New Study Calls into Question Need for Extended Rest Following Concussion

Posted in Brain Injuries in Sports, Brain Injury News, Brain Injury Resources & Links

Following a concussion, patients are instructed to rest for twenty-four to forty-eight hours beginning any type of return to normal activities.  Many doctors recommend an even longer period of rest so as to reduce the risk of re-injury during recovery from the concussion.  Some clinicians even advocate “cocoon therapy” which “restricts patients to several days in a darkened room before slowly returning to activity.”

A new study out of the Department of Pediatrics at the Medical College of Wisconsin calls into question the efficacy of cocoon therapy.

Danny G. Thomas, M.D. and his colleagues conducted a study of patients aged between eleven  and twenty-two years who presented to a pediatric emergency department within twenty-four hours of having sustained a concussion.  Participants underwent neuro cognitive, balance and symptom assessment in the emergency room and were randomized to strict rest for five days versus the usual care of one-two days rest followed by stepwise return to activity.  Patients were asked to complete a diary to record physical and mental activity level, calculate energy exertion, and record daily post concussive symptoms.

Ninety-nine patients were enrolled and eighty-eight completed all study procedures.  Post discharge, both groups reported a 20% decrease in energy exertion and physical activity levels.  As expected, the intervention group reported less school and after-school attendance for days two to five post concussion.  However, “there was no clinically significant difference in neuro cognitive or balance outcomes.  However, the intervention group reported more daily post-concussive symptoms and slower symptom resolution.”  The conclusion of the researchers was “recommending strict rest for adolescents immediately after concussion offered no added benefit over the usual care.  Adolescents’ symptom reporting was influenced by recommending strict rest.”

This study can be downloaded from  The study is entitled “Benefits of Strict Rest after Acute Concussion:  A randomized controlled trial, Thomas

Space, DG, APPS JN, Hoffman RG and McCrea M, and Hammeke T.  Pediatrics, Vol. 135, No. 2, February 2015.

If you or a loved one have suffered from a brain injury and have legal questions, contact Stark & Stark today.

DTI Used to Demonstrate Brain Changes in High School Football Players Even in Absence of Consussion

Posted in Brain Injury News, Brain Injury Resources & Links

At the annual meeting of the Radiological Society of North America (RSNA), Christopher C. Whitlow, M.D., Ph.D., M.H.A., an associate professor of radiology at Wake Forest School of Medicine and radiologist at Wake Forest Baptist Medical Center presented the findings from his research that some high school football players exhibit measurable brain changes after a single season of play, even in the absence of concussion

Dr. Whitlow and his fellow researchers studied twenty-four high school football players between the ages of sixteen and eighteen, none of whom had a history of having sustained a concussion.  During all games and practices, the twenty-four players were monitored with Head Impact Telemetry System (HITs) helmet-mounted accelerometers.

Utilizing this data, the players were divided into two groups “heavy hitters” and “light hitter.”  All twenty-four players underwent pre- and post- season evaluation with Diffusion Tensor Imaging (DTI).  Although none of the players suffered a concussion during the season “the results showed that both groups demonstrated global increases of FA over time, likely reflecting effects of brain development. However, the heavy-hitter group showed statistically significant areas of decreased FA post-season in specific areas of the brain, including the splenium of the corpus callosum and deep white matter tracts.”

“’Our study found that players experiencing greater levels of head impacts have more FA loss compared to players with lower impact exposure,” Dr. Whitlow said. ‘Similar brain MRI changes have been previously associated with mild traumatic brain injury. However, it is unclear whether or not these effects will be associated with any negative long-term consequences.’

Dr. Whitlow cautions that these findings are preliminary, and more study needs to be done.” If you or a loved one has been affected by a brain injury, contact Stark & Stark today.

Click here for the link to the RSNA press release.


Long Term Effects of MTBI and PTSD

Posted in About Brain Injuries, Brain Injury Resources & Links

There has been much research with regard to the long term effects of mild traumatic brain injury (MTBI) and post traumatic stress disorder (PTSD) as independent conditions.  However, there has been very little research studying the combined effect of MTBI and PTSD. 

This month’s Journal of Neurotrauma contains an article by Walter High, M.D. and his colleagues at the University of Kentucky, Department of Physical Medicine and Rehabilitation, Neurosurgery and Psychology.  Dr. High and his colleagues conducted a multi site study looking at the collective as well as the individual effects of MTBI and PTSD on an individual’s psychological, and cognitive functioning abilities.

The participants in the studies underwent a series of neuropsychological testing to measure their cognitive functioning.  The participants were classified as MTBI only, PTSD only, or both.  The results of the studies suggested that veterans suffering from both PTSD and MTBI have a poor cognitive and psychological outcome than those diagnosed with only one of the two conditions.  A link to the University of Kentucky press release can be found here.

Ohio University Infographic of CTE in Sports

Posted in Brain Injury News, Brain Injury Resources & Links

This summer the Radiological Society of North America published an article summarizing the findings from Research conducted at Stanford University on the effects of concussive and sub-concussive head injuries.  There the Stanford researchers, headed by  Michael Zeineh, MD, Ph.D. concluded that even for young football players who didn’t experience a concussion, football and other contact sports can cause brain abnormalities that mimic mild traumatic brain injuries and which can lead to the frightening degenerative decease call CTE. More information can be found here.

Recently, the athletic administration at Ohio University has published on its website an infographic that highlights the impact CTE has had on sports.  Ohio University breaks down the number of cases of CTE per sport (76 Football players at the professional level, 47 amateur or professional boxers, two soccer players, and more). While the narrative surrounding concussions and CTE has been attached to the NFL, it is spreading to other sports, including soccer, which was once considered a safer alternative to football. The infographic also offers ways to make sports safer and the stories of many athletes diagnosed with CTE, including Pat Grange, the first soccer player diagnosed with CTE. Click here to read the full article. If you or a loved one has been affected by a brain injury, contact Stark & Stark today for a free consultation.

Brain Injury Professional Publishes Special Issue on Brain Injury Litigation

Posted in About Brain Injuries, Brain Injury Legislation, Brain Injury News

I just received the recent issue of Brain Injury Professional, the official publication of the Brain Injury Society which I had the honor and pleasure to serve as guest editor.

This issue was entitled “Special Issue on Brain Injury Litigation.”  The issue included articles on “The Use of Diffusion Tensor Imaging” and “Life Care Planning and Acquired Brain Injury and the Affordable Care Act.”  The former article was authored by Dorothy Clay Sims, Esq. and Manley Kilgore, M.D.  The latter article was authored by Harvey E. Jacobs, Ph.D.

The journal included an article on the Economics on Mild Traumatic Brain Injury Disability authored by Joseph T. Crouse, Ph.D. and Anthony M. Gamboa, Ph.D., MBA. Brandon Woodward, Esq., Gregory A. Kendall, Kyle S. Dayton, B.S. and Douglas Rennie, Esq. contributed an article entitled “Pitfalls of oversimplied headache diagnosis in TBI litigation.”  Ken Kolpan, Esq., who for over 26 years has co-chaired the NABIS Legal Conference wrote an article entitled “What to You Expect When You Become An Expert.”  Finally, Frank Toral, Esq. contributed an article entitled “No Really, It Takes a Team.”

If you are not a member of NABIS, I strongly encourage you to join.  An application can be downloaded from the website


New York Court Again Rejects Defendant’s Motion to Bar DTI Evidence

Posted in Brain Injury Legal Cases, Brain Injury Legislation

A recent decision by the Supreme Court – State of New York, Nassau County, Part 40 rejected a motion by defendants to preclude the plaintiffs from presenting evidence regarding diffusion tensor imaging in support of their claim that the infant plaintiff suffered a traumatic brain injury as a result of a traumatic incident.  Sullivan v. Walters, Index number 6110-2005, Supreme Court-State of New York, Nassau County, Part 40.

There, defendants moved pursuant to Frye v. United States, 293 F. 1013 (1923) to bar the admissibility of plaintiffs’ expert Michael Lipton, M.D., Ph.D., asserting that the use of DTI violated the Frye standard.

In support of their motion, defendants submitted the affidavit of Dr. A. John Tsouris who is a board certified staff neuro radiologist and director of neurological MR imaging at New York Presbyterian Hospital-Weill Cornell Medical Center, and an associate professor of radiology.  Dr. Tsouri has co-authored two articles on DTI and is presently researching the possibility of utilizing DTI to establish mild traumatic brain injury in professional football players and patients suffering from MS, ALS, and brain neuoplasm as part of a collaborative study by the Hospital for Special Surgery and Weill-Cornell Medical Center’s Department of Neurology.  Dr. Tsouris affirmed that “research to date has shown that there is a significant overlap between FA values of individuals with traumatic brain injury and FA values in persons with no history of traumatic brain injury.”  Dr. Tsouris was also of the opinion that while DTI could be used if at all in a group study that individual results were meaningless unless compared to a control group.

Plaintiffs’ expert, Dr. Lipton, explained “MRIs are insensitive to white matter in the brain and so people who have sustained a closed head injury often have normal MRI results despite damage to white matter in their brains.  DTI is far more sensitive than MRI in that it measures the direction of extremely small-scale movement a/k/a diffusion of water molecules within tissue.  It was Dr. Lipton’s opinion that plaintiff’s quantitative analysis of FA images from the MRI/DTI study demonstrated multiple foci of significant low anisotropy consistent with traumatic axonal injury.  Dr. Lipton also explained that DTI does not and cannot, on its own, diagnose mild traumatic brain injury, but that it must be correlated with history and other clinical data to either substantiate or refute the diagnosis.

Plaintiff presented numerous medical literature and other publications which supported the use of DTI in establishing a traumatic brain injury as well as numerous Orders in which DTI has been admitted into evidence.

Defendants also asserted that Dr. Lipton’s failure to provide the computer programs and foundational data basis should also result in Dr. Lipton being barred.  The Court noted that these programs where the proprietary property of Montefiore Medical Center and Albert Einstein College of Medicine, which were not a party to the action nor had relief against them been sought.  More importantly, the Court noted that the information was confidential under HIPAA and the Court denied that portion of the motion as well.

Stern Gives Seminars on Both Coasts and Canada

Posted in About Brain Injuries, Brain Injury Events, Personal Injury Claims

It has been a very busy past two and a half weeks as I have given presentations on both coasts of the United States as well as Nova Scotia, Canada.  In late October,  I was invited by the Workers Injury Law and Advocacy Group to speak at their yearly convention in Santa Barbara, California.  There, along with my colleague Gordon Johnson, we gave a mock demonstration of a direct examination of a neurologist in a traumatic brain injury. A week later, I flew back to California to give a presentation entitled “Admissibility of Diffusion Tensor Imaging (DTI)” for the Brain Injury Association of California.

Back in New Jersey, I co-chaired a program entitled “Cross Examination College” at the New Jersey Association for Justice’s mid‑year convention at the Meadowlands in East Rutherford, New Jersey.  Besides co-chairing the college, I also gave a presentation on cross examination of the expert in a traumatic brain injury case. Finally, I was invited to speak at the Atlantic Province Trial Lawyers Association’s seminar in Halifax, Nova Scotia, Canada.  There, I gave two presentations , one entitled “The Effect of Disability on Earning Capacity for Canadians”  as well as a presentation on “The Use of Demonstrative Evidence.

While travelling can be quite tiring and travelling back and forth to the west coast is exhausting, I believe it is important to help educate other trial attorneys so they can better be able to represent their clients who sustained injury as a result of the fault of others.

New York Court Upholds Use of Diffusion Tensor Imaging in Litigation

Posted in Brain Injury Events, Brain Injury Legislation, Brain Injury News

I was recently sent two Orders from the State of New York in which defendant’s motion to bar the introduction of diffusion tensor imaging was denied.  Here is a discussion of the first case with the second to follow.

In the matter of Girgs v. Snapple Distribution Corp., Civil Court of the City of New York, County of Queens Part 30 the defendant moved to preclude the testimony of plaintiff’s medical expert, Michael Lipton, M.D., Ph.D. regarding his assessment of a traumatic brain injury based upon his analysis.  The basis of the motion was due to the plaintiff’s “alleged failure to comply with prior discovery orders wherein defendant sought to obtain various records, data, and information relied upon to reach the results in his report.  Defendant asserted that Dr. Lipton was unavailable and would always be unavailable to turnover his data as it is based on a comparison to individuals who did not waive their privilege under HIPAA.  Plaintiff asserted that discovery had been turned over.

According to the Order, Dr. Lipton performed an MRI of the plaintiff’s brain with results which were interpreted as being “unremarkable.”  Dr. Lipton also reviewed the plaintiff’s MRI with diffusion tensor imaging at which time he performed a quantitative analysis of the fractional anisotropy (“FA”) images from the DTI portion of the examination.  Dr. Lipton opined that this analysis revealed that plaintiff had multiple abnormalities consistent with axonal injury due to traumatic brain injury.

In response, defendant demanded discovery of all data, films, and information on which Dr. Lipton based his findings.  Defendant filed a motion to compel such discovery which was granted to the extent plaintiff was to provide all FA images using DTI, and any and all control values, including but not limited to films and images of the control group relied upon by Dr. Lipton and any other DTI imaging and films.  According to that Order, if plaintiff did not provide the requested information, plaintiff would be precluded from offering trial evidence and testimony from Dr. Lipton regarding the items not produced.

That early order was modified to the extent that defendant was given leave to subpoena the “computer programs and foundational data bases from Montefiore Medical Center and Albert Einstein College of Medicine.”  That early order was again modified to the extent that defendant was to serve a subpoena on Montefiore Medical Center requesting the data/information used for the comparative analysis by Dr. Lipton.

In response to that order, plaintiff turned over to defendant the DTI demographical data and quantitative analysis compiled by Dr. Lipton.  This information contained a number of participants in the control group, age, gender, and FA numbers.

In this most recent decision, the Court found that “since the images comprising the normal data base contained personal identifying information, as well as protected HIPAA information of parties not part of the lawsuit, who had not given consent, there is no legal basis to turnover this information.”  Furthermore, in that defendant’s “expert” Dr. Panasci, M.D. did not allege that he had any expertise in the quantitative analysis of DTI, the Court found that this information was not necessary for his analysis.  Accordingly, defendant’s motion to preclude the testimony of Dr. Lipton was denied.

Defendant then asserted that Dr. Lipton’s testimony should be precluded on the basis that the determinations in his report were not based on the “generally accepted standard” as set forth under Frye. The Court rejected this argument as well finding that the “data and methods relied upon by Dr. Lipton to quantitatively analyze plaintiff’s DTI images had been peer review endorsed by scientific publications including Radiology, Journal of Neuro Trauma, PLOS ONE, and Brain Imaging and Behavior. 

The Court stated: Moreover, to follow the defendant’s argument to its logical conclusion, would lead to an illogical result.  If the Court adopted defendant’s argument, there would not be any introduction of a great deal of generally accepted medical research since this privilege HIPAA information can never be turned over without consent.  Limitations of this type would be a waste of helpful resources and counterproductive to the administration of justice. Thus, defendant’s motion to preclude the testimony of Dr. Lipton based on Frye was denied.

Psychological Assessment of Symptom and Performance Validity, Response Bias, and Malingering

Posted in About Brain Injuries, Brain Injury Legal Cases, Brain Injury Legislation, Brain Injury News, Brain Injury Resources & Links

The Association for Scientific Advancement in Psychological Injury in the Law has published an official position regarding psychological assessment of symptom and performance validity, response bias, and malingering. Psychol. Inj. And Law (214) 7:197-205.  Bush, SS, Heilbronner and Ruff RM.  According to the abstract, the “purpose of this position statement is to promote ethical psychological practice in legal context by reviewing validity assessment issues and their ethical foundations.”  The authors find the position statement necessary as “no previously published document focuses specifically on symptom, performance, and response validity assessment that is pertinent for all psychological evaluation performed in forensic context.”

The authors make the following recommendations: Recommendations for Forensic Practitioners

1. Strive to be familiar and practice consistent with relevant practice, ethical, and legal/legislative requirements pertaining to validity assessment, including the present statement and extant position statements (e.g., Bush et al. 2005a, 2005b; Heilbronner et al., 2009).

2. Only validity measures having appropriate psychometric properties are used, selected based on the characteristics of the examinee and the circumstance(s) for which the examinee is referred.

3. List all validity measures and psychometric indicators used but avoid describing them in detail.

4. Interpretations of the results of assessment measures are based on consideration of all the relevant reliable assessment data, and then considered with the full data set (e.g., from examinee interview, collateral sources, records). These other data sets might contain substantial inconsistencies or discrepancies. The conclusions that best fit the full data set are offered in opinions and testimony, independent of the desires of the referral source.

5. Be wary of inferring motivation, volition, intention, and consciousness when there is insufficient evidence. However, do not avoid making such judgments when sufficient evidence is available. Consistently using preferred inferences, such as feigning or a “cry for help,” can be unhelpful or misleading in individual cases unless the evidence overwhelmingly supports such a conclusion.

6. Use of validity measures and indicators is maximized when practitioners understand the various items and definitions, and how to resolve inconsistencies therein in their conclusions. Understanding inconsistencies within and across relevant ethics codes, professional guidelines, practice regulations, legal/legislative frameworks, and position statements, enables practitioners to address them effectively in court.

7. Repeatedly check for biases and incentives in one’s own practices and conclusions. Internal or external influences that detract from an unbiased approach to evaluations need to be considered and countered. It is the forensic practitioner’s responsibility to guard against biases and strive to maintain a balanced perspective.