Personal Injury-TBI

Brien Roche

The Brain Is Headquarters

1.  HQ

The brain controls everything.  Everything.  Everything.  The brain is a bundle of neurons.  Neurons are small cells that may be very short in size or may be very long.  For instance some are fractions of a millimeter long.  Others may be many feet long.  Any injury to one or more of those neurons impacts the brain’s function.

The spinal cord and brain are surrounded by spinal fluid which is a cushion to protect them from injury.  They are conductors of electricity.  The brain is a soft Jell-O-like material within the skull.  A blow to the head that causes the head to move in one way results in the brain not moving as quickly as the skull. As a result the brain slaps up against the inside walls of the skull.  Some of those walls are ridged. Those ridges can produce injury to the brain. That injury may come in the form of tearing, twisting or stretching. Call or contact us for a free consult.

Defense examiners in brain injury cases will frequently say that the psychological issues, the vestibular issues, the ocular issues are really not evidence of a brain injury but rather they are due to something else. It’s important to keep in mind that the brain is HQ. It controls everything. Therefore the manifestation of injury may be psychological. The manifestation of injury may be mood issues. Manifestation of injury may be cognitive.  Also the manifestation of injury may be vestibular issues.  They are all brain-related. When the defense examiner says that they are not related to the brain injury, it’s important to pin that person down as to what then did cause those symptoms. Presumably the patient didn’t have the symptoms before the injury.  

2.  What is a Brain Injury?

a.  Definitions.

The Virginia State regulations define a traumatic brain injury to a child at 8 V.A.C. 20-81-10 as being an acquired injury to the brain caused by an external physical force resulting in total or partial functional disability or psycho-social impairment or both that adversely affects a child’s educational performance.  Traumatic brain injury  or TBI applies to open or closed head injuries. They can result in impairments in one or more areas such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual and motor abilities; psycho-social behavior; physical functions; information processing; and speech.  Also the Federal Regulations found at 34 C.F.R. 300.8(c)12 offers the same definition.

TBI is also defined in the Clinical Practice Guidelines of the Veterans Administration and the Department of Defense.  The definition has several facets.  One of those components is an alteration in mental state at the time of the injury.  Furthermore the guidelines use the terms concussion and mild to moderate traumatic brain injury interchangeably.

A widely-accepted definition of a mild TBI comes from the American Congress of Rehabilitation Medicine.  It sets forth a definition of a physiological disruption of brain function as seen in loss of consciousness, loss of memory for events, alteration in mental status or focal neurological deficit.

b.  Mild to Moderate Brain Injury

Brain injuries are graded as being mild, moderate or severe.  Each one has specific criteria. Most brain injuries are mild. The term itself is a misnomer. That is, the brain injury itself may be mild but the symptoms may indeed be extremely severe and totally disabling. Don’t be confused by the grading of the injury. What is important is the severity of the symptoms. 

Personal injury attorneys are accustomed to seeing mild to moderate brain injuries with a host of symptoms such as those listed above.

Any person that has suffered a mild to moderate brain injury needs to have an advocate. That is to say the injury prevents the person from doing many ordinary tasks. Therefore they become their own worst enemy. They cannot explain what they have undergone. In addition they cannot carry out tasks given to them. Without an advocate they are adrift.

c.  Loss of Consciousness is not Required

Loss of consciousness at the time of the incident may be important.  It is not a requirement for purposes of a brain injury.  Of course if a person had a loss of consciousness, how would they know that?  All they’d know is that there is a gap in their memory.  If there are no witnesses observing the person, then it’s going to be especially tough to determine if there was any loss of consciousness.  In other words it is well established that a loss of consciousness is not a requirement.  The best evidence of this is Phineas Gage who had a metal bar pierce his brain but had no loss of consciousness.  

Also the Concussion Quick Check by the American Academy of Neurology states that loss of consciousness occurs in less than 10% of the people with concussions.

d.  Personal Injury-TBI Symptoms

The symptoms that may be associated with a concussion or mild to moderate traumatic brain injury are:

• Physical:  headache, nausea, vomiting, dizziness, fatigue, blurred vision, sleep disturbance, sensitivity to light or noise, balance problems, transient neurological abnormalities.
• Cognitive:  attention, concentration, memory, speed of processing, judgment, executive function.
• Behavioral/emotional:  depression, anxiety, agitation, irritability, impulsivity, aggression.
• Sleep:  drowsiness, sleeping less, sleeping more, trouble falling asleep.  See CDC:  “Facts for Physicians – Head’s Up“.

e.  Analogies

•  Most of us wake up in the morning with a full tank of gas.  Those with a brain injury wake up with a quarter tank of gas.  
• Brain injuries frequently are not treated.  The best evidence comes from the spouse who says the other spouse is “not the same person that I married”.
• A brain injury is like a wrongful death.  The plaintiff is not the same person as before the injury.  Something has died.

f. Emotional/Behavioral/Mood Component Frequently Overlooked

Keep in mind the brain is HQ. It controls mood. It controls behavior. The brain controls emotions. That is Frequently overlooked. The injury may be a mood change or behavior change. Some of the frequently reported changes are such things as increased irritability, bad temper, tiredness, depression, rapid mood change, and anxiety. “What are the Disruptive Symptoms of Behavioral Disorders After Traumatic Brain Injury?”, Annals of Physical and Rehabilitation Medicine, 2016; “Traumatic Brain Injury and Mood Disorders”, Mental Health Clinician, November 2020, 10(6):335-345; “The Spectrum of Long-Term Behavioral Disturbances”. 

g. Damage to axons

Damage to the minute axons that number in the billions and comprise the brain may never be known.

h. Damage to Ions

Damage to the ions in the brain resulting in a chemical imbalance may never be known

i. Shearing injury

Shearing injury may never be identified.

j. Blood brain barrier

It’s well documented that head trauma can cause a breach of this barrier. This barrier keeps the brain isolated from certain body fluids that may injure it. If that barrier is broken, then those harmful fluids can enter the brain and cause damage.

k. Delay in symptoms

Recognizing the delayed onset of symptoms.  There may be two stages to a TBI. The initial stage is the injury to the nerve cells. That produces immediate symptoms. The second stage may be the gradual death of these nerve cells. That can progress over a prolonged period of time. In addition, it can produce a significant worsening of those injuries, both in scope and severity.

l. Glasgow Scale

The Glasgow Coma Scale (GCS) is a simple test that measures eye-opening response, best verbal response, and best motor response. The best response to each of those simple tests results in a score of 15. That score does not represent normal neurological functioning. Therefore, the person may well have a mild TBI and obtain a perfect score. The scale is set forth below:

3. Personal Injury-TBI Baseline

It is critical that in order to determine whether or not there is a traumatic brain injury, you set the baseline.  That baseline is going to be determined by:

a.  prior medical records

b.  work performance

c.  standardized tests such as SATs or LSATs

d.  academic performance

e.  testimony from friends and family who knew the person prior to the injury

f.  any published works of the person

g.  any pre-injury information tests, vocabulary tests, verbal comprehension tests.

As part of any post-injury neurological testing, there probably is going to be a repeat of these above-referenced “fund of knowledge” tests.  Those tests are sometimes referred to as “hold” tests because they tend not to be affected by the TBI.  That is, what the person knew pre-injury has not been lost as a result of the injury and is on “hold”.  Assuming that those pre-injury tests and post-injury tests produce much the same results, then that establishes some baseline as to information processing.  That information processing is then further defined by any post-injury tests that were conducted dealing specifically with information processing.  Presumably those post-injury tests dealing with information processing will show the plaintiff at some percentage category that is lower than what you would expect based upon the hold test.

Most defense neuropsychologists do not engage in any attempt to assess the pre-injury baseline.  What they try to argue is that the post-injury test shows that the plaintiff is within normal limits or average.  Average however has a very broad spectrum.  Average can be anywhere from the 26th percentile to the 74th percentile.  Therefore if the plaintiff is now at the 26th percentile and had been at the 74th percentile pre-injury, they may still be within the realm of average but they have also shown a dramatic decrease.

High Functioning Individuals

Cases involving high functioning people can be challenging. There may be no clear cut baseline. These are people who may have been operating at the 95% level and now they are at the 80% level. Therefore academic history, work performance, family interaction all become critical in presenting a case like this.

4.  Prior Medical History

Prior medical history of the plaintiff is critical.  In most cases a prior history of injury to the brain may be a deficit as to proof.  A prior history of concussion however is a known risk factor as to the present symptoms.  In other words what that means is that a person with a prior history of a concussion is probably going to have a worse outcome than someone who has no such prior history.  

5.Personal Injury-TBI Proof

a.  Show the Mechanism of Injury

Pictures at the scene of the injury may show this.  In addition pictures of the actual injury to the plaintiff may show this.  Showing that the injury was to the left side of the head and that’s the part of the brain that is now impacted is important. Demonstrate how sudden acceleration/deceleration causes injury.

b.  Seeing the Injury

Without proof of loss of consciousness, proof of the brain injury is difficult for some people to grasp.  However seeing is believing.

There are a number of tests that allow you to “see” the brain injury.  However you must ask yourself two questions:

i.  How small a defect can the test detect?  Then compare that to the size of a single neuron. Even the most sophisticated radiological study portrays pixels (or its equivalent) that show a total of 5,000 neurons. If the injury however is smaller than those 5,000 neurons but only impacts 1,000 neurons, then it will not show up on the study. 

ii.  Does the test only detect blood?

The standard CT scans and MRIs have limited ability to pick up many of these injuries. The injuries are very minute. These studies only pick up larger defects.

See the blog post on this site entitled Seeing the Brain Injury.

6.Personal Injury-TBI Permanent?

See the blog post on cross-examination of brain injury experts.  

7.Personal Injury-TBI to Minors

Head injuries to minors are especially difficult to deal with because they may not fully manifest themselves for years.  A brain injury to a child may well be a ticking time bomb.  The child may well have normal neurological examinations for years after the injury.  An MRI however taken years later may show an old bleed from this injury.  However over the course of several years the child may develop attention problems, impulse issues, personality changes, hyperactivity, aggression.  These may all be due to the injury.

Therefore it’s critical that with a significant head injury to a child, time must be utilized.  Savage, “Pediatric Traumatic Brain Injury”, Pediatric Rehabilitation, 8:2, 92-103 (2005)

8.  Traumatic Brain Injury – Death

Research has shown an alarming link between traumatic brain injuries and resulting death.  

An interesting article written by Roger Sharp in the October 2022 edition of Trial Magazine points out that brain injuries have the capacity to cause severe injury to other organs and even death. The mechanism of death begins with a stress reaction to the injured brain.  That stress reaction then has a series of consequences. If you suspect that a death has resulted from a traumatic brain injury, then it is critical that you have a forensic pathologist conduct the autopsy and frequently there may be a need for a forensic cardiac pathologist. 

9. Personal Injury-TBI Litigation Considerations

You can’t always “see” the brain injury. Where you can’t see it, then you still need to make it real to the jury. You can do that in a number of ways:

a. Questioning experts

The questioning of your expert or the defense expert to establish the following:

     (i)  Types of injuries that do show up on imaging are such things as displacement, bleeds, tears.

     (ii)  Types of things that do not show up on imaging:

b.  Lay witnesses

Non-expert witnesses may well be your most important weapon.  The lay witness should ideally be likeable, a good storyteller and someone who has had the opportunity to observe the person.  They may be more effective than the expert witnesses.  Typically your plaintiff is not your best lay witness simply due to the nature of the injury.

Fellow employees may be somewhat dangerous.  In other words it may well be that the plaintiff has hidden the injuries from other employees for fear of this impacting employment.

c.  Find the Right Mix of Simple and Complex

It’s a good idea to try to keep your case simple.  Making it too technologically sophisticated may overwhelm a jury.  That is especially the case if they don’t understand how these various tests are conducted and what they mean.  Mixing simple elements with more complex elements is probably the best way to proceed.

d.  Considering Gender

It’s sometimes said that women are three-dimensional and men are one-dimensional.  There is probably some truth in that.  Women tend to have a better grasp of the emotional.  As a result of that they can be highly critical and suspicious of anyone who is overstating the emotional injury.  At the same time they may be very sympathetic if in fact the emotional component of the case is bona fide.

e.  Maximizing the Neuropsychological Data

It is critical to get the raw data that the defense neuropsychologist may have relied upon.

Frequently neuropsychologists hired by the defense do not want to generate or produce their raw data.  That raw data is essentially the questions that were asked.  All they want to give you are the answers.  However the answers without the questions don’t mean anything.  It is critical to get that raw data.

A strong expert designation that expressly says what the baseline is and defines how that baseline was arrived at is critical.  If that baseline is in part based upon standardized tests, then the tests should be identified.  They should reflect that the pre-injury intellectual abilities were in the high average range.  They should define precisely what that numerical range is if you can.  State further that it’s based upon specific scores.  State then what difference in scores may be significant i.e., how many points reflect a true difference.  If that pre-injury score is her baseline and if you know what change in that score would be considered significant, then define that.  Also state what the post-injury percentile the plaintiff falls into.  All of that shows the post-injury change.  This can be displayed graphically by showing information processing ability, both pre-injury and post-injury.

f.  Challenge the Defendant’s Expert Designation

Typically the defense neuropsychologist never establishes a baseline.  Without that baseline, no comparison is possible and therefore the testimony is irrelevant.  Lanham and Misukanis, Determining Change in Cognition Following Brain Injury, Brain Injury Source, Pediatric Issue, Volume 3, Number 3, Summer of 1999;

g.  Relying on Learned Treatises

There are a number of different textbooks and articles that you may want to take a look at.  Some textbooks are Brain Injury Medicine, The Textbook of Traumatic Brain Injury and The Evaluation and Treatment of Mild Traumatic Brain Injury.  Some articles are “Traumatic Brain Injury and Mood Disorders” found in The Mental Health Clinician, November 2020 and “What are the Disruptive Symptoms of Behavioral Disorders After Traumatic Brain Injury” found in the Annals of Physical and Rehabilitation Medicine published in 2016.

h.  Fear of Increased Risk of Exposure to Dementia or Alzheimer’s

A fear of increased risk based upon a physical injury may be a proper element of damage.  However the key is linking the fear to the physical injury. Whether the actual increased risk is real and whether that itself is compensable, is another issue.  “Does Mild Traumatic Brain Injury Increase the Risk of Dementia?”, Journal of Alzheimer’s Disease, August 2020.

i.  The Amount Sued For

Your jury may need assistance in terms of coming up with a number.  The amount sued for may be important.  Using the Wakole Formula may be of much assistance in that regard.

See other pages within this site on brain injury by using the search function and review the pages on Wikipedia.