By: Christopher Donegan, Esq.
Between 2000 and 2006, an estimated 1.7 million people annually reported sustaining a traumatic brain injury (“TBI”), of which 52,000 people died, 275,000 were hospitalized and the remaining 1,373,000 were treated at their local emergency room and released without incident.1 According to the Centers for Disease Control and Prevention, commonly known as the CDC, reported cases of TBIs have increased steadily over the past 10 years.2 The reason for this increase is not exactly known. Some experts attribute it to over-diagnosis while others credit it to emergency rooms being better equipped to accurately diagnosis a TBI. Whatever the cause for the increase in these diagnoses, one thing is for certain, TBI claims are on the rise and they carry with them potential damages ranging anywhere from $85,000 for a mild TBI to $3 million for a severe one.3 In 2000, it was estimated that direct and indirect costs associated with TBIs in the United States topped an estimated $60 billion.4
Whether dealing with a misdiagnosis or a real TBI claim, the bottom line to effectively handle these high value cases is to follow the old adage “knowledge is power.” This article is going to walk readers through the initial evaluation of a TBI case starting with how to identify its leading causes and symptoms. It will then discuss why it is important to establish a baseline comparison of the plaintiff’s cognitive function. Finally, it will conclude with a brief discussion of the techniques to use to determine whether you are dealing with a genuine TBI claim and how to deal with the plaintiff’s claims during deposition.
IDENTIFYING A TBI
When the average person hears the term “traumatic brain injury,” the image of Muhammad Ali or Steve Young might come to mind – both professional athletes whose livelihoods involved blows to the head. The image less likely to be thought of, but far more common, is the grandmother that slips on the sidewalk or the two-year-old that bumps into the coffee table reaching for that favorite toy. Thanks to a very liberal definition, however, a TBI can be classified as almost any contact that potentially causes a bump, blow, jolt or a penetrating injury that disrupts the normal function of the brain ranging in severity from mild to severe.5
The greatest causes of TBIs across all age groups, and in both genders, are simple slip and falls – which accounted for about 35% of all reported cases occurring between 2002 and 2006.6 The leading cause of TBI related deaths during this same time period is motor-vehicle injuries – which accounted for about 17% of all reported TBI cases.7 About 75% of all TBIs each year are classified concussions or mild traumatic brain injuries with a high probability of complete recovery.8
COMMON SYMPTOMS OF A MILD TBI INCLUDE: 9
COMMON SYMPTOMS OF A MODERATE TO SEVERE TBI INCLUDE THOSE LISTED ABOVE FOR A MILD TBI, AS WELL AS: 10
COMMON SYMPTOMS OF A TBI IN YOUNG CHILDREN WHO ARE UNABLE TO COMMUNICATE INCLUDE: 11
BASELINE COMPARISON AND MEDICAL RECORDS
When a plaintiff presents with symptoms of a TBI, whether mild or severe, the first step in the evaluation process is to establish the plaintiff’s baseline cognitive functioning. Here you are looking for anything that depicts the plaintiff’s abilities prior to the alleged TBI, which can then be compared with the abilities they have claimed to have lost as a result of the accident. A common TBI claim is an alleged personality change not previously present prior to the accident. Good places to look for these records are:
Next, you want to look for any pre-existing injuries the plaintiff may have suffered to the head, such as injuries incurred in any prior automobile accidents, sports injuries, and/or illnesses linked to cognitive dysfunction. If you are able to find a pre-existing condition, the plaintiff’s experts will have to acknowledge that damages from brain injuries are cumulative, that the past brain injury may explain the plaintiff’s current symptoms, and that it is virtually impossible to determine which injury caused which symptom. Other conditions to be on the lookout for are drug and alcohol addictions. If present, defense counsel might argue that the plaintiff’s symptoms are connected to his or her addiction and not the subject accident.
EVALUATION AND THE PLAINTIFF’S DEPOSITION
Besides comparing the plaintiff to their baseline and analyzing their medical records, it is important to examine the scene of the alleged accident and interview witnesses to determine whether there was the potential for a TBI. When looking at the scene, defense counsel should try to locate evidence demonstrating the nature of the accident (i.e., rear-end, T-Bone, side-swipe collision), the amount of property damage that resulted, and the speeds involved. The focus should be on whether there was the potential for the plaintiff to strike his or her head, or be restrained in such a way that their own inertia would cause a jolt. As a practice tip, an accident reconstructionist can provide valuable insight into whether there was the potential for the plaintiff to experience a bump, blow or jolt that could have resulted in a TBI.
When questioning potential witnesses, the focus should be on what he or she recalls about the plaintiff after the accident, such as any particular body part the plaintiff complained was injured, or if the plaintiff lost consciousness or was unable to communicate and/or control their body movements.12 While symptoms of a TBI do not always present immediately, evidence that the plaintiff did not appear dazed, injured or confused can go a long way in convincing a jury that any alleged injury occurred after the fact, if at all.
The best place to seek this information is in the emergency medical services (“EMS”) and police reports. When looking at the EMS report, defense counsel will want to see whether the plaintiff was able to give a complete medical history and whether they could recall exact facts of the accident. As for police reports, while not usually admissible, they can contain valuable information such as names of potential witnesses, the nature of the accident, and the extent of property damage and speed involved.
A common problem in evaluating whether a plaintiff has suffered from a TBI is malingering, the medical term for fabricating or exaggerating symptoms. To reveal when a plaintiff is malingering you must remember time is your friend, so plan on prolonging the plaintiff’s deposition. Defense counsel might want to start by taking the plaintiff as far back in his or her memory as possible, and then slowly move forward. This will place the plaintiff at ease, and by the time he or she is being questioned about the subject accident and injury, they may be more likely to reveal any inconsistencies in their story.
By prolonging the testimony, the plaintiff may be placed in a position where maintaining the fabrication or exaggeration becomes both mentally and physically exhausting, thus creating more opportunities for him or her to make a mistake or reveal their malingering. In some cases, it may be beneficial to videotape the plaintiff’s deposition, which will allow you to catch incidents where the plaintiff slipped out of character, and which may also give the defense experts something to evaluate and compare to other surveillance of the plaintiff.
The final step in effectively defending a TBI claim is retaining the right experts to help build the defense. When evaluating experts, it important to look to the experts’ specialties and to try to match the experts’ qualifications to the plaintiff’s claims. For instance, if the case involves a child plaintiff, experts that specialize in pediatrics may be utilized. Potential TBI experts include:
As a practice tip, defense counsel should always obtain the raw data generated by the plaintiff’s experts during neuropsychological tests. This is important because over-interpretation of the raw data is a frequent problem. It is also beneficial to retain similarly qualified experts, and to have all the raw testing data and radiological films interpreted by a defense expert. In addition, defense counsel should confer with the defense experts as to their opinions on the reliability of questionable radiological testing (i.e., PET scans) and whether different medications might have had an impact on the test results.
TBI claims are difficult to defend because of the lack of an examination that can definitively diagnosis a TBI and because the medical community still has no idea what the long-term effects are for a mild to moderate TBI.13 Rampant malingering and over-diagnosis have only complicated the matter. Hopefully this article has helped to shed some light on the basic concepts involved in defending TBI claims.
1 Faul M, Xu L, Wald MM, Coronado VG. Traumatic Brain Injury in the United States: Emergency Department Visits, Hospitalizations and Deaths 2002–2006. Atlanta (GA): Centers for Disease Control and Prevention, National Center for Injury Prevention and Control; 2010.
2 Finkelstein E, Corso P, Miller T and Associates. The Incidence and Economic Burden of Injuries in the United States. New York (NY): Oxford University Press; 2006.
3 Craig M. Kabatchnick, The TBI Impact: The Truth About Traumatic Brain Injuries and Their Indeterminate Effects on Elderly, Minority, and Female Veterans of All Wars, 11 Marq. Elder’s Advisor 81, 102 (2009).
4 Finkelstein, supra note 2.
5 CDC analyzed existing national data sets for its report, Traumatic Brain Injury in the United States: Emergency Department Visits, Hospitalizations and Deaths 2002–2006. CDC’s National Center for Injury Prevention and Control funds 30 states to conduct TBI surveillance through the CORE State Injury Program. TBI-related death and hospitalization data submitted by participating CORE states are published in CDC’s State Injury Indicators Report.
9 Traumatic Brain Injuries, http://www.mayoclinic.com/health/traumatic-brain-injury/DS00552/DSECTION=symptoms (last visited October 13, 2012).
12 Traumatic Brain Injuries, http://www.mayoclinic.com/health/traumatic-brain-injury/DS00552/DSECTION=tests-and-diagnosis (last visited October 13, 2012).
13 Report to Congress on Mild Traumatic Brain Injury in the United States: Steps to Prevent a Serious Public Health Problem. Atlanta (GA): Centers for Disease Control and Prevention, National Center for Injury Prevention and Control; 2003.
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