Proving the invisible: traumatic brain injury is difficult to detect and to prove, but when you use the right tests and the right experts, you can help the jury understand what injuries your client suffered and how they changed his or her life.

One out of every 500 Americans suffers traumatic brain injury (TBI) every year. Any attorney evaluating this type of case faces a major problem of proof: Unlike a broken bone or herniated disc, most brain damage is invisible.

Not long ago, TBI cases were considered either difficult or impossible to prove. With the advent of objective technological testing, such as CT scans and MRIs, trial lawyers could better demonstrate damages in brain injury cases. But traditional CT scans and MRIs can detect only 10 percent to 15 percent of traumatic brain injuries, which means that proof is a huge obstacle in at least 85 percent of these cases. Furthermore, most TBI that is visible in CT scans or MRIs is associated with congenital or organic conditions, such as brain tumors or leaking aneurysms, not trauma.

To prove the invisible, you must begin by understanding the etiology of TBI and how it can be illustrated in a manner that is both admissible and persuasive.

The problem is that most TBI occurs on a microscopic level. During trauma, the brain, ordinarily bathed and protected in cerebral spinal fluid, undergoes a "shearing" phenomenon when it strikes and scrapes against the rough inside wall of the skull. This shearing damages or destroys millions of brain cells in an instant.

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These cells are particularly fragile, as they are long and thin. (See Illustration 1.) They tend to stretch or even snap at the axon structure of the cell, which causes the brain to suffer "diffuse axonal shearing," causing mild to moderate TBI. The terms "mild" and "moderate" refer to the degree and length of loss of consciousness, not the severity of damage to function.

It is critical that an expert explain this terminology to the jury at trial, or you risk the jurors thinking that the expert is saying that the plaintiff's injuries were mild. Mild TBI can have severe consequences; it may result in permanent and total disability.

Any violent movement of the skull may produce this shearing effect. Direct impact to the head is not necessary, as in the case of an automobile accident where the person's head is thrown forward or backward with great force, without making direct contact with any object. This is often referred to as an acceleration or deceleration injury.

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These cases are extremely difficult. With no evidence of impact with a dashboard or windshield, no evidence of loss of consciousness, and not even a bruise or bump on the head, neither the medical nor the legal community is traditionally equipped to demonstrate TBI.

Sometimes, TBI is not obvious to anyone, including medical professionals, because signs and changes in behavior may be subtle. Often it is a family member or even counsel who first suspects TBI and gets the injured party to seek a diagnosis.

If you are the first to suspect TBI, you have a unique responsibility. First, you should look for signs and symptoms in the client's medical records, such as loss of consciousness, nausea, and headaches. Next, look for behavioral changes, sometimes subtle, in the client's daily life. Be prepared to spend significant time with the client's family, friends, teachers, coworkers, and others to determine any changes they may have noticed. These changes may correspond to particular areas of the brain in a pattern or proportion that may lend significant support to your case. (See "The Anatomy of Impairment" on page 56.)

Testing

CT scans and MRIs. Although these tests cannot detect many cases of TBI, negative CT or MRI results sometimes can be used to support the plaintiff's case, especially where causation is an issue. Because these tests identify congenital defects, tumors, and other abnormalities that are not commonly associated with a traumatic incident, the defense expert will have to concede that negative CT or MRI results demonstrate that no such problems affected the plaintiff before the trauma.

PET scans. Positron emission tomography (PET) scans recently have made their way into the courtroom. A PET scan is a film of the brain as it absorbs glucose. The subject fasts before the test, and glucose is introduced into the bloodstream just before filming. As the brain cells absorb the glucose, normal uptake is measured by a change in color on the film.

PET scans were originally used to locate tumors in the brain, but they have more recently been used to detect traumatic brain injury. Irregular uptake levels in a particular lobe or location of the brain, which correspond to impaired function controlled by that part of the brain, can provide powerful evidence. This evidence may form the basis for an expert neurologist's or neuropsychologist's opinions. (See Illustration 2.)

Functional MRI. Recently, doctors and scientists have begun using a test known as functional MRI (FMRI), which records dynamic changes in blood flow to the brain. Areas in the brain with the most activity show up as bright spots. They show whether brain activity occurs in different brain regions as a patient thinks about, feels, smells, or reacts to external stimuli.

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Tesla MRI. The Tesla MRI is perhaps the most promising technology yet. It allows doctors to conduct magnetic resonance imaging with a magnet several times as powerful as those used in traditional MRIs. This filming procedure yields exceptional anatomic detail. (See Illustration 3 on page 55.) Doctors can see and film diffuse axonal injury in a manner never before possible with living brain tissue.

To use these new technologies effectively both in case preparation and at trial, you need help from experts. When preparing a case for your expert, gather as much pre-injury information about the client as possible, such as school grades, standardized test scores, and employment information. Consider speaking to family, friends, employers, and teachers to compare behavior before and after the injury. Your treating or expert neurologist will need all this to properly evaluate the client.

In a mild to moderate TBI case, the expert neuropsychologist--a psychologist with specialized pre- or postdoctoral training and experience in assessing brain dysfunction--is a key witness. The neuropsychologist uses tests and interviews to identify brain dysfunction, the location or origin of dysfunction, prognosis for recovery, functional strengths and weaknesses, the capacity to engage in independent daily life functions, and the need for supervision. The tests vary according to individual circumstances, and they often require several days to administer.

While an expert neuropsychologist often works in conjunction with a neurologist, the training and experience of these professionals differ greatly. Neurology is the medical science dealing with the nervous system, including the brain. A neurologist is a medical doctor who specializes in the diagnosis and treatment of diseases of the nervous system, whereas a neuropsychologist is a psychologist trained to diagnose behavioral disturbances caused by brain injury or other factors.

Although traditional diagnostic measures that a neurologist uses, such as X-ray, MRI, and CT scan, often do not confirm the cause of behavioral disturbances, neuropsychological tests can help confirm brain dysfunction. Unlike many other sorts of testing, which must visualize the injury to be useful, proper neuropsychological testing is reliable and accurate without such visualization.

It's important to know how to interpret the results of neuropsychological testing. Remember that the numeric scores themselves are not important in a vacuum. Only when compared with pre-injury information and reviewed for disparity and pattern can you and your experts properly understand and communicate your client's injuries.

For example, if the patient scores in the 79th percentile on 18 out of 20 tests, but only the 66th percentile in the remaining two, that disparity could indicate significant impairment and should be investigated. The fact that overall test scores or IQ is high does not mean your client has not suffered TBI.

Exhaustive investigation and development of the TBI case can be a costly endeavor. The costs of neuropsychological assessment can be substantial.

Expert neuropsychologists should coordinate with other experts. In addition to the neurologist, the neuropsychologist should work with vocational and cognitive rehabilitation experts and economists. The vocational expert gains information relative to disability, and the economist can use this vocational information to place a dollar value on that disability.

Problems in TBI cases range from expert qualifications to Daubert motions regarding new technology. A good advocate for a brain-injured person will anticipate these challenges and begin accumulating different types of evidence from the outset of the case.

Only then can you achieve the best result possible for your client.

The anatomy of impairment

Specific types of impaired function can be traced to specific areas of the brain.

Parietal lobe 

* inability to attend to more than one object at a time

* inability to name an object (anomia)

* inability to locate the words to write (agraphia)

* problems with reading (alexia)

* difficulty drawing objects

* difficulty distinguishing left from right

* difficulty doing mathematics (dyscalculia)

* lack of awareness of certain body parts and/or surrounding space (apraxia)

* inability to focus visual attention

* difficulty with eye-hand coordination

Occipital lobe 

* defects in vision (visual field cuts)

* difficulty locating objects in the environment

* difficulty identifying colors (color agnosia)

* hallucinations 

* visual illusions, or inaccurately seeing objects

* word blindness, or inability to recognize words

* difficulty recognizing drawn objects

* inability to rocognize the movement of an object (movement agnosia)

* difficulty reading and writing

Cerebellum 

* loss of ability to coordinate fine movements

* loss of ability to walk

* inability to reach out and grab objects

* tremors

* dizziness (vertigo)

* slurred speech (scanning speech)

* inability to make rapid movements

Brain stem

* difficulty swallowing food and water (dysphagia)

* difficulty organizing or perceiving the environment

* problems with balance and movement

* dizziness and nausea (vertigo)

* sleeping difficulties (insomnia, sleep apnea)

Frontal lobe

* loss of simple movement of various body parts (paralysis)

* inability to plan a sequence of complex movements needed to complete molt/stepped tasks, such as making coffee (sequencing)

* loss of spontaneity in interacting with others

* loss of flexibility in thinking

* persistence of a single thought (preservation)

* inability to focus on a task (attending)

* mood changes (emotionally labile)

* changes in social behavior

* changes in personality

* difficulty with problem solving

* inability to express language (Broca's aphasia)

Temporal lobe

* difficulty recognizing faces (prosopagnosia)

* difficulty understanding spoken words (Wernicke's aphasia)

* disturbance with selective attention to what the person sees and hears

* difficulty with identification of and verbalization about objects

* short-term memory loss

* interference with long-term memory

* increased or decreased interest in sexual behavior

* inability to categorize objects

* persistent talking (right lobe damage can cause this)

* increased aggressive behavior

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DOUGLAS K. SHEFF practices law with Sheff Law Offices in Boston.