On Monday, September 26, 2016, I had the pleasure of giving a presentation entitled “Dispelling the Myths of a Mild Traumatic Brain Injury: All Traumatic Brain Injury is Serious.”

My presentation addressed 10 myths surrounding Mild Traumatic Brain Injury, such as concussions are not serious, everyone recovers from mild TBI, mild TBI is not permanently disabling, one does not need to lose consciousness, and conventional neuroimaging is sensitive to mild TBI. The three day event in Nashville brought together some of the country’s leading trial attorneys and medical experts who presented on a myriad of medical and legal issues surrounding the preparation of a TBI case.

The symposium was sponsored by the Brain Injury Association of Tennessee and the Tennessee Trial Lawyers Association.

The theory of neuroplasticity holds that the brain will change and adapt to different conditions including to childhood injuries. This theory is often challenged and sometimes referred to as a “myth.” However, a new study by Seena Fazel and colleagues from the Department of Psychiatry at University of Oxford in the United Kingdom delivered data that supports the claims of neuroplasticity theorists. Fazel’s conclusions reveal that the later a mild TBI is sustained, the worse the health and social outcome is for the patient. The study also found a causal effect between childhood Traumatic Brain Injuries (TBIs) and the risk of brain impairment and social dysfunction at later stages in life.

Continue Reading New Study Debunks Claim that Neuroplasticity is a Myth—the Later the Onset of Mild TBI, the Worse the Outcome

Despite study after study demonstrating long term effects from mild traumatic brain injury (concussions), it is astounding that defense courtroom doctors still maintain that there are no permanent residuals from mild traumatic brain injury. A new studyImaging Correlates of Memory and Concussion History in Retired National Football League Athletes, published in JAMA Neurology once again debunks this myth that everyone gets better.

The objective of the study, according to the abstract was “to assess the relationship of hippocampal volume, memory performance, and the influence of concussion history in retired NFL athletes with and without mild cognitive impairment.” The design of the study was a retrospective cohort study assessing differences between groups, mean hippocampal volumes, and memory performance by computing age quintiles based on group-specific linear regression models corrected for multiple comparisons for both athletes and control participants. The study utilized 28 former NFL athletes who were compared with 27 control participants. The mean age was 58.1 for the former athletes and 59.0 for the control participants.

The study found that retired athletes with concussion history, but without cognitive impairment, had normal, but significantly lower, California Verbal Learning Test scores compared with control participants. However, those with a concussion history and mild cognitive impairment performed worse when compared with both control participants and athletes without memory impairment. Among the athletes, 17 had a G3 concussion and 11 did not. Older retired athletes with at least one G3 concussion had significantly smaller bilateral hippocampal volumes compared with control participants.

The authors concluded that “prior concussion that results in loss of consciousness is a risk factor for increased hippocampal atrophy and a development of mild cognitive impairment. In individuals with mild cognitive impairment, hippocampal volume loss appeared greater among those with a history of concussion.”

People, who have sustained a permanent injury which results in a permanent work disability, will earn less and will have a shortened work life expectancy, even where the individual has returned to full time employment.  Thus, in every case, where a plaintiff has sustained a permanent injury resulting in a permanent work disability, a claim for loss of future earning capacity exists.

In Figurski vs. Trinity Health-Michigan, the Michigan Court of Appeals upheld a verdict in an obstetrical medical malpractice action.  On appeal, defendants asserted that the trial court abused its discretion when it determined that Anthony Gamboa, Ph.D., MBA, could offer an opinion as to plaintiff’s future loss of earning capacity.  Defendants attacked both Dr. Gamboa’s qualifications to testify as an expert and attacked his methodology as unreliable.  The Michigan Court of Appeals disagreed.

The Court of Appeals found that the trial court clearly understood her role as gatekeeper.  Dr. Gamboa was qualified as a vocational rehabilitation expert.  He held a number of degrees, including a Master’s in vocational counseling and a Ph.D. in an area that included vocational counseling and education.  Gamboa also received a MBA and testified that he liked to focus on statistics.  Gamboa has been with Vocational Economics, Inc. in one capacity or another since 1977.  His work there necessarily included offering expert opinions on the cost of future care and compensation loss.  He was a prolific writer in the area of earning capacity loss and work life expectancy.  The Court of Appeals also found that there was nothing unusual with regard to Dr. Gamboa’s methodology and that the trial court was correct in concluding that the different methods of calculating plaintiff’s damages was best left to the ultimate trier of fact.

 

This past week, I attended the American Association for Justice’s mid-winter convention in Palm Desert, California.  Besides my duties and responsibilities as Parliamentarian of AAJ, I was pleased to be invited to give a presentation at the Specialized Track: Concussion Crisis-Litigating Sports Injuries and TBI CLE program where I spoke on the topic of “Proving the Invisible:  Arguing a Sports-Related Concussion Case without Neuroimaging.”

On returning to New Jersey this past Saturday, I co-chaired the New Jersey Association for Justice (NJAJ) Traumatic Brain Injury program.  Besides co-chairing the event, I gave a presentation entitled “Identifying and Handling the Traumatic Brain Injury Case.”

It was recently reported that King-Devick Tests, Inc. has developed a quick and effective screening tool for the evaluation of concussion.  The tests, to be called the King-Devick Test, according to the manufacturer, is a “quick‑accurate and objective concussion screening tool that can be administered on the sidelines by parents, coaches, athletic trainers, school nurses, and medical professionals.”

In the press release, Mayo Clinic neurologist and director of Mayo Clinic’s concussion program David Dodick, M.D. stated “most importantly, the test is affordable and can easily be used by any youth sports league, and administered by non‑medical personnel.  And youth athletes are the higher risk for concussion and a longer recovery time than adults.”

It will be interesting to see whether the King-Devick test is adopted by rescue squad and emergency room doctors and nurses for the evaluation of concussion.

Generally, it is defendants that move to attack the admissibility of diffusion tensor imaging (DTI) asserting that this objective neurodiagnostic test fails to meet either the Daubert or Frye standard.  Most recently, a plaintiff went on the offensive, filing its own motion for an order precluding defendant’s expert from denying at trial the general acceptance and reliability of diffusion tensor imaging and from denying the existence of non-hemorrhagic brain white-matter lesions.  Defendant’s expert witness disclosure asserted that defendant’s expert was expected to testify that DTI “has not been recognized as a reliable technique to be utilized on an individual patient due to lack of any standardized and general accepted methods for acquiring, analyzing and interpreting DTI data.”  Defendant’s also cross-moved for an order seeking to preclude the admission at trial the results of the DTI and precluding any of plaintiff’s expert witnesses from testifying regarding those results.

The court, relying on the scientific articles submitted by plaintiff, coupled with the fact that numerous courts in various jurisdictions, as well as in New York, have admitted DTI results in evidence, established that there is general acceptance of DTI in the medical community as a means of diagnosing traumatic brain injury.  The court denied plaintiff’s motion with regard to defense expert’s opinions regarding the existence of non-hemorrhagic brain white-matter lesions finding that issue was based explored on cross-examination.

The case citation is Klipper vs. Liberty Helicopters, Inc., Supreme Court of the State of New York, County of New York: Part 10, Index No. 110711-2003.

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.

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.

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.