Severe Brain Injury, Disability, and the Law: Achieving Justice for a Marginalized Population

Abstract

Thousands of persons with severe brain injury who are minimally conscious or “locked in” are wrongly treated as if they are unconscious. Such individuals are unable to advocate for themselves and are typically segregated from society in hospitals or nursing homes. As a result, they constitute a class of persons who often lack access to adequate medical care, rehabilitation, and assistive devices that could aid them in communication and recovery. While this problem is often approached from a medical or scientific point of view, here we frame it as a legal issue amenable to legal remedies. This Article comprehensively explores and analyzes sources of federal, state, and international human rights law that can be leveraged — both in traditional and novel ways — to improve the lives and protect the rights of persons with severe brain injury. We argue that state laws may be the most promising basis for legal action to ameliorate the clinical marginalization and societal neglect faced by persons with severe brain injury, and to promote their recovery and reintegration into their communities.

Keywords: disability, severe brain injury, disorders of consciousness, ADA, ACA, FDA, CRPD, IDEA, tort