Brain Injury Legislation

On August 10, 2011, United States Navel Petty Officer KY, age 26, was stopped in traffic on Route 206 in Bordentown, New Jersey, when her vehicle was rear-ended by a Ford 350 pickup operated by Mr. Avisai Pantle-Aguirre and owned by H&H Landscape Management, LLC. The force of the crash spun KY’s vehicle, causing it to collide with the vehicle stopped in front of her.

KY was initially diagnosed with having sustained a concussion and a neck injury. MRI’s of her brain, neck and low back revealed two small lesions in her left parietal lobe, three herniated discs in her neck and a bulging disc in her low back. Continue Reading Petty Officer Awarded $2 Million by Burlington County Jury

As per the U.S. Senate Committee on Health, Education, Labor and Pensions:

Recently, the Senate passed the Every Child Achieves Act to replace No Child Left Behind, which was seven years past the reauthorization date. This bipartisan agreement was shepherded through the Senate by the Senate Health, Education, Labor, and Pensions Chairman Lamar Alexander (R-Tenn.) and Ranking Member Patty Murray (D-Wash.)

What the Every Child Achieves Act Does

  • Strengthens state and local control – The bill recognizes that states, working with school districts, teachers, and others, have the responsibility for creating accountability systems to ensure all students are learning and prepared for success. These accountability systems will be state-designed but must meet minimum federal parameters, including ensuring all students and subgroups of students are included in the accountability system, disaggregating student achievement data, and establishing challenging academic standards for all students. The federal government is prohibited from determining or approving state standards.
  • Maintains important information for parents, teachers, and communities – The bill maintains the federally required two annual tests in reading and math in grades 3 through 8 and once in high school, as well as science tests given three times between grades 3 and 12. These important measures of student achievement ensure that parents know how their children are performing and help teachers support students who are struggling to meet state standards. A pilot program will allow states additional flexibility to experiment with innovative assessment systems. The bill also maintains annual data reporting, which provides valuable information about whether all students are achieving, including low-income students, students of color, students with disabilities, and English learners.
  • Ends federal test-based accountability – The bill ends the federal test-based accountability system of No Child Left Behind, restoring to states the responsibility for determining how to use federally required tests for accountability purposes. States must include these tests in their accountability systems, but will be able to determine the weight of those tests in their systems. States will also be required to include graduation rates, another measure of academic success for elementary and middle schools, English proficiency for English learners. States may also include other measures of student and school performance in their accountability systems in order to provide teachers, parents, and other stakeholders with a more accurate determination of school performance.
  • Maintains important protections for federal taxpayer dollars –The bill maintains important fiscal protections of federal dollars, including maintenance of effort requirements, which help ensure that federal dollars supplement state and local education dollars, with additional flexibility for school districts in meeting those requirements.
  • Helps states fix the lowest-performing schools – The bill includes federal grants to states and school districts to help improve low-performing schools that are identified by the state accountability systems. School districts will be responsible for designing evidence-based interventions for low-performing schools, with technical assistance from the states, and the federal government is prohibited from mandating, prescribing, or defining the specific steps school districts and states must take to improve these schools.
  • Helps states support teachers –The bill provides resources to states and school districts to implement activities to support teachers, principals, and other educators, including allowable uses of funds for high quality induction programs for new teachers, ongoing rigorous professional development opportunities for educators, and programs to recruit new educators to the profession. The bill allows, but does not require, states to develop and implement teacher evaluation systems.
  • Reaffirms the states’ role in determining education standards – The bill affirms that states decide what academic standards they will adopt, without interference from Washington, D.C. The federal government may not mandate or incentivize states to adopt or maintain any particular set of standards, including Common Core. States will be free to decide what academic standards they will maintain in their states.

It is presently the standard of care to keep children who have sustained concussion/traumatic brain injuries off the field and not to return to play until they are cleared by a competent professional.  Assemblywoman, Pamela R. Lampitt (D Burlington and Camden) has introduced a bill in the New Jersey Assembly, which would require any student who suffers a concussion to be evaluated by a doctor or other health care provider and to get written clearance before the child can go back to school. Under the bill, each school district that deals with students with disabilities would be responsible for enforcing any limits on a student’s activities that were determined by the health care provider.

The statement accompanying the bill states:

This bill provides that a student enrolled in a school district who sustains a concussion must receive an evaluation by a physician trained in the evaluation and management of concussions and written clearance from the physician to return to school.  In the event that the physician provides notice that the student requires accommodations for learning, the school district must immediately implement the accommodations and notify all teachers and staff who have contact with the student of the accommodations.  The school district’s child study team will promptly evaluate the student in order to identify the manner in which the accommodations will be provided to the student during recovery and the need for the continuation or adjustment of the accommodations, and to determine the duration of the accommodations.

The bill also provides that a student enrolled in a school district who sustains a concussion is prohibited from engaging in any physical activity at school including, but not limited to, recess, physical education, sports, or cheerleading.  The student may not participate in any physical activity until he is evaluated by a physician and receives written clearance to participate.

The sponsor’s intent is to have the child study team use the physician’s diagnosis and recommendations to guide accommodations upon the student’s return to school for the period of time prescribed by the physician.

A copy of the bill  can be found here. You can read  the story published in New Jersey Spotlight here.

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.


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.

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

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.

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.

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.
I have previously reported on the BIAA white paper authored by Brent Masel, M.D. describing traumatic brain injury as a chronic disease.  The Federal Register has published a proposed rule of the Department of Veteran Affairs (VA) which is proposing an amendment to its adjudication regulations concerning service connection.  The amendment ,according to the summary of the rule, states,“this amendment is necessary to act upon a report of the National Academy of Sciences, Institute of Medicine, Gulf War and Health Volume 7: Long-term consequences of traumatic brain injury regarding the association between traumatic brain injury and five diagnosable illnesses.  The intended effect of the amendment is to establish that if a veteran who has a service-connected TBI also has one of these diagnosable illnesses, that that illness will be considered service connected as secondary to the TBI.  
The five diagnosable illnesses are: Parkinsonism; dementias (which includes:  (a) pre senile dementia of the Alzheimer type and (b) post-traumatic dementia); depression (also associated with mild TBI), and diseases of hormone deficiency that may result from hypothalamo-pituitary changes.   
A copy of the proposed rule change can be found here.