms: elemental mercury, which is the form of mercury found on in teeth fillings, inorganic mercury, and methylmercury, also known as organic mercury found in such things as fish.  Its safety has long been disputed.  For example, while many people have amalgam teeth fillings that contain mercury, batteries, which are filled with mercury, are known to be unsafe. In medicine, it has been used as a purgative, disinfectant, astringent and particular as an antisyphilitics treatment.

Mercury is a neurotoxin.  Ingestion, absorption and fume inhalation of mercury can cause mercury poisoning.  The complications of mercury poisoning are numerous and can happen to people of all ages: weakness, fatigue, headaches, lower back pain, ataxia, slurred speech, tremor, somnolence, and mental disturbances, such as hallucinations and psychosis.  In fetuses and young children, Hg exposure, “may delay developmental milestones,” the NIH found 20 years ago.  For these reasons, mercury has been named one of the ten chemicals of major public health concern by the World Health Organization.  Additionally, its application in medical/dental care and in such products as fertilizers and pesticides has been lessening through the years.  One of the concerns scientists and people, in general, have with consumption of tap water is the possible additional consumption of mercury.

This year, the above-mentioned Huffington Post headline continues: Mercury Can Cause Brain Damage in Kids, the EPA Wants to Weaken Rules On Its Emissions.  The article’s title relates specifically to a legal proposal the Environmental Protection Agency sent to the White House that they say would hobble the 2011 Mercury and Air Toxic Standards (MATS) rule.  It specifically refers to the mercury emitted in the production of coal.  (However, the article’s title simplifies the action they are requesting, in a negative manner.  The proposal wants to eliminate co-benefits, in order to save the coal industry billions.)  A win for the coal industry, the article continues, as power plants are the nation’s biggest emitter of mercury.  If the proposal is enacted, there will be additional health costs for the public.  While the financial burden to the public is much less than the current cost of implementation of the rule for the coal industry, is the outcome more important?

I see no legislative follow-up on the proposal.  Additionally, on the EPA webpage dedicated to MATS, it still states that the ruling has prevented thousands of premature deaths a year and has many health benefits, which seems to imply that the basic standards have stayed the same.  However, if the rules regarding mercury are lessened, critics call it a win for the coal industry, as MATS specifically sets limits on the amount of mercury, and other toxins, allowed in coal-fired power plants.

Preventing Pesticides from Killing Bugs and Brain Cells

A pesticide is “any substance used to kill, repel, or control certain forms of plant or animal life that are considered to be pests.”  No one denies the harm in ingestion of a pesticide.  However, the legality of using certain chemicals in pesticides has been long debated – at present, the chemical chlorpyrifos is of particular concern.

An active ingredient in some pesticides since 1965, chlorpyrifos is “used primarily to control foliage and soil-borne insect pests on a variety of food and feed crops.”  A Google search shows that it is sold under a variety of brand names.  In the past few years, chlorpyrifos has been a focus of concern because of a government-supported study conducted by the Columbia Center for Children’s Environmental Health at Columbia University.  One of the findings of this study confirms, “Children with high pesticide exposure cluster together to form a distinct behavioral phenotype… Cognitive and behavioral deficits associated with this phenotype may be mapped to alterations in brain regions and function.”

Legislation related to pesticide control was first introduced in Congress over a century ago in the Federal Insecticide, Fungicide, and Rodenticide Act.  Since its enactment in 1910, this legislation has been amended and new legislation regulating pesticide use has passed, such as the Food Quality Protection Act in 1996.  In November 2015, the EPA, with former head Gina McCarthy, proposed a ban on the use of neurotoxic chemical chlorpyifos on all food crops.  What then happened to this proposal is unclear.

During the tumultuous tenure of former EPA head Scott Pruitt, in 2017 and 2018, chlorpyrifos came to the pesticide forefront.  In 2017, Pruitt refused to sign off on a ban of the use of chlorpyrifos as a pesticide on food crops.  This decision, many say, is a sign of Pruitt siding with the “Pesticide Lobby”.  Groups such as the Environmental Working Group (EWG) have denounced and fought against Pruitt’s action, noting that, “The evidence is overwhelming that even small doses of chlorpyrifos can damage parts of the brain that control language, memory, behavior and emotion.”  Finally, last month, Pruitt’s decision was reversed by the United States Court of Appeals for the Ninth Circuit – the EPA now bans the use of chlorpyrifos on food crops.

While the above decision is a victory for food safety, the results of this legislation are not immediate.  Additionally, fruits and vegetables must still be washed before eaten both to eliminate any residual pesticide and to better the taste.  On the positive note, though, the EWG notes that, “the agency [has] put children’s health, strong science and the letter of the law above corporate interests.”

Mitigation for Morality and Murder

In the modern world, our understanding of science changes rapidly.  Law, at large, does not change so rapidly.  What has changed, in the past 20 years, is that defense lawyers have begun, during the trial and/or sentencing phases of court, to use brain damage/injury as a mitigating factor for criminal acts.

Brain injury was first introduced as a defense in 1966 for Charles Whitman, the so-called Texas Tower Sniper.  (Whitman stabbed his mother and his wife, shot to death 16 people at the University of Texas at Austin and shot and injured 31 others.  An autopsy upon his death found a tumor in his brain.)  Since the start of this century, the exploration into the effects of brain injury on what some may see as moral quandaries for those with neurological deficits has broadened.  Generally, what has been found is that head injury, specifically a brain lesion, can hinder executive functioning, which governs the ability to plan ahead, think things through, manage impulse, etc.  However, this is basic knowledge that applies to all brain injury survivors; tests specifically related to the unique brains of those who commit criminal acts are inconsistent.

In 2015, the NIH published a report, Does TBI Lead to Criminality?.  Their conclusion states, “The results support a modest causal link between traumatic brain injury and criminality.”  Investigations have shown that while brain injury is not a sufficient defense for a criminal act, it may be a mitigating circumstance in the sentencing phase of a trial – treatment versus incarceration.

Since then, brain damage/injury has often been used as a defense, most recently earlier this month: a convicted murderer in Ohio said, during sentencing, “Not everyone is fortunate enough to have a caring family or outside guidance… I am proof [that] a young person – beaten and abused physically, emotionally, and mentally – becomes the abuser.”   Though the defendant now admits to the killing of five women, the testimony of one of two testifying doctors states that because Kirkland MAY have a brain injury, he should not receive the strictest punishment, the death penalty.

Perhaps, though, the “brain injury” defense will relatively soon become a thing of the past.  The above-mentioned NIH report further concludes, “Reducing the rate of TBI… might have benefits in terms of crime reduction.”  (Since this report was released, more defendants have used brain damage as a mitigating factor for criminal acts.)  According to a UK study, approximately 50 to 70% of the incarcerated population have a brain injury.  That percentage is thought to be in the same realm as those imprisoned in America.  Given these astonishing statistics and the continuing government-sponsored and private research on brain injury prevention and recovery, the NIH’s conclusion seems a definite possibility.

(See also Massachusetts General Hospital – Center for Law, Brain & Behavior, “an academic and professional resource for the education, research, and understanding of neuroscience and the law.”)

Brain Injury to be Revised in ND

Infographic defining coma, vegetative state, minimally conscious state, and post-traumatic amnesia.

To one who has a brain injury and their family and friends, the definition may seem relatively clear – a brain injury is something that disrupts the functioning of the brain.  Nationally, the CDC has only a specific definition of and webpage for traumatic brain injury, whereas the NIH notes that TBI is an acquired brain injury. 

To support recovery from all types of brain injury, though, states must first each define what constitutes a brain injury.  In New Jersey, the government-funded Traumatic Brain Injury Fund states that, “to qualify for the Fund, an individual must have an acquired brain injury; defined as an injury to the brain caused by a blow or jolt to the head or a penetrating head injury/neuro-trauma that disrupts the normal brain function, where continued impairment can be demonstrated.  This definition does not include dysfunction caused by congenital or degenerative disorders, birth trauma, or injuries caused by other circumstances.”  The webpage produced by the New York State government is focused on traumatic brain injury, which they define as, “an injury to the brain or skull caused by an external force, such as a strike or impact.”  One must click further to get a definition of acquired brain injury

As can be seen in New York’s definition, many states define only traumatic brain injury – not acquired brain injury.  While many acquired brain injuries are traumatic, all traumatic brain injuries are acquired.  However, many states do not consider those brain injuries that are not defined as TBIs, such brain insults as strokes, to be a brain injury.  Strokes and other acquired brain injuries, however, often need such things as costly recovery too, which may require government funds.

North Dakota has realized this funding error.  As of last week, “the state legislature’s interim health committee is looking at a draft bill that would change the definition of a brain injury.”  This new definition would change the definition to allow the inclusion of all brain injuries, not only traumatic brain injuries.  Below is the proposed revision, with the crossed-out section noting the old definition:

“‘Brain injury’ means ‘any injury to the brain which occurs after birth and which is acquired through traumatic or nontraumatic insults. The term does not include hereditary, congenital, nontraumatic encephalopathy, nontraumatic aneurysm, stroke, or degenerative brain disorders or injuries induced by birth trauma an insult from physical force or internal damage to the brain or the coverings of the brain which produces an altered mental state and results in a decrease in cognitive, behavioral, emotional, or physical functioning. The term does not include an insult of a degenerative or congenital nature.”

Since it is important to have a full and clear definition in order to gain support, funding and full care for all those in need, it is critical that the North Dakota government votes on this more inclusive bill soon.

Note: If you are aware of an error regarding what I identified as the states’ definitions of brain injury, please comment below and it will be rectified.

The Importance of PLAY(S)

Children generally have more physical energy than their adult counterparts. As a consequence, many participate in youth sports leagues, which not only provide physical activity, but also teach them to work effectively with their peers.  Last year, Senator Capito (WV) proposed Senate Resolution 227 which marked July 16 – 22 as National Youth Sports Week.  According to the bill, the week is, “a celebration of youth sports participation and all of the benefits youth derive from engagement in sports.”

In 2018, “[this] week… thousands of youth sports coaches, athletic directors, recreation directors, association members, sponsors, young athletes, and parents across the country show their support focusing on P.L.A.Y.S. ~ Physical activity, Living healthy, Access, Youth development, Safety.”  While having access to the physical activity and youth development provided by sports, which is a key part of healthy living, is important, the S (safety) should always be included in the celebration.

***The bones of children are still in development and, therefore, weaker.  Additionally, the coating of myelin, neuron fibers, in the brain of youth is still in development.  Because of this, physical injury, including skull injury, is more common and more severe in children, than in adults.  Particularly this can be found in sports, most notably in youth football, youth hockey and youth soccer, but the risk is present in all sports.  (For example, this month, the CDC published an article that identifies brain infection/injury as a rare, but possible result of fresh water swimming.)  Additionally, beyond physical safety, sports may affect the brain psychologically, but this affect can also be positive.  New Jersey, among other states, has a youth sports concussion law, “to help reduce the risk of student-athletes suffering concussion, and its long-term consequences.”  Included as a possible long-tern consequence is a traumatic brain injury.

Trump Gives Credit to Caregivers

“Trump donates his presidential paycheck to VA caregivers,” read the headline on The Military Times website yesterday, May 17, 2018.   Specifically, the President’s quarterly paycheck of $100,000 is the first check that the President has donated to the VA (earmarked for the caregivers) and the fifth paycheck that he has donated to various governmental departments.  “President Trump understands the critical role of caregivers,” said Acting VA Secretary Robert Wilkie of this quarter’s donation. Apart from financial support, caregivers support the health and healthcare of dependents and provide much needed social interaction.

Earlier this year, the “Trump tax cut”, H.R. 1, that passed in March, states that, “The [tax] credit [for caregivers]… shall be increased by $500 for each dependent of the taxpayer.”  A dependent is defined as a relative who lives with the caregiver, earns less than $4,050 annually and that the caregiver financially supports.  This is a description that applies to many brain-injured individuals.

Illegal Immigrants and Brain Injury

A hot topic in the past few decades, illegal immigration has now come to the forefront because of America’s current president and his border wall.  (For the past 10 years, the estimated number of illegal immigrants in America has stayed relatively stable at about 11 million.  During the presidencies of Bill Clinton and George W. Bush, it was steadily rising.)  As for brain injury and undocumented residents, there are many cause-and-effect questions that, when answered, are quite sobering.

To begin, what if the illegal immigrant is the culprit?  What if the illegal immigrant causes someone to have a brain injury, either intentionally or inadvertently?  First, the police or whomever is pursuing the case must find them.  Since illegal immigrants are largely undocumented, this can be a hard task.  For better or worse, depending on your political ideology, a number of states are now allowing an illegal immigrant to legally obtain a driver’s license and register their car.  In January 2015, for example, California signed into law AB60, which, “requires the [DMV] to issue an original driver’s license to an applicant who is unable to submit satisfactory proof of legal presence in the United States.”  New Jersey, with the support of Governor Phil Murphy, is now preparing for a similar bill, Assembly Bill No. 1738, to pass.  If this bill passes, it will make New Jersey the 13th state, plus the District of Columbia, to allow this.  (What the consequences are for an illegal immigrant who inflicts injury on another person, such as through a car accident and even if they are legally licensed, is unclear.  They are subject to criminal charges, but civil action may be more difficult.  As they are illegal, and many do not submit tax returns, which would show their yearly income, monetary consequences to cover such things as rehabilitation costs are not possible.)

More so, the government does not seem to account for the economic costs of brain injury:  For the victim, there will be a lose of future wages as, even if the victim is able to return to work, they will be away for a bit.  Additionally, when returning to work, a brain injured individual may have to pursue a career that is less cognitively and/or physically demanding and often less lucrative than their previous occupation.  For the Internal Revenue Service (IRS), this means less taxable dollars are earned.  Also, the brain injured individual may stay longer or indefinitely on Medicare and/or Medicaid.  The government then is required to help pay for their doctors’ visits, their medication, etc.

But, how about when the illegal immigrant is the victim?  No one wants to see a person, legal or not, suffer or even die due to lack of medical care.  All told, the government is financing about $18.5 billion a year for medical care to unauthorized immigrants.  Of this total, “federal taxpayers provided $11.2 billion in subsidized care to unauthorized immigrants in 2016.”  (“A relatively small number of undocumented immigrants, perhaps in the tens of thousands, obtain health insurance through private employers,” states a 2016 article.)  However, a page on the NIH website, written by an individual who had authored other pages on ethics, as it relates to illegal immigrants, notes that, “the Patient Protection and Affordable Care Act of 2010 ignored the health care of undocumented immigrants and will not provide relief to undocumented patients with catastrophic illness like ESRD, cancer, or traumatic brain injuries.”

There are local health clinics, hospital emergency rooms and free medical school clinics that must treat everyone, regardless of legality.*  Additionally, some doctors will treat undocumented immigrants, off the record.  Treatment for brain injury though, requires more than a brief trip to the doctor.  As an article from 2009, when illegal immigrants were treated differently by the government than now, is titled, “Struggling to find post-acute care for undocumented and uninsured immigrants.”  Should ethics trump legality, no pun intended?

*Another article recounts the story of an illegal man, without insurance, who suffered a stroke.  Though the hospital legally had to treat him, his care would be uncertain the second he stepped out of the hospital grounds.  Would receiving care for his stroke result in a “medical deportation”?  Ultimately, the hospital was able to find the man’s family in Mexico, but the trip to return him to his family cost $50,000 and was paid entirely by the government.

Note: The above post is not a personal comment on illegal immigration.

Investigators Question America’s Football Crisis

People now see football and brain injury as a definite cause-and-effect.  Parents are much more hesitant to allow their school-aged children join the school football team.  In January, for example, laws related to youth football were proposed in Illinois and New York, both named after former NFL players who suffered the effects of CTE (chronic traumatic encephalopathy).  In Illinois, HB4341 was named after Dave Duerson, a former Chicago Bears player who committed suicide in 2011 and whose autopsy showed that he had a brain injury.  Officially known as the CTE Prevention Act (HB4341), the last action on the Duerson Act was on April 27, 2018 when it was referred the Rules Committee.  In New York, A1269A is named after former Baltimore Colts tight-end John Mackey, who showed signs of brain injury prior to his death at age 69.  The John MacKey Youth Football Protection Act is also still in Committee in the State Assembly.  (Notably, the MacKey Act only prevents children 11 years and younger from playing tackle football, not 12 or 13 years as other proposed laws restrict.)

In Maryland, a bill was introduced by Delegate Terri Hill, and failed, that would have changed the rules for youth soccer, lacrosse, hockey and [tackle] football.  (“I really did not expect it to pass, but I think it’s a conversation we have to have and I don’t think the conversation is over,” Hill said.)  In New Jersey, A3760 was introduced by Assemblywoman Valerie Huttle on April 5, 2018 to prohibit children under the age of 12 from participating in tackle football.  After its introduction, it was referred to the Assembly Women and Children Committee, where it sits now.  Last week, AB-2108 failed in the California Assembly, “but before the outrage and the mudslinging and the ‘Save Youth Football’ rallies, [the] resolution pass[ed] unanimously, with 69 co-authors.”

Many proponents of safer/more restrictive youth football cite a recent Boston University study that showed that hits to the head, not concussions, cause CTE.  Hits to the head are thought to be simply a means of defense in football, not just the residual effect of defense, like a concussion.  Therefore, it’s harder to eliminate them while keeping the competitive edge of the sport.  (Getting rid of the tackle part of professional football would be more difficult, but it is still difficult in youth football, without allowing it to become touch football.)

What the safety rules of youth football should be is a good discussion to have, especially now that a Court-appointed Special Investigator has shown that some NFL players who have claimed brain injury did not, if fact, have such neurological problems.  The Investigator found, for example, that a law firm shared by dozens of NFL players purportedly coached the players on how to fail a neurological test.  A review of the post-NFL lives of some players who claimed themselves to be too cognitively impaired to work did, in fact, work – as motivational speakers, coaches, bankers, etc.

However, no one is fully certain about the effects of football on the brain. In April 2018, former 19-year NFL player Brett Favre spoke of whether his forgetfulness was because of he is aging, as he is 48, or, “do I have [the] early stages of CTE?  I don’t know.”  Research and news have made brain injury and football seem to always coincide, so Favre’s personal questioning is understandable.  Just as was noted in this website’s article related to Shaken Baby Syndrome though, the horrific easy answer isn’t always correct.  Whether or not the news about the CTE-football connection affects a state’s or a school district’s decision on whether to continue to offer football, whether schools stricken their football rules, and whether a parent chooses to allow their child to play the sport rests solely on them.