For the neurolaw attorney (the attorney whose practice focuses on representing persons with TBI), the difficulty and challenge presented by these cases become readily apparent. All too often, the plaintiff did not report a loss of consciousness, nor were there any positive findings in neurological examinations. Hospitalization may never have occurred or may have been markedly brief. There may be no objective neurodiagnostic studies, such as an MRI, CT scan, or EEGs, to demonstrate to the jury the presence of a traumatically induced brain injury.
From the very outset of trial, defense attorneys will vigorously argue to the jury that the plaintiff could not have sustained a TBI in light of the fact that (1) the plaintiff never lost consciousness; (2) neurological examinations fail to demonstrate any abnormality suggesting a brain injury; and (3) diagnostic studies of the brain were normal. This defense mantra will be repeated over and over as the trial progresses, with each witness, both expert and lay, being questioned about the lack of any objective findings.
Defense attorneys capitalize on two popular myths: (1) to sustain a brain injury, a person must lose consciousness; and (2) if there is a brain injury, it will be detected by the presence of abnormalities in neurological examinations and diagnostic testing. Only through the skilled use of medical treatises and various scientific studies can plaintiff’s counsel debunk these myths. To do so, plaintiff’s counsel must devour a vast wealth of information on the subject and learn the nuances of a vocabulary that is unique to this area of the law.
The very characterization of a brain injury as “mild” presents a challenge to plaintiff’s counsel, as it creates a misimpression with the jury that the injury is not particularly serious. Plaintiffs’ experts must become sensitive to the misimpressions created by the language of the field and to the hurdles caused by common misconceptions as to what one should expect in the form of detection and proof of a brain injury. A jury must be helped to understand that a so-called “mild” TBI can be a devastating and permanently debilitating injury, even when tests such as an MRI or CT scan fail to show any abnormalities.
The trial attorney handling TBI cases must become attuned to the debates that rage over the meanings of words and the conditions they describe. Are the words concussion and traumatic brain injury synonymous? Some “expert” witnesses will say yes, while others will answer no. Is loss of consciousness necessary for there to be a brain injury? Despite the weight of contrary evidence, there are still highly credentialed experts who will testify that a loss of consciousness is a prerequisite for TBI. Are neuropsychological tests valid and can they diagnose brain injury? The answer depends on whom you ask.
Medical professionals, when pressed, must agree that commonly used diagnostic studies such as MRIs, CT scans, and EEGs are usually “normal” when examining a person with a mild TBI. Similarly, they must agree that neurologic evaluations are often incapable of diagnosing the subtle symptomatology of a mild TBI. Nonetheless, at trial, defense attorneys continually argue that the plaintiff could not have sustained a brain injury where the plaintiff did not lose consciousness and diagnostic testing is normal. While this argument runs counter to accepted medical and scientific research and literature, it is an argument to conform to their lay expectations of what constitutes a brain injury.
The trial attorney handling TBI cases must become attuned to the debates that rage over the meanings of words and the conditions they describe.
In most cases of mild TBI, neuropsychological testing is the only diagnostic tool available to document the subtle residuals of this type of injury. CT scans are incapable of detecting the subtle changes that can produce the dramatic disabilities for the brain-injured plaintiff. Defense attorneys and their doctors will capitalize on the fact that the mild TBI is an injury that can often be proven only by sophisticated neuropsychological testing. The defense will argue that the neuropsychological testing is subjective and controlled exclusively by the patient’s willingness or unwillingness to give a good effort.
The use of the medical and scientific literature regarding mild TBI enables the plaintiff’s attorney to counter the misconceptions and popular myths surrounding traumatically induced brain injuries. A careful study and understanding of the literature in the fields of neurology, psychiatry, neuropsychiatry, rehabilitative and medicine, and nuclear medicine will enable plaintiff’s counsel to effectively cross-examine defense experts, regardless of their myriad credentials.