"Mild" Brain Injury Litigation: Making the Invisible Visible
© David L. Goldin, J.D., M.B.A.

This article deals with how a lawyer handles brain injury litigation, especially those cases in which injuries are characterized as "mild." For the purpose of this discussion, mild brain injury occurs when there is trauma to the brain, but the trauma results in only brief unconsciousness, or none at all; the brain injuries are microscopic and do not show up on standard imaging studies, such as MRI or CT scan; and the survivor appears outwardly "normal." While most people suffering mild traumatic brain injury recover, there is a "miserable minority" (a phrase coined by Ronald M. Ruff, a prominent neuropsychologist in San Francisco), profoundly affected for life. The discussion centers on making the invisible injury visible so a judge and jury understand the reality and severity of the damages to the brain injury survivor (client).

The paradox of an apparently minor trauma causing major injuries and damages must be explained. To accomplish this in a courtroom, it is of utmost importance that credibility of the client, attorney and medical team be established. Without credibility, the reality of the brain injuries will not be believed by those who need to be influenced in the litigation, namely, the opposing party and its insurance company, the judge, and ultimately, the jury.

In these cases, litigation, like rehabilitation, is a marathon, and no one tries to sprint a marathon. What is "invisible" is shown through detailed preparation and presentation. The lawyer must appreciate the cognitive, emotional and physical deficits arising from these injuries. A useful listing of the variety of such deficits has been compiled by Heike Kessler-Heiberg, a speech therapist associated with the Acquired Brain Injury Program at Mesa College in San Diego, and also appears following this article. For the attorney to be knowledgeable about the client’s cognitive, emotional and physical deficits, requires development of an intimate relationship between the attorney, client and client’s family. In the long run, the lawyer will likely see more of the client and his or her family than any other professional.

A form we use to develop this information is provided to the client and also appears following this article.

"Invisible" brain injuries can be made visible to the judge and jury in a variety of ways, all of which depend on thorough education of the jury about the brain. First, for the purpose of this discussion, we will again assume that the structural brain imaging tests, the MRI and CT scan, are normal. We will consider other "proof" of the reality and severity of the brain injuries.

Each of the client’s problems, and the way it affects daily life, must be pinpointed. One way this is accomplished is by the testimony of witnesses who knew the client before he or she was injured and can describe what he or she was like then compared to now. By doing so, the client’s pre-existing condition is compared to post-accident deficits. 

When presenting this evidence, it is important that the jury understand that the law also allows recovery of damages for aggravation of a pre-existing condition. The client who has a condition or disability at the time of the injury is not entitled to recover damages for that, but is entitled to recover damages for any aggravation of such pre-existing condition or disability caused by the injury. This is true even if the condition or disability made the client more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury. Once again, the client’s credibility is central to this issue and if the jury believes that the client is withholding information of pre-existing conditions, this can cause a significant adverse effect on the case.

Brain injuries can also be proven by circumstantial evidence in the form of neuropsychological testing. Neuropsychological testing by a psychologist specializing in this area is how the doctor "feels" the brain, just like an orthopedist palpates a leg for broken bones. This testing is circumstantial evidence to prove that organic damages to the brain have occurred. Neuropsychological testing is used by the neurologist to reinforce the neurologist's opinion that the brain injuries are caused by the trauma. The test results are correlated to those areas of the brain affected by the trauma and the functions of the brain. Neuropsychological testing validates the accuracy of the neurologist’s clinical examination.

Functional brain imaging scans may also be of assistance in showing what is happening in the brain. PET and SPECT scans are imaging studies to look at how the brain works. These scans involve intravenous injection of radioactive tracers to measure cellular/tissue changes based on blood profusion (SPECT) or glucose metabolism (PET) in different areas of the brain as different tasks are performed. PET is more sensitive and more expensive than SPECT. Both these scans show the effect of brain injuries on brain function, as contrasted with standard MRI and CT scans which look at brain structure. The scans are correlated with cognitive, emotional and physical deficits from which the client suffers to confirm the existence of brain injuries consistent with the trauma suffered.

Other advanced MRI tests are becoming available, such as functional MR imaging (fMRI) studies and diffusion tensor imaging. This testing is non-invasive and gives results in real time. While this testing may not yet be sufficiently reliable to be used in court, in the future this may change and we will have additional resources to prove brain injuries that may be otherwise "invisible." (Also brain damage can frequently be seen on autopsy but obviously, for the purpose of proving fair compensation for the client, it is then too late.)

Further, more powerful MRI magnets will be used in the future which will likely provide higher resolution in standard MRI scans. It may also be possible to recode the grayscale in which the image is displayed into a multitude of colors to allow visualization of existing injuries not picked up in black and white.

It is also helpful to the jury to explain "invisible" brain injuries on a conceptual basis. That brain injuries may be "invisible" does not mean they do not exist. Absence of proof is not proof of absence but may simply reflect the lack of sensitivity or specificity of available technology. Before the Hubbell telescope, multitudes of galaxies about which we now know had not been seen before and were "invisible." But these galaxies always existed and not seeing them before certainly was not proof that they did not exist. Similarly, before the invention of the microscope in the 17th Century no one had ever viewed a living cell. The jury should also understand that even standard MRI or CT scans, which show the structure of the brain, do not pick up a variety of other mental conditions affecting the brain, including some of those caused by medicine or drug use, learning disabilities, mental retardation, schizophrenia and other mental illnesses, and even early onset dementia (Alzheimer’s). In fact, 50% of those who are in a coma initially have normal MRI and CT scans.

The biomechanics of the trauma can also make the brain injuries real to the jury. The amount of force sufficient to cause brain injury has been quantified by governmental agencies such as the United States Department of Transportation, National Highway Safety Administration. These studies have been confirmed by other researchers in the field. The forces involved, especially rotational or angular acceleration forces, are shown by these studies to create large shearing effects to the nerve cells in the brain. Serious brain injuries can even occur without a direct blow to the head, such as where the trauma is due to a "whiplash." 

To help explain the biomechanics, it is important that the jury be educated as to the composition of the brain. The living brain is largely a jello-like substance. Axons extend across different layers of the brain from the gray matter (cerebral cortex) to the white matter (subcortical area), and different densities (weights), rigidity and cellular architecture, and are located at varying distances from the center of a given rotation. When there is trauma to the brain, the different layers of the brain slide across each other causing unnatural stresses on the axons. Axons are like wires which connect the brain cell (switch) to the light (where the nerve impulse leaves one cell and enters another). Stretching or tearing an axon causes the nerve impulse not to transmit or to transmit less efficiently. Common cognitive deficits caused by this damaged wiring are difficulty with attention, concentration, and fatigue, along with impaired short-term memory.

The jury also needs to understand why injuries causing so much dysfunction are described as "mild" or "minor" by the medical professionals who treat this condition. The fact of the matter is that mild traumatic brain injury will not, by definition, cause the survivor to die. These injuries are not life threatening in that sense. Furthermore, recovery does occur in 85% to 90% of those who suffer minor trauma to the brain. However, for the 10% to 15% who constitute the "miserable minority," a lifetime of pain and disability may follow. It is imperative the jury be educated by the client’s team of medical treaters and experts as to why the shearing, tearing, stretching, bruising and breaking of the axons causes this diffuse or widespread damage to the brain functions.

Even for the survivor, it is only over time that the reality of brain injuries sinks in. Brain injuries are a process and not an event which occurs in a single moment. When recovery does not take place, sometimes the person suffers such a change in functional abilities and character that he or she becomes a "different" person, certainly a devastating injury from any perspective. Obviously, such negative changes in both the personality of the survivors and what they can do, cause an accompanying psychological depression, and other mood changes, which further worsen the effect of the brain injuries on the client and his or her family. 

Delay in diagnosis can be an obstacle not only to rehabilitation but also to effective legal representation. Often the brain injury survivor does not seek legal representation until long after the evidence is cold. This hampers the preservation of the evidence required to prove both liability and damages in a court setting. Although accurate diagnosis of the long-term effects of mild brain injuries is uncertain at the outset, from both a legal and medical standpoint it is important to appreciate and understand the potential damage that these injuries may cause as soon as possible. An attorney’s involvement at the outset, shortly after the trauma occurs, can be instrumental not only in handling the legal case, but also in coordinating the efforts of the rehabilitation team, and in obtaining funds to pay for it.

1. List of the cognitive, emotional and physical deficits from brain injury
2. Report of Changes and Problems after Brain Injury

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