Trials of brain injuries cases potentially result in substantial jury verdicts. Insurance companies and defense attorney representatives attack liability, the diagnosis, and the magnitude of the impact on a person’s life. Where there is clear liability, the defense vigorously disputes the claimed brain damage.
An attorney representing a person who sustained a concussion confronts special and unique challenges. Concussions are frequently misnamed, “mild” traumatic brain injuries. Your attorney must educate juries about both the mechanism of injury and the ramifications of a so-called invisible injury. Defense counsel will undermine a case if plaintiff's counsel is unprepared to counter with expert testimony and persuasive medical literature. This article addresses the most common approaches and arguments by defense attorneys and insurance companies, and how plaintiff’s attorneys can proactively contradict them. Additionally, the tactics employed by defense counsel and how to refute them are revealed.
Certain themes permeate the approach and strategies by defense counsel in brain injury cases. First, either the plaintiff has sustained no injury at all or his or her injury did not result (proximately caused) from the accident. Defense counsel will attempt to disprove the existence of the injury or its severity with testimony from a hired neurologist, psychiatrist, or neuropsychologist. They will attempt to establish the plaintiff’s difficulties are really the result of some psychological or mental health issue. Most pernicious, they will suggest that the person is malingering or exaggerating his or her injuries just to enhance the value of his or her lawsuit. No one choose to have these life-altering injuries.
Many people expect a loss of consciousness of a person who has suffered a brain injury. This is a fallacy. Loss of consciousness is very rare when a person sustains a concussion, (referred to in medical records as a “mild” traumatic brain injury, MTBI). Defense attorneys will belabor this seemingly inconsequential finding if there has been no reported loss of consciousness. This is immaterial. It is essential plaintiff’s attorney establish, through expert testimony and authoritative medical literature, that a person who has sustained a concussion rarely experiences a loss of consciousness at the time of the accident. Further, if they did lose consciousness, they simply have no recollection. All accepted medical definitions of a concussion, including those by the Centers for Disease Control (CDC) and the American Academy of Neurology, agree there is no requirement of any loss of consciousness to make a diagnosis of MTBI.
Popular culture has led the public to believe a blow to the head is necessary for a person to suffer a brain injury. If there is no evidence plaintiff’s head was struck, the defense case will focus on this fact alone. Counsel must educate the jury about the mechanism of brain injury, which does not require actual contact with the head. The brain is the consistency of Jell-O and slides around in the rough and bony interior of the skull. When the head (and body) experiences acceleration/deceleration forces, the brain collides with the opposite side of the bony interior of the skull, causing a coup/contrecoup injury. It is essential to explain this mechanism with expert testimony, models, animations, or diagrams.
The results of major trauma, including a fractured skull, intracranial bleed, or swelling of brain tissue, are easily observed on neuroradiological studies, and easy for a jury to comprehend this can cause damage to microscopic nerve cells within the brain. When, the CT scan or MRI imaging study are negative, however, the defense will attempt to identify the absence of neurological findings on scans to convince a jury the plaintiff suffered no brain damage.
To effectively counter this argument, an attorney must understand the limitations of neuroradiological studies in the diagnosis of brain injury. A CT, or computerized tomography study, is similar to an X-ray of the brain. It can only depict gross anatomy. These scans are typically administered in the emergency department to rule out the possibility of intracranial bleeding. It is highly unlikely, in cases of mild brain injury, damage to microscopic tissue can be visualized on a CT scan. CT scans will not show these injuries, yet most “mild” brain injuries cause microscopic brain damage, invisible to these scans, but severely debilitating.
An MRI (magnetic resonance image) scan is better at detecting cranial bleeding and is more likely to detect contusions to brain tissue and resulting brain injuries. The MRI has a limited ability to detect these microscopic and often undetectable contusions simply because the imaging is not sensitive enough to document the injury to the nerve fibers that may have been stretched, frayed, or torn.
If the plaintiff’s brain scans are negative, it is essential for plaintiff's counsel to offer testimony from an expert neurologist or radiologist about the limitations of these imaging studies in the diagnosis of mild traumatic brain injury. There is an overabundance of medical literature supporting the known limitations of these scans. Since this may be difficult to comprehend it must be explained to jurors that normal neuro radiological testing does not rule out brain injury, and the scientific underpinnings must be explained. Only then can they comprehend and accept an injury is real though undetectable on these studies.
Often the effects of the brain injury are delayed, as there is a deferred disruption of axons with chemical changes and cell damage which do not occur for hours or days following the initial insult. The consequences of the injury may not become perceptible until patients with TBI return to their home or work environment with increasing cognitive demands.
A patient who has suffered a brain injury may have no symptoms in the emergency department other than a headache. The more severe symptoms of the injury may not appear until later. While this is a normal occurrence and progression, defense counsel will endeavor to argue the plaintiff has not suffered an injury. The plaintiff's medical expert must delineate the progression of brain injury symptoms with reliance on experience and medical literature to refute this defense tactic.
The common belief of substantial trauma as a requisite for brain damage must be refuted and discredited. A biomechanical engineer can establish the forces involved in this incident were sufficient to cause brain injury. The biomechanical engineer can explain why photographs depicting minor damage to a vehicle do not indicate the impact of the forces on the human brain.
The field of biomechanical engineering examines the results of the application of force on the human body and the body’s response. For brain injury cases, the relevant considerations are: How does the head react when a force or load is applied to the body? What is the human tolerance level for the force? It must be proven to the jury’s satisfaction the forces applied to the individual’s brain exceeded his or her tolerance level sufficient to cause brain damage.
Malingering is the intentional production of false or exaggerated symptoms motivated by the desire to obtain financial compensation through litigation. Defense counsel seeks to offer this testimony to imply plaintiff is an imposter and trying to deceive the jury and cheat the legal system. The essence is that plaintiff is lying, is unworthy of belief, and is not entitled to a damage award.
It is recognized the validity of these tests and the opinions based on them are subject to significant challenge. There are no normative studies using actual malingerers. The tests use college students instructed to “simulate” malingering or exaggerate their condition. This is different from real-life and the actual condition of the individual being tested, rendering this sample suspect. Additionally, the cut-off score for determining poor effort is purely arbitrary.
Poor performance can have many causes, such as medication, pain, depression, test-taking anxiety, or poor motivation caused by the brain injury. The test results do not explain or clarify why the individual did poorly.
There are many infirmities with these tests, subject to being manipulated by defense medical examiners. Examiners may claim a passing score is “borderline passing” to diminish the implication of a good result or may claim a particular test administered is a “malingering test,” though it was never intended for that purpose. Defense experts may administer many of these tests with the hope the individual fails one, but neglects to mention the tests the individual passed.
The attorney representing an individual with a brain injury must vigorously object to any purported expert opinion that plaintiff is a liar as this invades the role of jurors. It is for jurors to determine credibility. A purported expert opinion that a brain injury survivor is malingering may deprive a plaintiff of a fair jury trial. The prejudice outweighs any probative value.
Plaintiff’s attorney must counter and refute these tests and opinions by lay witnesses who can accurately and persuasively describe plaintiff both before and after the traumatic event. Treating health care providers are best able to observe and explain the individual’s deficits. It is also important not to paint an exaggeratedly bleak portrait of plaintiff, but introduce evidence of the positive attributes, experiences, and efforts by the individual to overcome and compensate for their injuries, to counter this defense. The plaintiff is not a liar but doing the best he or she can in spite of injuries.
When a plaintiff has suffered a mild traumatic brain injury, plaintiff's counsel can expect to encounter the argument that the injury is not permanent, and plaintiff will recover.
Many individuals develop chronic post-concussive syndrome following a concussion. Studies suggest that over 56 % of individuals suffering a concussion are symptomatic.
The testimony of witnesses who knew the plaintiff before and after his or her accident is critical to refute this defense. Any attorney must seek the identities of these individuals to be called as witnesses and questioned about their pre- and post-accident observations of the injured person.
Every brain injury is unique. It is imperative to demonstrate how well the individual is doing following his or her injury. There must be evidence of the difference for an individual and his or her functioning before the traumatic event. Proof of impairment may be elicited from persons who knew the individual before injury and then can draw a contrast by describing changes observed following the event. These witnesses may be friends, relatives, co-workers, employers, or anyone with an opportunity to interact with the brain injury survivor before and after their injury.
Vigilant attention to detail, knowledge of the medical literature, and careful preparation are essential to counter customary defense themes in the trial of a traumatic brain injury case.
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