The Defense and Evaluation of Traumatic Brain Injury Cases

By: Susan Conley, Esq
Arthur Chapman Kettering Smetak and Pikala

In the context of traumatic brain injury cases (TBI), attention has been drawn to these injuries, in part, due to head injuries to athletes. We are seeing cases where athletes sustain a seemingly minor bump on the head and are treated and released by a hospital to cumulative head trauma and in both contexts, we are told that those athletes may or will never return to his sport and have permanent brain damage. It is in this context that work injuries will be viewed, such that mild TBI cases could turn into catastrophic cases. In other words, TBIs are on a continuum ranging from mild concussive symptoms (mild TBI), to prolonged or irreversible coma (severe TBI).

Susan Conley, Esq. will be presenting: Managing and Defending Head/Brain Injuries at the upcoming SEAK National Workers Compensation and Occupational Medicine Conference. She will discuss how brain injuries and head injuries differ and will review the mechanism of a brain injury. She will explain the legal and medical significance of imaging studies, medical records, loss of consciousness, and neuropsychological testing. Attorney Conley will demonstrate, with the use of case studies, the red flags for delayed recovery and return to work after head/brain injuries. She will offer practical suggestions for the effective use of objective findings, test results, and the use of experts for the management and defense of head and brain injuries.

This article is designed to discuss how these cases should be approached and evaluated by claim professionals, risk managers and defense counsel. If one is dealing with the matter where it was initially reported that the claimant at the accident scene lost consciousness, no matter how briefly, or that the plaintiff was dazed, or complaining of memory problems, red flags should go up. It is important to recognize in the early stages following the accident and in early litigation that that you are facing a TBI case.

Discovery is critical in the defense of these cases. The goal is to establish a reliable baseline of the claimant’s functioning prior to the accident. The ultimate basis for this discovery is to establish to the jury or to the court exactly how the claimant was functioning in the months and years prior to the accident.  Through discovery the purpose is to determine if the claimant had numerous problems in his or her functioning prior to the accident, evidenced by poor academic performance, employment problems, psychological issues, the abuse of prescription or non-prescription drugs, social issues, and/or alcohol problems.

Physical symptoms of TBI can include dizziness, periods of blacking outer seizures, problems with coordination of hands feet or legs, stuttering or slurring, change in senses of smell or taste, glory or double vision, ringing in the years, headaches, fatigue, more sensitive to bright light and/or loud noises, and tingling or numbness in the legs and arms. Emotional symptoms can include feeling of sadness and depression, crying spells are weeping us, suicidal thoughts or intentions, decreased or increased emotion, low motivation, decreased or increased appetite, difficulties with sleeping, irritability and feelings of anxiety or fear. There can be aggressive behavior after a head injury. Studies suggest the frequency of aggressive behavior in the acute stage ranges from 11% to 96% in TBI. Patients with aggressive behavior were more likely to have injuries to the frontal lobe. Nonaggressive patients were more likely to have diffuse brain injuries see clinical correlates of aggressive behavior after TBI Tech to know at all, Journal of neural psychiatry and clinical neurosciences 2000 315:155 to 160.

The claimant’s records should be obtained including school, military, and employment records which may contain evidence of pre-morbid functioning levels. These records should include grade-school, middle school, and high school records and testing inclusive of sports testing.  ACT/SAT scores should be obtained. It should be determined if the claimant had any type of plan to assist with studies or if any special testing accommodations were provided.  Psychological records/testing may have been done at the school and need to be retrieved, if possible.

All of the claimant or plaintiff’s pre-accident medical records should be obtained starting with the family practitioner. One should be able to find referrals to other physicians, as well as insight into how the claimant was functioning in his or her younger years. From the family practitioner one should then move forward to OB — GYN, orthopedist, neurologists, internists, rheumatologists and any medical specialty that exists. These records must be obtained and carefully reviewed. Within these medical records, there may be references to hospitals or other facilities where the claimant received care. Do not forget to include obtaining a history of chemical dependency treatment and/or any mental health or psychological treatment or hospitalizations.

The claimant may have had a past history of depression or other psychiatric problem, these conditions must be explored because many symptoms that are generated by a mental health condition can mimic the symptoms that plaintiffs contend they are suffering from after a traumatic brain injury. It is typically reported by plaintiffs suffering from mild brain injuries that they are suffering from emotional distress, lack of ability to concentrate, headaches, depression, and memory problems. If the claimant had ever been treated for depression in the past or for any other psychiatric issue, many of the same conditions will have been reported to healthcare professionals.

In reviewing the medical records, one may find that the claimant had a prior head injury playing football or soccer or from some other accident. This finding can be used to diminish the plaintiff’s case because any expert should acknowledge, that the damage from brain injuries can be cumulative and a past pre-injury brain injury may, in fact, explain the symptoms of which the claimant is complaining. The expert may also admit that it is virtually impossible to determine which injury caused which symptom.  However, keep in mind, as technology advances, and if neuropsychiatric testing has been done, plaintiff’s expert will likely testify he/she is able to correlate a temporal relationship.

In the records, you also want to look for a history of drug or alcohol abuse. This is an extremely important finding because it can be used to argue that many of the symptoms that plaintiff is complaining about as a result of the accident, are in fact, related to addiction problems, as opposed to a brain injury.

As discussed above, childhood records cannot be overlooked. Not only should one look for records in their teenage years and 20s, one should also obtain the birth records. These birth records may reveal complications in utero or at birth and may explain some of the symptoms. In addition, it would be important to obtain genetic testing, if done, to ascertain if there were any complications, abnormalities or problems that may account for current symptoms. In the end, the goal is to have as complete a picture of the plaintiff/claimant prior to the accident.

It is equally important to obtain post-accident medical records. Whether it is a car accident, a slip and fall, industrial accident, or any other occurrence, the defense lawyer must know the details of the event. The following information should be uncovered and evaluated: the nature of the accident, if a motor vehicle accident, the speed should be determined, was it a rear-end, head-on collision or side impact, witness statements, photos, EMT reports and observations, and accompanying physical injuries should be obtained.

The EMS records often reveal a plaintiff who is able to give the medical technician a thorough history, including the exact facts of how the accident happened. However, a year after the accident, when claimant is deposed, he or she reports in the deposition no memory of the event. While such a scenario may be true, in all likelihood, it has nothing to do with a TBI. There is one caveat, in rare circumstances, an individual may sustain a blow to the head and sustained no loss of consciousness but later develops a bleed into the brain which can cause anything from minor brain damage to death.  The history that is given to the EMS technician is frequently repeated in the emergency room to the nurses and doctors at first to see the claimant. These records may conflict with the plaintiff’s reports to his own medical experts and to defense lawyers in his or her deposition.

When evaluating a TBI, doctors will look for whether the pupils are dilated, can they spell world backwards, they will ask the patient to count backwards from 100 by sevens, the patient will be asked to remember 3/5 random words 30 minutes later as well as the name and address and telephone numbers of friends and some family members.

In a diffuse axonal injury the acceleration/deceleration can cause a sharing of axons known as diffuse axonal injury. Swelling and then regression or atrophy of the axons can occur with possible hematomas.

The other critical piece of discovery is to obtain copies of all scans and testing, blood, and neuropsychiatric.  In dramatic brain injury S-100 is a protein that is created after nerve cells in the brain following an injury.  90% of individuals with cranial injury had elevated S-100 protein serum levels. Ingebrightsen et al., “The clinical value of serum-100 protein measurements in minor head injury”, a Scandinavian multicenter study. Brain Injury 2000, 14 (12):1047 – 1055.

Testing can include CT scan, MRI, EEG, PET- positron emission tomography, SPECT-single-photon emission CT, BAER- brainstem auditory evoked responses, Brain Mapping and PS ASAT- paced auditory serial addition test.

It may be necessary to obtain a radiologist or neuroradiologist to evaluate these films. In cases involving elderly claimants, the studies of the brain are critical and may reveal pre-existing problems that could explain many of the symptoms that plaintiff complains of after the accident. In one case we had, a review of the MRI by our neurologist which demonstrated that the claimant had a pre-existing atrophy that had an impact on her cognitive functioning.

Another valuable source for establishing a baseline for plaintiff’s pre-accident functioning are in employment records. Employment records may reveal significant problems in functioning. They may show financial or other stressors in his or her life that could have an impact on the reliability of neuropsychological testing. Included in the employment records may be military records or an indication that the individual was in the military. Strong consideration should be given to obtaining the complete military file which may contain useful information to establish baseline performance. Employment records typically will reveal names of colleagues who may be interviewed to assist in establishing a comprehensive baseline.

Another source for defending these cases is to use social media. This would include the Internet, Websites, MySpace, Facebook, Twitter and the like. The ability to learn things about the employee or claimant may be valuable in the defense of the case and should not be overlooked.

Records that are a must or to obtain the raw data generated by the plaintiffs neuropsychologist or new or old psychiatrist. The plaintiff’s neuropsychologist will often contest a request for these records contending that the tested raw data are confidential and/or proprietary in nature and therefore cannot be released to the defense lawyer. However, plaintiff’s neuropsychologist typically releases material to the defense neuropsychologist, however, if there is continued objection to releasing these records, a motion to compel must be filed.

In these cases, careful consideration must be given to having the following experts involved in the defense of these cases including: a neurosurgeon/neurologist, a neuroradiologist, and a psychologist. The neurologist/neurosurgeon will diagnose injury, and the nature of the injury, the neuroradiologist can confirm findings on the Scans, and the neuropsychologist can determine whether the injury caused cognitive impairment, impaired memory (frontal lobe), impaired auditory memory (frontal lobe).  At times, depending upon the claimant’s emotional state, or claims, a psychologist or psychiatrist may be warranted. Each of these experts has unique expertise and while they overlap, they are very different from one another. It is critical that the defense team analyze the expert needs quickly. It is necessary to secure experts with impeccable credentials. It should be determined whether to obtain an independent neuropsychological assessment versus simply relying upon a consulting expert. This will be dependant upon claimant’s neuropsychiatric evaluation and its credibility.

Another expert to consider is a Biomechanical expert. Biomechanics experts can have degrees in both engineering and medicine. Arguably, the combination of these specialties allows for the engineer/doctor to determine the amount of force imparted to the skull from a particular accident. There are numerous studies offering insight into certain type of injuries occurring with certain force parameters. This strategy has been used for many years and low-speed automotive cases and may be equally effective in an alleged brain injury case.

These cases are complex in nature and require a defense team knowledgeable in the areas of the law and medicine. Defending these cases is not easy and will require vast amounts of time and energy to process the information. However, with thorough preparation and adequate discovery, these cases can be evaluated and the claim-legal defense team can determine which cases should be settled quickly and which should be tried.

Susan Conley, Esq. has been practicing law for over 20 years in the areas of workers’ compensation and general liability. Prior to joining Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Sue was a Senior Trial Attorney for Liberty Mutual Insurance Company. She has represented insured employers in all aspects of workers’ compensation litigation. She has also represented clients in various liability cases, including motor vehicle, fire litigation, products liability, and premises liability. Sue has lectured on the subject of workers’ compensation, presenting seminars for the Workers’ Compensation Continuing Legal Education, Lorman Business Center, and numerous clients. She has been requested to speak at on-site seminars for General Mills and Darden Restaurants, as well as a National Retailers Seminar at the Mall of America. Sue has a successful record in both trying cases at the Office of Administrative Hearings and arguing cases before the Workers’ Compensation Court of Appeals.