Contact us
Main Banner

LEGAL OVERVIEW OF A TRAUMATIC BRAIN INJURY

INTRODUCTION

Traumatic Brain Injuries (TBIs) are serious injuries that impact the life of the victim and the lives of the victim’s family and friends. TBIs can significantly impact the injured victim’s cognitive, physical, and psychological skills. The scope of the harm to the brain can be difficult to determine and is often difficult to prove in court.

TBIs have come to the forefront due to the widespread discussion of injuries in contact sports such as professional Football and Boxing. Studies have found that a remarkable proportion of athletes who played at the highest level develop neurodegenerative diseases as a consequence of a brain injury.

Brain injuries can frequently be deceptive, so it is important to be extra-cautious about any accident that causes a blow to the head.

The implications of traumatic brain injuries and the legal challenges which may arise when attempting to recover compensation for the harm will be discussed herein.

AUTHORITATIVE PUBLICATIONS

The current authoritative publications on Traumatic Brain Injuries (TBIs) are essential when proving the existence of a TBI to a jury. It is important to educate the jurors on the extent of harm caused by a TBI. The following are good resources:

The Center for Disease Control and Prevention (CDC) Reports to Congress, including:

Report to Congress on Traumatic Brain Injury Epidemiology and Rehabilitation: Recommendations for Addressing Critical Gaps (March 2015)

Report to Congress on Traumatic Brain Injury in the United States: Understanding the Public Health Problem among Current and Former Military Personnel (June 2013)

Report to Congress on Mild Traumatic Brain Injury in the United States: Steps to Prevent a Serious Public Health Problem (September 2003)

Traumatic Brain Injury in the United States: A Report to Congress (December 1999)

Litigating Brain Injuries, Vols. 1 and 2, Stern, Bruce. Thomson-West Publishing. 2006.

Neuropsychological Assessment, Lezak, et al., 5th Edition, Oxford University Press. 2012.

The Handbook of Clinical Neuropsychology, Gurd, et al. Oxford University Press. 2012.

The Handbook of Functional Neuroimaging of Cognition. Cabeza, et al, Second Edition.

Plaintiff organizations:

The American Association for Justice (AAJ) has a Traumatic Brain Injury Group that sponsors conferences. www.justice.org.

The North American Brain Injury Society (NABIS) is a society of professionals involved in the issues surrounding brain injury. www.nabis.org.

Defense organizations:

The Defense Research Institute (DRI) sponsors seminars for defense counsel dealing with the issues in traumatic brain injury litigation. www.dri.org.

GUARDIAN AD LITEM

If the brain injury victim has impaired decision-making abilities or is at risk of undue influence from others, then an appointment of a guardian may be considered. In attempting to pursue a lawsuit to recover compensation for the brain injury suffered by injured victim, a guardian ad litem may need to be applied for with the court if it is in the best interest of the client. A guardian ad litem is a temporary form of guardianship that must be appointed to protect the litigant’s best interests during the legal proceeding.

WHAT IS A TRAUMATIC BRAIN INJURY?

A Traumatic Brain Injury is a trauma to the brain caused by an external force, such as a fall, an assault, or a motor vehicle accident. TBI does not include stroke, aneurysm, insufficient oxygen, poisoning, or infections – these are known as non-traumatic brain injuries. Many times non-TBI injuries may cause similar deficits as a TBI.

Traumatic Brain Injury is frequently referred to as the “silent epidemic” because the problems that result from it often are not visible. Traumatic Brain Injury is an injury to the brain characterized by five elements:

1. TBI is an injury to the brain caused by biomechanics forces. TBI is not ischemia or stroke! These forces can be direct or indirect.
2. TBI results in regional and temporal cellular alterations and may produce cell death. The victim may not see the effects of the injury for a couple of weeks.
3. TBI produces a state of energy crisis and subsequent metabolic diaschisis.
4. TBI changes the priorities for fuel in the victim’s body.
5. TBI can contribute to the acquisition of Post Traumatic Stress Disorder (PTSD) and more chronic neurological degeneration related diseases.

Generally, a traumatic brain injury is a non-degenerative, non-congenital injury to the brain caused by an external mechanical force, potentially leading to permanent or temporary impairment of cognitive, physical, and psychosocial functions. This impairment is often accompanied by a diminished or altered state of consciousness. It has also been defined as “an alteration in brain function, or other evidence of brain pathology, caused by an external force.” TBI’s are usually classified by use of the Glasgow Coma Scale as either severe (GCS 3-8), moderate (GCS 9-12), or mild (GCS 13-15).

WHAT PARTS OF THE BRAIN ARE AFFECTED IN A TRAUMATIC BRAIN INJURY?

The brain floats in cerebrospinal fluid within the hard skull cavity. Portions of the interior of the skull against which the brain is situated are irregular and sharp, which is an added danger when the brain impacts the interior of the skull during trauma. The brain cerebrum is an organ with the consistency of gelatin that is situated within the skull. The cerebrum has an outer layer of tissue known as the cerebral cortex which surrounds the gray matter. The cerebrum is sectionalized into main regions known as lobes. The major lobes are the frontal lobe, temporal lobe, parietal lobe, occipital lobe, cerebellum, and brainstem. Each of these lobes controls different brain functions. Each part is susceptible to injury from trauma. Damage to a particular lobe can cause impairment of functions controlled by it. It is also understood that certain lobes are within a network of interconnected structures, and damage to one such structure can affect brain functions controlled by other structures within that network.

The Frontal Lobe is the “filter” – it is the emotional and personal control center for the human-being. Frontal Lobe injuries impact the victim’s personal filter and cognitive functions. The frontal lobe controls attention, motivation, emotional and social control, verbal expression, judgment, spontaneity, problem solving, movement, thinking initiation, reasoning, judgment, behavior, emotions, memory, and speaking. Frontal lobe injury victims display perseveration – repeating a word or phrase insistently or redundantly. The Frontal Lobe is almost always injured due to its large size and its location near the front of the cranium, which is the part of the skull that encloses the brain.

The Temporal Lobe controls the short-term memory, receptive language, comprehension, selective attention, auditory processing, face recognition, behavior, emotions, understanding language, and hearing.

The Parietal Lobe controls touch, spatial orientation, understanding spatial relationships, eye-hand coordination, distinguishing left from right, sensation, and reading.

The Occipital Lobe controls perception, visual procession, vision, color blindness, reading, perception and the recognition of printed words. It is in the very back of the head. This area of the brain is most likely impacted when the victim experiences a sensation described as “seeing stars.”

The Cerebellum is known as the “little brain.” The Cerebellum controls voluntary movement coordination, balance, and fine muscle control.

The Brainstem controls heart rate, breathing, body temperature, blood pressure, heartbeat, alertness, sleep regulation, swallowing food and fluid, digestion, balance and movement. It is automatic – the things we do not think about but we do automatically.

DIFFERENT TYPES OF BRAIN INJURIES: SEVERE, MODERATE, AND MILD

TBIs can be either: severe, moderate, or mild. The severity of the brain injury is determined by a common scale, the Glasglow Coma Scale.

Severe traumatic brain injuries are the easiest to prove. It is defined as a brain injury resulting in loss of consciousness for more than 6 hours and a Glasglow Coma Scale score of 3 to 8.

Moderate traumatic brain injuries have by definition objective signs which serve as evidence to support its existence. A person suffering from a moderate TBI will have lost consciousness for 20 minutes to 6 hours, and score a 9 to 12 on the Glasglow Coma Scale.

Mild traumatic brain injuries (mTBI) have a name that is misleading. A mTBI can have severe impacts on the injured victim’s life. Even more, a mTBI cannot always be seen using standard imaging devices such as an MRI or CT scan. The Report to Congress on Mild Traumatic Brain Injuries by the Center for Disease Control and Prevention (CDC) states that the impact of a mild traumatic brain injury is in fact not “mild.” The report also states that a mild traumatic brain injury is a serious public health problem and there is evidence that these injuries can cause significant life-long impairment. Moreover, the U.S. Department of Health and Human Services states that mild traumatic brain injuries have an impact on an individual’s ability cognitively, emotionally, and psychiatrically. The Center for Disease Control also states that 15% of these injuries result in persistent disabling effects. Furthermore, the U.S. Military and the Federal government have conducted many studies and have released many publications discussing the results of explosion blast incidents.

Fortunately, it is possible for people to get better after suffering a Traumatic Brain Injury. But the recovery process may be long and slow. Moreover, even mild traumatic brain injuries can have severe impacts. For example, a concussion is defined as a Mild Traumatic Brain Injury. Once a certain amount of work is impacted on the brain, then a certain flow of potassium is released causing a concussion. There is nothing “mild” about this type of traumatic brain injury. About 75% to 80% of all brain injuries are considered “mild.” There can be lasting harmful effects. The victim may not be able to perform their job functions as they had in the past, which has an impact on the victim’s psyche and the victim’s ability to provide support to family and loved ones. The common signs and symptoms of a concussion include loss of consciousness (LOC), post traumatic amnesia (PTA), headache, confusion, dizziness, fatigue, drowsiness, nausea, vomiting, hypersensitivity to loud noise and bright lights, and irritability. The neurocognitive impairments associated with a concussion include memory impairment, slower reaction time, slower processing speed, poor attention, and poor concentration.

WHAT IS A MILD TRAUMATIC BRAIN INJURY (mTBI)?

The American Congress of Rehabilitation Medicine defines a mild Traumatic Brain Injury (mTBI) as:

A patient with mild traumatic brain injury is a person who has had a traumatically induced physiological disruption of brain function, as manifested by at least one of the following:

1. Any period of loss of consciousness;
2. Any loss of memory for events immediately before or after the accident;
3. Any alteration in mental state at the time of the accident (eg, feeling dazed, disoriented, or confused); and
4. Focal neurological deficit(s) that may or may not be transient; but where the severity of the injury does not exceed the following:
• Loss of consciousness of approximately 30 minutes or less;
• After 30 minutes, an initial Glasgow Coma Scale (GCS) of 13–15; and
• Post-traumatic amnesia (PTA) not greater than 24 hours.

This definition includes:
1. The head being struck,
2. The head striking an object, and
3. The brain undergoing an acceleration/deceleration movement (ie, whiplash) without direct external trauma to the head.

It excludes stroke anoxia, tumor, encephalitis, etc. Computed tomography, magnetic resonance imaging, electroencephalogram, or routine neurological evaluations may be normal. Due to the lack of medical emergency, or the realities of certain medical systems, some patients may not have the above factors medically documented in the acute stage. In such cases, it is appropriate to consider symptomatology that, when linked to a traumatic head injury, can suggest the existence of a mild traumatic brain injury.

In short, the American Congress of Rehabilitation Medicine defines a mTBI as a traumatically induced disruption of brain function, consisting of loss of consciousness or altered mental status, that may have resulted from a blow or no-blow to the head. Other organizations that provide definitions of mTBI include the Centers of Disease Control, the World Health Organization, and the Department of Veterans Affairs.

The Demographics and Clinical Assessment Working Group of the International and Interagency Initiative toward Common Data Elements for Research on Traumatic Brain Injury and Psychological Health formed an expert group who proposed the following definition:

TBI is defined as “an alteration in brain function, or other evidence of brain pathology, caused by an external force.”
a) Alteration in brain function is defined as one of the following clinical signs:
1) Any period of loss of or decreased level of consciousness;
2) Any loss of memory for events immediately before (retrograde amnesia) or after the injury (PTA);
3) Neurologic deficits (weakness, loss of balance, change invision, dyspraxia paresis/plegia (paralysis), sensory loss, aphasia, etc); or
4) Any alteration in mental state at the time of the injury (confusion, disorientation, slowed thinking, etc).
b) or other evidence of brain pathology:
Such evidence may include visual, neuroradiologic or laboratory confirmation of damage to the brain.
c) Caused by an external force may include any of the following events:
1) The head being struck by an object;
2) The head striking an object;
3) The brain undergoing an acceleration/deceleration movement without direct external trauma to the head;
4) A foreign body penetrating the brain;
5) Forces generated from events such as a blast or explosion; or
6) Other force yet to be defined.

Moreover, concussions are considered to be mild Traumatic Brain Injuries. Concussions are caused when the brain receives trauma from an impact, sudden momentum or movement change. The blood vessels in the brain may stretch and cranial nerves may be damaged. A person may or may not experience a brief loss of consciousness (not exceeding 20 minutes). They may remain conscious, but feel “dazed.”

WHAT IS THE MECHANISM OF A TRAUMATIC BRAIN INJURY?

There are two types mechanisms that cause head injuries: a coup injury and a contrecoup injury. Coup and contrecoup injuries are associated with cerebral contusions, a type of traumatic brain injury in which the brain is bruised. The contusion may have resulted from a strong blow to the head, causing the brain to slam against the inside of the skull. A coup injury occurs under the site of the impact from an object. A contrecoup injury occurs on the side opposite the area that was hit and causes the brain to impact the side the of the skull opposite of the point of impact.

A coup-contrecoup injury occurs when the brain ricochets inside the skull, which results in widespread damage to the brain. The brain can be compared to jello, in that when it shakes it will not be in tact.

There are two classifications of traumatic brain injury: open and closed. Open head injury is when the skull is penetrated by an external instrument such as a sharp knife or explosive. Closed head injury is caused by a blunt impact or blow to the head, which more commonly leads to brain damage.

A laceration occurs when there is tearing of the brain, usually from a skull fracture or gunshot wound, ruptures large blood vessels causing bleeding into the brain and subarachnoid space. This can result in hematomas, edema and increased intracranial pressures. Objects like bullets can also ricochet within the skull, which can widen the area of damage.

Hematoma occurs when the wall of a blood vessel, artery, vein, or capillary has been damaged and blood has leaked into tissues where it does not belong. Hematoma is swelling or a mass of blood in the brain caused by a break in a blood vessel. A collection of clotted blood in the brain is usually due to a severe TBI and may be life threatening.

Anoxic brain injury occurs when the brain does not receive any oxygen. Cells in the brain need oxygen to survive and function.

Hypoxic brain injury results when the brain receives some, but not enough oxygen.

WHAT HAPPENS INSIDE THE BRAIN DURING A TRAUMATIC BRAIN INJURY?

Traumatic Brain Injuries are either diffuse or focal.

Diffuse injuries are characterized by microscopic damage to many areas of the brain; whereas, focal injuries occur in a specific location of the brain.

Focal injuries with localized damage to the brain may result when the brain bounces against the skull. The areas of the brain that are most likely affected by focal injury are the brainstem, frontal lobe, and temporal lobes because their locations are close to bony protrusions.

As a result of the traumatic brain injury, the brain may experience: chemical cascade, energy crisis, and diffuse axonal injury.

Diffuse Axonal Injury (DAI) is one of the most common and devastating types of TBIs. The damage is done in the form of lesions in white matter tracts over large areas. DAI occurs when the nerve cells in the brain are torn apart. Diffuse axonal injury is the “hallmark” of mTBI and concussion. However, diffuse axonal injury can occur in every degree of severity, and with severe DAI, the outcome is often a coma with over 90 percent of patients never regaining consciousness. Those who do are usually significantly impaired. DAIs are often the result of traumatic shearing forces or strong rotational forces, which occur when the head is accelerated or decelerated very quickly, such as in car accidents. The unmoving brain lags behind the movement of the skull, causing the brain to tear. When there is extensive tearing of nerve tissue throughout the brain, the brain’s regular communication and chemical processes can be disrupted. This “chemical cascade” can cause additional injury.

Damage to neuronal firing in the brain can also result. The brain is comprised of billions of cells. The basic cell is the neuron, which conducts electrochemical impulses that transmit information in the brain and throughout the central nervous system. Neurons are comprised of the cell nucleus with multiple branching dendrites that receive information from other neurons, and the axon that carries the electrical nerve impulses for transmission to connecting neurons. Information from one neuron flows to another neuron across a synapse. The synapse contains a small gap separating neurons. The synapse consists of: a presynaptic ending that contains neurotransmitters, mitochondria and other cell organelles.

Abnormal neuronal firing can occur when the signals between neurons are disrupted. This occurs when there is “axonal shearing” which involves the connection of the axon being “sheared” from the cell body by trauma forces.

As a result of the damage to neuronal firing, the symptoms of Diffuse Axonal Injury include slow mental processing, in which the injured victim requires increased time to hear what is being said, increased time to process that information, and increased time to formulate and articulate a response.

Image of Neuron and Synapse:

MEDICAL TESTING

The Glasgow Coma Scale (GCS) is a neurological scale used to objectively record the conscious state of a person, often by first responders to head injuries to determine level of consciousness. However, it not that useful after the initial assessment of the injury because brain function fluctuates and changes across time. GCS is also affected by alcohol and drugs. The GCS is a quick assessment of the level of brain function at a single moment. Unfortunately, the GCS cannot tell if the injury is mild, moderate, or severe.

The Glasgow Coma Scale score for a patient is based upon clinical assessment at the time of the injury. It is a 15 point assessment of eye-opening response, verbal response, and motor response. The accuracy of the results of the assessment depends upon when and by whom it was conducted. This classification system can be misleading as all traumatic injuries to the brain are serious and even those classified as “mild” under this system can result in catastrophic and life-long consequences.

The Rancho Los Amigos Levels of Cognitive Functioning Scale is another test. While the Glasgow Coma Scale will be the first tool used, it is not useful after the initial injury. When the injured victim emerges from his coma, the Rancho Los Amigos Scale is used. The Rancho Los Amigos Scale measures the levels of awareness, cognition, behavior and interaction with the environment on an eight level scale. The rate at which an injured victim progresses from level to level after coma emergence is difficult to predict, as every brain injury is unique. Sometimes the admission criteria for a rehabilitation facility is based on the Rancho scale.

COMMON SYMPTOMS

The large number of possible symptoms of TBIs makes the injury difficult to really understand. Having any combination of these symptoms may be indicative of a TBI. Common symptoms include:

NEUROLOGICAL SYMPTOMS: Nausea, dizziness, balance, headaches, fatigue, sleep disturbance, musculoskeletal issues such as TMJ, neck and back pain.

SENSORY SYMPTOMS: Pain, altered or absent taste/smell (geusia/olfaction), changes in hearing (e.g. tinnitus), changes in vision (e.g. scanning, perception, reading comprehension).

COGNITIVE SYMPTOMS: Amnesia, inability to speak or understand language, mental confusion, difficulty concentrating, difficulty thinking and understanding, inability to create new memories, or inability to recognize common things.

Concussions have a variety of immediate symptoms, including but not limited to: confusion, loss of consciousness, headache, nausea and vomiting, slurred speech, tiredness, balance problems, ringing of the ears, irritability, convulsions, dizziness, and amnesia surrounding the event. Concussion victims also experience delayed symptoms that may not arise for weeks to months. This includes the inability to concentrate, prolonged headaches, disturbed sleep, depression, moodiness, sensitivity to light and sound, feeling sluggish or groggy, prolonged nausea or vomiting, double vision, dilated pupils, slowed reaction times, extreme emotional feelings, loss of sense of smell or taste, or trouble with memory.

Post-traumatic headache (PTH) is defined by the International Headache Society as “a headache developing within seven days of the injury or after regaining consciousness.” The most common PTH resembles a migraine. It is critical to know the location of the pain as well as the type of headache in order to properly provide effective treatment. Medications like anti-inflammatories and pain medicines are generally used in the first few weeks. If headaches persist, preventative medicines like antidepressants, blood pressure pills, and anti-seizure medicine can be used to prevent rebound headaches.

Chronic Traumatic Encephalopathy (CTE) is a progressive degenerative disease of the brain found in people with a history of repetitive brain trauma (often athletes), including symptomatic concussions as well as asymptomatic subconcussive hits to the head that do not cause symptoms.

WHAT IS THE TREATMENT FOR A TRAUMATIC BRAIN INJURY?

In medical terms, there is no single treatment plan that is the same for all Traumatic Brain Injuries. In fact, there is no medication or surgery that can correct a Traumatic Brain Injury. However, the victim can “re-train” their brain and cognitive functions.

Every TBI is different. Children are different than adults. Women are different than men – women have a different bio-mechanical function than men. In fact, women mature faster than men. Therefore, each incident involving a brain injury requires a unique plan of recovery. In general, it takes about 30 days to recover from the first concussion, and about 45 days after the second concussion.

WHAT IS THE RECOVERY AND REHABILITATION PROCESS FOR A TRAUMATIC BRAIN INJURY?

Recovery from a TBI depends on both the severity of the brain injury and the individual himself. Every brain injury is different so recovery can take a few months to even years after the initial injury, and you may never see recovery for some injuries. Initially, recovery is aimed at saving cells and preventing further damage. Acute care is an option that can be very expensive.

Acute care is a branch of secondary health care where a patient receives active but short-term treatment for a severe injury or episode of illness, an urgent medical condition, or during recovery from surgery. In medical terms, care for acute health conditions is the opposite from chronic care, or longer term care.

Outpatient therapy for traumatic brain injury patients can cost from $600.00 to $1,000.00 per day, and hospital-based rehabilitation can cost $8,000.00 a day or more. Those who suffer a traumatic brain injury leading to chronic care or permanent disability will require a substantial verdict or settlement to cover a lifetime of medical expenses and related costs. Costs associated with a traumatic brain injury can ultimately be several million dollars over a lifetime.

To facilitate rehab, a patient will see a neurologist or a rehabilitation physician known as a physiatrist. The neurologist will oversee the care for the patient, in terms of medication and neurological care. The neurologists will also oversee the rehabilitation process.

Patients may also see a rehabilitation physician who combines physical medicine and rehabilitation. Commonly referred to as a physiatrist, this care provider combines neurologists and orthopedics to focus on function and quality of life. Physiatrists can make recommendations that can be the basis for and included in a restorative life care plan.

Physical therapists may be employed if the brain injury is causing physical impairments in the individual. TBI patients may need to retrain their body to move or do something as simple as clenching a fist.

TBIs can impact the injured victim’s ability to speak and communicate. It common to undergo speech therapy. If the TBI hinders the victim’s ability to perform daily living functions, like grooming, the injured victim may see an occupational therapist. Brain injuries harm people in expansive ways, so it is important to know how this all affects the injured victim’s life in order to accurately assert a claim for damages.

WHAT MEDICAL PROVIDERS ARE NEEDED TO DETERMINE A TBI?

Neurological Examination

Following a TBI, an injured victim should see a neurologist for a neurological examination. A neurologist is a medical doctor trained in diagnosing disorders of the brain. The neurologist will evaluate and document the injured victim’s loss of consciousness, amnesia and confusion, and any other symptoms the victim may be experiencing. The neurologist will examine brain function and assess a person’s mental state to determine appropriate medical treatment. A neurologist may recommend a neuropsychological evaluation to assess cognitive status for a neuroradiological examination to quantify the resulting deficits in the victim’s brain function.

Neuropsychological Examination

Neuropsychologists will evaluate the injured victim’s neurological dysfunction. While psychologists will look at the emotional disorder; neuropsychologists will look at the cognitive functions within the brain and conduct testing, which will usually take all day to complete. The test giver must take into all the factors of the testing into consideration when coming to a conclusion. The evaluation can cost thousands of dollars. It is important to to note that the extent of brain injuries are not picked up by an MRI. Neuropsychological testing picks up the nuances of the injury. The neuropsychologist will take an in-depth history, review all medical records, review neuroimaging studies, and conduct numerous standardized tests that measure memory, complex or sequenced tasks, I.Q., reasoning, emotional response, vision, and other brain functions. If possible, the neuropsychologist will compare pre-morbid levels (the victim’s condition preceding the occurrence of symptoms of a disease or disorder) to determine the reduction in brain function due to the TBI.

In the context of litigation, a neuropsychologist plays the role of establishing the presence of a neuropsychological disorder or injury, determining causality related to a specific event/accident, indicating probable prognosis, and advising as to the medical necessity of treatment and disability status.

Likewise, the Defense will also retain a forensic neuropsychologist to determine whether the deficits found are the result of brain impairment from this accident, as opposed to psychological trauma, physical (peripheral) injury, malingering, a pre-existing condition, or some combination of these causes.

Neuroradiological Evaluation

The injured victim will need to undergo various neuroimaging studies. Certain studies will reveal the injured victim’s neuroanatomical abnormalities, as well as cellular and metabolic dysfunction on the microscopic level.

WHAT DIAGNOSTIC TOOLS ARE USED TO VERIFY A TRAUMATIC BRAIN INJURY?

Scientific advances in neuroimaging have enabled objective verification of many of the injuries. However, it is important to note that even so called “mild” traumatic brain injuries may go undetected during emergent care of the acute injury and can still have lifelong debilitating effects.

CT Scan: Computed Tomography is capable of detecting skull fracture and subarachnoid hemorrhage, and can differentiate acute hemorrhage of the parenchyma from edema or swelling. However, a CT Scan is not reliable to show specific deficits related to regional damage to the brain. CT Scans and MRIs are great tools if looking for structure – not for functioning. Many times the CT Scan will come back negative.

Image of CT Scan:

MRI: Magnetic Resonance Imaging is the preferred imaging technique for detecting sub-acute and chronic TBI. However, just like a CT Scan, traditional MRI is not reliable to detect mild TBI microscopic shear injury or metabolic dysfunction on the microscopic level. MRI uses magnetic and radio waves to look at the brain. For brain injuries, one should use a 3.0 Tesla MRI.

MRI Image of Brain:

FLAIR: Fluid Attenuated Inversion Recovery uses a pulse to selectively reduce signal from cerebrospinal fluid (CSF). FLAIR imaging increases the detection of contusions, white matter injuries, and subarachnoid hemorrhages. It also improves the detection of diffuse axonal injuries.

Image of FLAIR:

DTI: Diffusion Tensor Imaging measures the random motion of water molecules in brain tissue. The white matter tracts are clearly shown by DTI. It also shows disruption in those tracts and is an excellent technique for showing diffuse axonal injury. DTI can reveal pathology where a conventional MRI is negative or normal in appearance.

Images of DTI:

SPECT: Single Photon Emission Computed Tomography measures cerebral blood flow in the brain tissue. Measuring blood flow is an indirect measurement of brain metabolism. SPECT is highly sensitive for detecting regional blood flow disturbances in patients with TBI. SPECT is more effective than CT or an MRI when dealing with mild TBI. SPECT also analyzes brain functioning by creating 3-D pictures to look at blood flow to the brain.

Image of SPECT:

PET: Positron Emission Tomography evaluates the glucose metabolism in various regions of the brain. Slowed glucose metabolism indicates neuronal dysfunction in that region of the brain. PET is good for illustrating regional brain dysfunction. Essentially, a PET Scan examines the glucose consumption to analyze the brain functioning. This evaluation can determine if the brain is processing its fuel.

Image of PET:

NeuroQuant: NeuroQuant is an FDA-approved method of analyzing MRI data in measuring brain volume of a patient and comparing it to normal controls. Brain atrophy or shrinkage is associated with damage to the brain. NeuroQuant measures atrophy to various areas of the patient’s brain which can then be correlated to the patient’s TBI symptoms.

EEG: Electroencephalogram detects electrical activity in the brain using electrodes attached to the scalp. Brain cells communicate using electrical impulses at all times, even during sleep, so an EEG can be used to record the impulses.

ENG: Electronystagmography is a diagnostic test to record involuntary movement of the eyes. The test is performed by attaching electrodes around the nose. ENG can also be used to diagnose dizziness by testing the vestibular system.

VNG: Videonystagmography testing is designed to document a person’s ability to follow visual objects with their eyes and see how well their eyes respond to information from the vestibular system. The test also checks the functionality of each ear and if a vestibular deficit is causing dizziness.

When considering the results of a neuropsychological evaluation to look at brain functioning, it is important to take into account the environment of the test taker. Was it noisy? Were there distractions? Is this on par with the day to day environment where there may be distractions and things occurring?

In addition to diagnostic testing, a Neuro Psychiatrist is good to obtain for assessment of any potential injuries. It is important to obtain an expert’s opinion to prove the existence of injuries.

WHAT EXPERTS ARE NEEDED IN A TBI CASE?

It is important to employ experts to support a claim for traumatic brain injury. The existence of the injury, its cause, the extent of the injury, and past and future damages resulting from the injury can each require expert testimony. Without expert testimony, it is unlikely a jury will be persuaded that the existence and extent of the damage is fact. Effective presentation of these expert witnesses is critical to achieving a favorable outcome.

The injured victim’s treatment may include seeing a neurologist, neuropsychologist, and/or a neuroradiologist. Being evaluated by these qualified experts is key to establishing the existence of the injury, the cause of the injury, and the extent of the damage.

In addition to the injured victim’s treating healthcare providers, the injured victim may need to present testimony from the following experts:

A biomechanical engineer will give testimony regarding the mechanical forces generated from a given impact and the probable disruption caused to anatomical regions of the human body. The biomechanical engineer can give an opinion to the jury as to whether or not the subject incident probably caused the victim’s diagnosed traumatic brain injury.

A life care planner will give testimony regarding the current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health needs. The life care planner should be experienced with TBI and understand that TBI is a disease process, not like a normal finite injury process. The expert may be certified in life care planning by the Commission on Health Care Certification

Vocational/Economic experts will give testimony about how the deficits the injured victim is experiencing has and will impact their employment by comparing the victim’s earning capacity before the incident to after. The expert may be certified from the American Board of Vocational Experts, International Association of Rehabilitation, and the American Rehabilitation Economics Association.

An Economist will give testimony about the injured victim’s lost future earning capacity, lost profits, and medical expenses. The economist will be qualified to give an opinion as to the present value of the costs.

WHAT ARE THE DEFENSE STRATEGIES IN A TBI CASE?

During litigation to recover compensation for a brain injury, the Defense Counsel may apply numerous tactics to discredit the victim and the injury. Such strategies include:

Emphasizing the lack of reporting of the brain injury in early medical records,
Emphasizing the fact that the victim may have said they were okay at the scene of the incident,
Emphasizing the fact that the incident may not have been sufficiently violent, or
Emphasizing the fact that there may be a prior history of brain trauma.

In order to refute the fact that there was no early reporting of the brain injury in medical records, Plaintiff’s counsel should introduce publications by the Center for Disease Control, which expressly state that patients must be specifically questioned as to whether they have had an injury or accident. This is important because some patients may not mention the injury-causing accident to their physician at all. The publication can be admitted as evidence if the Plaintiff’s expert establishes it as a reliable authority. The publication can also be used in cross-examination of the Defendant’s expert. The Federal government’s publication may also be admitted by judicial notice.

Defense counsel may also point to prior educational and work records to show there is no serious impact from the alleged brain injury. Defense counsel may claim the injured victim’s doctors are “hoodwinked” and cannot be trusted.

Similarly, Defense counsel will have its retained neuropsychologist testify that the plaintiff had premorbid functioning. Defense counsel will show plaintiff’s poor educational transcripts (such as repeating of grades or failure to obtain a General Education Development diploma or “GED”), occupational levels, present ability measures, and evidence of preexisting deficits (learning disabilities).

The defense will attempt to introduce sub rosa and surveillance evidence to expose an allegedly dishonest plaintiff by using advanced video editing technology to make a truly injured plaintiff appear to be not injured, or less injured. Defense counsel will also attempt to “break down” the injured victim at a video deposition.

Defense counsel may attempt to show that the plaintiff was taking certain medications that can have a “masking” effect which can alter the result or outcome of certain neuropsychological tests and make them faulty. This is an important challenge facing plaintiffs who take certain neuroleptics and antidepressants.

Overall, the Defense counsel may try to show the jury that the injured victim is “malingering” and lying about the injury. However, in order to prove malingering, elements must be satisfied. If injured victim’s own treating physicians have never suspected the victim of malingering, then Plaintiff’s counsel can argue that the treating doctors’ opinions should be persuasive and controlling.

The Defense counsel’s tactics can be overcome if the Plaintiff’s counsel takes the necessary steps to show the jury that the injured victim plaintiff is credible, the event was violent, the mTBI criteria are satisfied, and the impact on the injured victim’s life before as compared to after the injury. Plaintiff’s counsel should also present collateral witnesses and corroborative medical evidence. It is important for the Plaintiff’s counsel to present the case in a way that grabs the jury’s attention to build momentum throughout the trial and to show that the defense is cynical.

WHAT IF THE INJURED VICTIM HAS A PRE-EXISTING CONDITION?

Many times when pursuing a personal injury claim for a traumatic brain injury, the Defense Counsel will try to argue that the plaintiff had a pre-existing condition that included the same symptoms and complaints as the current brain injury that is the subject of the litigation. In doing so, the Defense will attempt to limit the damages recoverable for the plaintiff. In dealing with this argument, the legal doctrines of an “eggshell” plaintiff, exacerbation of a prior condition, and substantial causation are on point. Also important to note, the Federal government’s Acute Concussion Evaluation (ACE) states that prior history of anxiety or depression is a risk factor for protracted recovery. Plaintiff’s Counsel should present to the jury that the injured victim was an unusually susceptible plaintiff and therefore prone to being injured. The foundational legal principle is: “the Defendant takes its Plaintiff as he finds him.” Simply, the Plaintiff should not be prejudiced for being in a condition that makes him more susceptible to being injured.

DEFENSE MEDICAL EXAMS

The Defense will often demand a neuropsychological examination of the injured victim by a neuropsychologist of their choosing to discredit the injured victim. The injured victim will be required to submit to hours of adversarial examination outside the presence of counsel. Audio taping the examination is permissible, but no attorney or third parties are allowed to be present during the examination. Moreover, unless the parties agree, leave of Court is required to obtain a neuropsychological examination. However, a motion shall be granted for good cause, which requires a showing of relevancy and specific facts justifying the discovery.

The parameters of the examination should be clearly defined, either through agreement by counsel or by a Court order. An order helps minimize potential misunderstandings. It is important to establish clear time frames and other limiting parameters to protect the plaintiff’s privacy.

There must be an agreed list of the tests to be performed. The defense is not entitled to a psychological test without a Court order. Any non-standard testing should not be allowed. It is important to consult the victim’s own neuropsychologist on what tests should be agreed to.

The doctor may want to perform the Minnesota Multiphasic Personality Inventory (MMPI) test. However, the MMPI is a bad test. It will come back that the victim is exaggerating the injury. In fact, people with severe brain damage can score high on the test.

Within 30 days of the examination, the plaintiff may demand the neuropsychologist to produce a detailed report setting out the history, the examination findings, test results, diagnosis, prognosis, and conclusions. The defense psychologist’s raw testing data is sent to your psychologist for review, including the scoring, interpretation and computerized print-outs.

DEPOSITION OF DEFENSE EXPERT

To cross examine the defendant’s neuropsychologist, you should research the expert and obtain all their published material because many times they will contradict their own opinions. It is also important to obtain what the defendant’s neuropsychologist believes is authoritative on the issue. If the neuropsychologist refuses to disclose this information at the deposition, it is practical to just look around the deponent’s office to see what publications are in the office and read it into the record during the deposition. Obtain all the defendant’s neuropsychologist’s past depositions and for what party, plaintiff or defendant. Also, Plaintiff’s Counsel should consult with the plaintiff’s expert in order to be prepared for taking the deposition of the defendant’s expert.

In addition, it is always good to question the expert during deposition whether they have played any sports in the past and whether they are aware that injuries can result, that people can get hurt. The rationale is to paint the expert as a “dangerous person to society” because they are reporting people are not hurt when in fact they actually are, for the purpose of being paid money. Also, it is good to question the expert if they have in fact ever seen the Plaintiff and for how long. Many times the doctor may not have even seen or cannot recognize the Plaintiff particularly after time has passed since conducting the examination. The expert should be questioned on how much they are paid per hour – if videotaped, the silence after asking this question is very powerful to the jury. These type of questions should be asked at the end of the deposition so that the expert is not closed-off early on during the deposition.

A powerful line of questioning to ask the expert is:

Is it true that by definition a mild traumatic brain injury will not show up on film?
Loss of consciousness is not required for a traumatic brain injury?
You do not need physical impact to cause traumatic brain injury?
Do you agree that the plaintiff suffered a mild traumatic brain injury?

Essentially, the real argument in a traumatic brain injury litigation is over the residual damage to the injured victim. A residual injury is one that is long-lasting or has a permanent effect on the victim. If the injured victim has lingering or permanent residual injuries, the settlement value or verdict may be higher, particularly if the injury impacts the victim’s ability to earn an income.

A key inquiry in the litigation will be: What is the “industry standard” for believing an expert’s report over the treating physicians? Moreover, during the defense expert’s deposition, the expert should also be questioned about the Hippocratic Oath. Do you owe the Hippocratic Oath to the Plaintiff who you are not in fact treating? The implication is that the expert is being paid big dollars to make up an opinion. Other questions to the expert that should be considered include: Have you ever had your own work peer reviewed by someone above you at any time in your career? Is it okay to disagree with these reports? Has your work ever been disagreed with?

HOW TO PROVIDE DAMAGES: FAMILY MEMBERS AND FRIENDS ARE BETTER TO TESTIFY TO THE BRAIN INJURY VICTIM’S CONDITION

The injured victim is in fact brain injured and may not be able to testify to the full extent of their condition. The family members and friends can testify to the the injured victim’s work ability, affect on life, symptoms and complaints of the injured victim. The family members and friends can also testify as to how the injured victim’s condition also affects them. The family members and friends should be able to tell stories and personal accounts about these facts.

LOSS OF CONSORTIUM CLAIM

If there is a traumatic brain injury and the victim has a spouse, a loss of consortium claim should be asserted. This will allow evidence from the spouse’s perspective admitted into evidence whereas without the loss of consortium claim the same evidence may not be admitted.

WHAT EVIDENCE IS NEEDED TO PROVE A TRAUMATIC BRAIN INJURY?

It can be beneficial to submit the following into evidence:

Accident report
Scene photographs
Ambulance/EMT records and interviews
ER records
Medical records
Prior medical records
Educational records
Employment records
Drug use history, long term prescription abuse (with brain injuries all the psychiatric evidence will be considered relevant such as arrest and conviction records, employment records)
Before vs. after evidence (must show the difference between before the injury and after the injury)
Accident witnesses
Collateral witnesses
Corroborative medical records

PROVING DAMAGES IN TRAUMATIC BRAIN INJURY CASE

The brain is the repository for the soul. The brain controls the emotions. The injured victim may not be able to experience emotions, joy, and passion. The jury must be shown the science behind a mild traumatic brain injury and that it involves sending signals that will never connect. Currently, modern science and medicine do not have a way to show the mis-connections. Therefore, the attorney must be able to convey this to the jury.

Also, when litigating a mild traumatic brain injury case, the defendants must concede that physical impact is not necessary and that loss of consciousness and concussion satisfies the diagnosis of a mild traumatic brain injury. Moreover, mild traumatic brain injury will always have negative MRI and CT Scans by its very definition. The issue then becomes only residual damage.

It is always advisable to only present the injured victim client toward the end of hearing all the witness testimony in the case. Doctors, family members, co-workers, and friends should set the stage before the injured victim’s testimony. TBI cases are generally supported through the testimony of friends and family – as many people as possible who knew the victim before and also knew the victim after the injury, and can therefore testify to the specific problems and changes in the victim’s life. Generally, less testimony from the injured victim may be more in such cases.

Proving damages is different for mild, moderate, and severe traumatic brain injury.

In mild TBI cases, it is critical in the opening statement to explain that it is mild because the doctors chose to define it as such to distinguish it from moderate and severe. But mild traumatic brain injuries can be devastating and catastrophic. The jury must be educated from the beginning why it is called “mild.” After the opening statement, the condition should not be referred to as “mild” throughout the rest of the trial. Instead, plaintiff’s counsel should refer to the injury only as a traumatic brain injury.

Moderate and severe traumatic brain injuries are easier to prove. The key is the future – a lifetime of suffering and damages. Big settlements are not obtained unless there is future harm and damage. For moderate TBIs, the jury must see the films, artist renderings of the films, and walk the jury through the depiction. For severe TBIs, a day in the life video is key to allow the jury to see the impact on the life of the victim.

Large awards are given when there is future attendant services and future pain and suffering. California Civil Jury Instructions CACI 3932 for life expectancy which provides the bases for the calculation for future damages.

Plaintiff’s counsel should also educate the jury on the value of money in society when requesting large awards. Compensation must be provided for the life expectancy of the Plaintiff. The injured victim will suffer every day until their life expectancy. Compare the price of an expensive object or a celebrity who makes large annual earnings as an example of the value of money. Or, consider the comparison to a fighter jet going down, and the pilot is presented with the dilemma to eject and save his life or try to save the expensive jet. The life is more valuable than the expensive jet. Society values a person’s life more. Although these are extreme examples, the comparison to the client’s injury is also an extreme injury because he will suffer for the rest of his life. No human being should have to go through this amount of pain.

In these type of traumatic brain injury cases, a juror who is more educated and intelligent may be a good member of the jury panel because they can understand the value of memory and brain functioning.

FOOTBALL CONCUSSIONS

Concussions are common in athletics, notably football injuries. The athletes in the National Football League (NFL) commonly suffer concussions. In addition, the repetitive more minor head trauma that occurs regularly in football pose the greatest risk to the athletes. The regular impact when playing football increases the chance of the athlete having cognitive dysfunction and brain disease. Concussions may produce unconsciousness or bleeding in or around the brain. During a severe blow or hit, the brain bounces within the cavity, causing neurons (brain cells) to stretch and tear. The primary affected areas are the frontal lobe and temporal lobe.

In 2012 a lawsuit was first brought in the Eastern District of Pennsylvania by the unified NFL players concerning concussions and Chronic Traumatic Encephalopathy (CTE). CTE is a disorder in people who have experienced brain trauma or repeated hits to the head. Its symptoms include many brain related issues including lack of impulse control, aggression, depression, impaired judgment, memory loss, paranoia, confusion and progressive dementia. Petitions have been made to the United States Supreme Court concerning concussions in the NFL. Many times the players in the NFL experienced multiple concussions, but were not provided the proper information regarding the medical terms used by the examining doctors that were hired by the NFL. In the process, many NFL players and their families have been improperly denied benefits.