Brain Injury Lawyer

The International Brain Injury Association has announced the call for abstracts for the 10th World Congress on Brain Injury, which will take place on March 19-23, 2014 in San Francisco. The call for abstracts is posted on the IBIA website and will be echoed in the next issue of the International Neuro Trauma Letter.
 

Health Day News recently issued a story on a study published in NeuroRehabilitation in which the author Jhon Alexander Moreno, a neuropsychologist at the University of Miami, analyzed the results of fourteen studies that together included almost fifteen hundred patients, spouses, partners, and people without traumatic brain injury as well as rehabilitation professionals.  According to Health Day News, which reported on the study, “the study found that 50% to 60% of people with TBI have sexual difficulties, such as reduced interest in sex, erectile dysfunction, and pain during sex, difficulties in vagina lubrication, difficulties achieving orgasm or staying aroused, and a sense of diminished sex appeal.”  Both the research found that partners of those with TBI experience personality and emotional changes, and a modification of family roles that can lead to a crisis….  For the spouse, the survivor becomes a different person, a person they do not recognize as the one they fell in love with in the past.  The spouse becomes a caregiver and this imbalance in the relationship directly affects sexual desire.”  According to Dr. Moreno, marital separation rates can be as high as 78% among people with traumatic brain injury.” 

For more information, click here.

Researchers in Australia and Cincinnati utilized diffusion tensor imaging (DTI) to examine the long‑term alterations in white matter microstructure following traumatic brain injury in adolescents.  The researchers utilized DTI in this study, noting that rotational and shearing forces associated with traumatic brain injury often result in multi‑focal and diffuse axonal injuries which are not evident on CT scans or conventional T1 or T2 weighted MRI. 

The researchers used adolescents between the ages of 12‑17 who had been hospitalized overnight with confirmed TBI.  The injury classifications were defined by values of the Glasgow Coma Scale.  All participants were at least twelve months post‑injury to ensure that acute recovery was complete.  A comparison group of typically‑developing adolescents with no history of TBI or other neurological insults were recruited from the community.  Groups were matched by age, gender, and maternal education.  Subjects with significant development delay, significant psychiatric or behavioral disturbance prior to injury and extreme vision or hearing impairments were excluded.  Study neuropsychological data and MR imaging were acquired in the chronic phase. 

Seventeen adolescents with traumatic brain injury and thirteen controls consented and produced usable imaging data.  The TBI control group did not differ on measures of general intellectual ability, although there was a trend for poor performance for word reading (Wrat‑4) in the TBI group.  Adolescents with TBI had significantly higher behavioral ratings of executive dysfunction. 

There were also group differences in DTI variables.  Group comparison of the DTI variables identified several regions of elevated axial diffusivity (AD) in the TBI group across white matter.  All clusters were lateralized to the right hemisphere.  To “more fully understand the genesis of the right lateralized findings, the study examined the pattern of white and gray matter injuries found in the imaging review.  Of the eight participants that had identifiable parenchymal damage, each had at least one site of damage in the right hemisphere at either the sub‑acute or late state of TBI. 

The researchers also investigated the association between white matter microstructure and neuropsychological performance. 

The researchers found that consistent with their hypothesis, regions of elevated white matter diffusivity were found in adolescents with TBI more than twelve months after the initial injury.  The finding of increased pain diffusivity in the TBI group was suggestive of demyelination and axonal death that occurs with traumatic brain injury.  The increase of axonal diffusivity for adolescents with chronic TBI agrees with cross‑sectional studies of chronic injury that reported increased axial diffusivity in patients compared to controls. 

The researchers concluded “this study augments the existing literature of DTI study of TBI by reporting abnormal white matter microstructure determined by DTI matrices as well as their association with cognitive functioning in a cohort of adolescents who sustained mostly complicated mild or minor TBI...  This study also presented evidence for the association between the elevated axial diffusivity, and the processing speed and executive function in the TBI group providing a snapshot of white matter track recovery and its relationship with neuropsychological variables in chronic TBI.”  Brain Injury, April 2013; 27(4):454-463.

Forensic courtroom doctors hired by the defense to attack the scientific admissibility of diffusion tensor imaging (DTI) often argue that DTI is only acceptable in research and has no clinical use.  As such, DTI should not be admitted in civil actions. 

A new article in the latest issue of Neurosurgical Focus describes the use of DTI at the Perlman School of Medicine at the University of Pennsylvania who are using DTI to create a “virtual intra operative map and produce 3D images of white matter tracks during the removal of cancerous tissue, or glioma, responsible for motor, visual, and language function.” 

Surgery for removal of malignant tissue often compromises healthy tissue.  The use of 3D DTI, will allow neurosurgeons to visualize the white matter tracks, thus assisting them in only removing malignant tissue. 

This is a very exciting new development with the use of diffusion tensor imaging.  

The United States District Court for the Northern District of Illinois-Eastern Division denied defendants’  Rule 702 Daubert motion to strike the testimony of David Gibson, president of Vocational Economics, Inc.  The case is Rossi v. Groft, Case No.10 C 50240 (U.S.D.C. ND April 16, 2013). 

This case arose out of an incident in which plaintiff, a bank loan officer, sustained serious injuries.  Prior to the accident, plaintiff had never made more than $10,000 per year.  Plaintiff was 27 years old and had completed two semesters of college at the time of the incident.  Plaintiff testified at his deposition that he had not applied for any jobs since the accident because the income he could earn with his limitations would be equivalent to paying child care, and he was looking to re-enter a physical rehabilitation program.  At the time of the incident, plaintiff was in the process of applying for a position at the Cook County Sheriff’s Office as a deputy sheriff. 

Plaintiff retained expert vocational economist David Gibson to opine as to plaintiff’s loss of earning capacity due to his injuries.  Mr. Gibson opined that plaintiff had a loss in lifetime earning capacity in the range of $957,000. 

To reach that conclusion, Mr. Gibson compared plaintiff’s pre-injury earning capacity and work life expectancy with his post injury earning capacity and work life expectancy using data from the U.S. Census Bureau’s American Community Survey.  Mr. Gibson used a “proxy” upon which he based both his pre and post injury earning opinions.

Defendants moved to bar Mr. Gibson from testifying under Fed. R. Evid. 702.  Defendants did not challenge Mr. Gibson’s credentials.  The Court found it noteworthy that Mr. Gibson and his colleagues at Vocational Economics had been permitted by Court to testify as experts using work life expectancy tables to determine diminished earning capacity.  See Goesel v. Boley Intl. (H.K) Ltd., No. 09 C 4595 2012 WL 5306284 @ *1-2 (N.D. Ill. October 26, 2012); and Thakore v. Universal Mach. Co. of Pottstown, Inc., 670 F. Supp. 2^nd 705, 729‑31 (N.D. Ill. 2009).  Rather, defendants argued that Mr. Gibson’s use of average age earning progression of the median male with Rossi’s educational level “utilizes certain generalities clearly contradictory to the facts proffered in this case.”  Specifically, defendants complained that Mr. Gibson had failed to consider plaintiff’s earning history, his slim prospects of employment with the Cook County Sheriff’s Office, and plaintiff’s home life.  Defendants further urged the Court to bar Mr. Gibson asserting that Gibson’s use of “median person” to assess plaintiff’s earning capacity because plaintiff’s income before the accident was substantially below what Mr. Gibson’s chart showed what would be expected of the median person. 

The court reviewed Mr. Gibson’s report which laid out why he believed that the median person he hypothesized was a reasonable proxy for plaintiff.  In his report, Mr. Gibson explained, “younger workers rarely have earnings that reasonably represent an average life time earning capacity.” 

Defendants also attacked Mr. Gibson’s consideration of plaintiff’s application to the sheriff’s office, and provided the court with an affidavit from the deputy director of the Cook County Sheriff’s Office Merit Board showing that plaintiff may not have been hired by the sheriff’s office because of plaintiff’s prior arrest and history of drug use.  Mr. Gibson testified, however, that he did premise his analysis on whether plaintiff would have been hired by the sheriff’s office finding that plaintiff’s application supported Mr. Gibson’s belief that plaintiff would have been actively employed or actively seeking employment similar in nature.

The court found that Mr. Gibson’s opinions were based on sufficient facts and data to be admissible provided that plaintiff presented evidence that his earning capacity has been impaired by the injury.  Accordingly, defendants’ motion to strike Mr. Gibson’s report and bar his testimony was denied.  

I just received the premier issue of “Brain Injury Journey, Hope, Help, Healing", a magazine for the brain injury community published by Lash and Associates Publishing/Training Inc. 

According to the mission’s statement, “Brain Injury Journey – Hope, Help, Healing” helps persons with brain injury, families, and providers successfully navigate challenges and live a full and satisfying life.  We offer empowering personal stories, interviews with experts, and clinical updates and research findings.  Above all, we provide a community to enhance hope and foster healing after brain trauma or disease.

I strongly recommend this journal not only for survivors and family members, but for providers and neuro law attorneys as well.

How can we, as trial attorneys, best understand the trials and tribulations that our clients experience after sustaining a traumatic brain injury than through the life stories of survivors and their families. 

Brain Injury Journal will be published six times a year.  Subscriptions can be ordered at www.lapublishing.com/brain-injury-magazine.  

Last month, the Fourth International Conference on Concussion in Sport issued its consensus statement on concussion in sport.  According to the Preamble, this consensus paper is a “revision and update of the recommendations developed following the first (Vienna 2001), second (Prague 2004), and third (Zurich 2008) international consensus conferences on concussion in sports and is based on the deliberations at the Fourth International Conference on Concussion in Sport held in Zurich, November 2012.”

The Statement defines concussion as a “brain injury and is defined as a complex pathophysiological process affecting the brain, induced by biomechanical forces.”  It acknowledges that concussion may be caused either by a direct blow to the head, face or neck or elsewhere on the body with an “impulsive” force transmitted to the head.  While noting that concussion typically results in a rapid onset of short-lived impairment of neurological function that resolves spontaneously, it acknowledges that symptoms and signs may evolve over a number of minutes to hours.  The statement acknowledges that a concussion may or may not involve a loss of consciousness and notes that in some cases “symptoms may be prolonged.” 

The Statement indicates that “the application of neuropsychological testing in concussion has been shown to be of clinical value which contributes significant information in concussion evaluation, and that it should be seen as an aid to the clinical decision-making process in conjunction with a range of assessments of different clinical domains and investigational results. 

Most importantly, it was unanimously agreed that there should be no return to play by the athlete on the day of concussive injury. 

This is an important paper that should be reviewed by all athletes involved in sports as well as coaches, trainers, and physicians.  

I previously commented on an article authored by Grant Iverson, Ph.D. discussing the concept of “Good Old Days Bias” in which patients remember being healthier prior to their sustaining their traumatic injury.

More recently, clinicians at McGill University in Montreal interviewed parents of children five to twelve years old approximately one month after the children had sustained a concussion.  According to a report published in MedPage Today, the study, led by Basil Kadoura, a student at McGill, resulted in similar findings as reported by Dr. Iverson. In this recent study, parent interviews revealed that parents’ recollections of their children’s pre-injury symptoms, “as being much less severe than they indicated in the emergency department when the children were being evaluated.”  

From a neuro attorney standpoint, this again emphasizes the need to get a client’s prior medical records rather than simply relying on the memory of the client, or his or her parents or spouse.  

It is well understood that traumatic brain injury is a continuum with mild at one extreme and severe at the other.  What constitutes the mildest form of traumatic brain injury was the subject of much disagreement, ultimately leading to the American Congress of Rehabilitation to develop a definition of mild traumatic brain injury in 1993.  This has led multiple researchers to advance various similar, but at times dissimilar, definitions of mild traumatic brain injury.  See “In Search of a Unified Definition for Mild Traumatic Brain Injury,” Ruff RM and Jurica P. Brain Injury, 1999, Vol. 13 No. 12:943-952; International Classification of Diseases, 9^th revision, clinical modification (ICD-9-CM) codes proposed by the Centers for Disease Control and Prevention (CDC) in a 2003 report to Congress and the VA/DOD “Management of Concussion/Mild Traumatic Brain Injury (2009).  The various definitions have led to debate over the diagnostic criteria for mild traumatic brain injury.  See “Mild Traumatic Brain Injury:  Scope of the Problem,” Malec JF.  in the Evaluation and Treatment of Mild Traumatic Brain Injury (ed. Varney NR and Roberts RJ). The question to be posed is, is it now time that we stop using the terms, mild, moderate, and severe as qualifiers in describing traumatic brain injury?

This question came to mind when I attended a recent brain injury claims seminar in Philadelphia last week.  During a panel discussion on neuro imaging, one of the panelist, a defense attorney, attempted to make the case that neuro imaging in the context of mild traumatic brain injury litigation, failed to meet the Daubert standard, although she rightfully acknowledged that she could find no published case law to support her argument.  However, in attempting to make her case, she noted that researchers could not even agree on a definition of mild traumatic brain injury, thus calling into question the ability of neuro imaging experts to conclude that neuro imaging is scientifically valid to detect mild traumatic brain injury.  The following day, I participated in a workshop on the identification and handling of traumatic brain injury cases.  During my presentation I spoke about the definition of mild traumatic brain injury developed by the American Congress of Rehabilitation Medicine (Kay 1993).  At that time, I made the statement that I liked this definition over the definition more recently developed by Menon.  See “Position Statement:  Definition of Traumatic Brain Injury,”  Menon DK, Schwab K, Wright DW, and Maas AI.  Arch Phys Med Rehabil Vol 91, 1637-1638 (2010).  I indicated that my preference was based on the ACRM list of symptoms broken down by the categories of physical, cognitive, and behavioral, as this definition serves as a check list in which to demonstrate to a jury that a particular individual has sustained a traumatic brain injury. 

Over the weekend, I had an opportunity to reread “Limitations of Mild Traumatic Brain Injury Meta-Analyses,” Pertab JL, James KM, Bigler ED, Brain Injury, 23:6, 498-508 (2009), and “Reaffirmed Limitations of Med-Analytic Methods in the Study of Mild Traumatic Brain Injury:  A Response to Rohling, et al., Bigler, ED, Farrer, TJ, Pertab, JL, James K, Petrie JA, and Hedges DW.  Clinical Neuropsychologist (2013).  In Bigler (2013) the authors state, “There is absolutely no consensus of cross studies as to how MTBI was defined the most fundamental of issues.  Diagnostic heterogeneity should be a red flag for any meta-analysis”. 

This whole attempt to develop a diagnostic criterion for mild traumatic brain injury seems to result in greater confusion rather than clarity.  When did mild traumatic brain injury become a separate and distinct injury from moderate-severe traumatic brain injury?

I have now come to the position that we should just use the term traumatic brain injury, recognizing that in any individual case, one’s symptoms can fall anywhere on the mild to severe continuum.  For this reason, I think we should use the Menon definition of traumatic brain injury, and not try to define places along the TBI continuum.  This is highlighted by the recent American Academy of Neurology updated sports concussion guidelines in which the AAN recommended “concussion and return to play be assessed in each athlete individually.  There is no set timeline for safe return to play.”  Thus, this is an important recognition that traumatic brain injury is and individualized injury and that each individual responds and heals differently.  

Between March 7 and April 7, the Pediatric Mild Traumatic Brain Injury (TBI) Guideline Workgroup is seeking public comment on a guideline protocol on diagnosing and treating pediatric mild TBI (among patients age 18 and under). Comprised of leading experts in the field of TBI, CDC Injury Center’s Board of Scientific Counselors established the Pediatric Mild TBI Guideline Workgroup to create a clinical guideline for health care professionals working in the acute care and primary care setting. The Workgroup is using the American Academy of Neurology’s (AAN) guideline development process to develop a multidisciplinary, evidence-based guideline.

You can access the guideline protocol for review and comment here.

Public comment on the guideline protocol is one of the first steps in the evidence-based clinical guideline development process. To learn more about the Pediatric Mild TBI Guideline Workgroup and next steps for the project, please click here.