Representing the mildly brain-injured client.

Attorneys should use a multidisciplinary approach in working with experts in these cases.

One of the most challenging cases for a trial attorney involves representing a client with mild traumatic brain injury. This type of injury has been defined as a traumatically induced physiological disruption of brain function as manifested by any period of loss of consciousness of approximately 30 minutes or less; any loss of memory for events immediately before or after the incident, but not lasting more than 24 hours; any alteration in mental status at the time of the accident, such as feeling dazed, disoriented, or confused; or any focal neurologic deficit that may or may not be transient.(1)

Obtaining fair compensation for a client suffering from mild traumatic brain injury (MTBI) is much more difficult than for one suffering from fractures or herniated discs, because these maladies can be objectively documented.

To properly represent an individual with MTBI, the attorney needs to retain a number of experts, such as a biomechanical engineer, a neurologist, a neuropsychologist, a neuropsychiatrist, a physiatrist, a life care planner, and a vocational economist. The attorney also needs to use lay witness testimony. This approach enables the attorney to present a complete picture for the jury, portraying the client's injuries and limitations.

In almost all of these cases, plaintiff attorneys face a skeptical insurance adjuster because X-rays, CT scans, and MRIs fail to delineate any objective findings to support the subjective claim of brain injury. Medical benefits are terminated as a result of physicians who work for insurance companies or physicians who are not adequately educated in the treatment of the MTBI patient.

At trial, defense attorneys emphasize that there is nothing wrong with the plaintiff.(2) They point to the lack of loss of consciousness or minimal loss of consciousness at the time of the trauma, the short trip to the emergency room with no further hospitalization, the usual negative results of the diagnostic tests, and the plaintiff's "normal" appearance.

To represent such a client, a multidisciplinary approach is needed. Each expert discipline must complement the others. The attorney should take the initiative immediately to explain the biomechanics of the injury, explain the insignificance of negative diagnostic tests, and clearly present the devastating effects of the "mild" head injury.

Epidemiology of brain injury

Based on various studies and estimates, the data can be interpreted to indicate an annual incidence of approximately 1.3 million mild brain injuries per year.(3) The largest group of traumatically brain-injured people are between 15 and 24 years old.(4) More than 30,000 children sustain permanent disabilities as a result of brain injuries each year.(5)

Fifty to 86 percent of all brain injuries are classified as mild.(6) The majority of traumatic brain injuries are the result of motor vehicle, bicycle, or pedestrian-related accidents, followed by falls, violence-related incidents, and sports-recreation injuries.(7)

Studies show that although the great majority of mild traumatic brain injuries result in some loss of consciousness, brain injury can occur without it. The injury may manifest itself as an alteration in mental status at the time of an accident, such as dizziness, confusion, or disorientation.(8) Because the disruptions of the nerve processes and the shearing and tearing of the neuronal fibers are microscopic, often MRI and CT scans, as well as neurological examinations, reveal no observable damage to the brain.(9)

The trauma itself does not necessarily have to involve a fall or blow to the head.(10) Injury may occur after a severe flexion/ extension of the head with no striking of the head.(11) "The available literature suggests a significant, albeit small, subset of patients with MTBI do not make a full functional recovery. Patients with long-term impairments may show some resolution of symptoms over time, whereas others may have permanent impairments and permanent disabilities," wrote one expert.(12)

Biomechanical engineer

Most MTBI clients will have been injured in motor vehicle collisions. Usually they will have suffered loss of consciousness for only a few moments, if at all, and will have tested normal on neurologic and neurodiagnostic examinations.

So the trial attorney is faced with the task of convincing a jury that the client has in fact suffered a serious and permanent brain injury. A biomechanical engineer can be helpful in overcoming this difficulty.

Biomechanical engineers are scientists who have studied the relationship between force, acceleration, and deceleration and their impact on the human body, including the brain.(13) They can explain how the brain can be damaged simply due to the change in acceleration forces and that there can be brain injury without an actual blow to the head.

Biomechanical engineers should be able to provide analogies and examples so that a jury is able to understand the movement of the brain inside the skull and the damage that can occur from shearing, impact with the bony structures of the skull, and capitation. This testimony, presented early in the case, lays the foundation for the jury to understand and accept the medical testimony that will follow.

Neurologist

The neurologist plays a critical role. The neurologist substantiates the legitimacy and credibility of the treating neuropsychologist and explains the mechanism of the traumatic brain injury, the results of the clinical examination, and the insignificance of negative diagnostic test results.

Rarely, if ever, will MTBI be detected by standard diagnostic testing such as MRI, CT scan, or electroencephalography (EEG). Neurology has long recognized the inability of these tests to detect the subtle abnormality sustained by the brain in patients with MTBI. Neuroimaging studies are usually negative in patients with acquired mild traumatic brain injury.(14)

Doctors Jonathan Silver, former director of neuropsychiatry at Columbia-Presbyterian Medical Center, and Thomas McAllister, director of the Section of Neuropsychiatry at New Hampshire Hospital and Dartmouth-Hitchcock Medical Center, have written: "With regard to minor (mild) brain injury, MRI has been able to document evidence of diffused axonal injury in patients who have a normal CT scan. However, most often MRI and CT scans reveal no abnormality in victims with MTBI."(15)

One study found:

   MRI and CT are useful in detecting neurosurgical conditions, but they are
   often normal in patients with mild head injury. Although MRI reveals
   intracerebral lesions more often than CT in the chronic stage, data on
   acute MRI are sparse, and current consensus favors CT for the acute workup
   of head injury. Acute CT in mild head trauma is abnormal in only 3 percent
   to 18 percent of cases.(16)

Similarly, EEG results are usually normal. An EEG is a gross test that records the electrical activity from the brain. With regard to EEG evaluation in patients with mild traumatic brain injury, one researcher notes:

   In summary, the limited available data suggest that conventional EEG has
   little utility in evaluating patients with mild head trauma. A normal study
   does not exclude the diagnosis of postconcussive syndrome. Conversely,
   given the variety of findings in normal, noninjured individuals, it is
   difficult to determine with certainty if an atypical wave form represents
   true pathology.(17)

MRI results are often normal as well.(18)

In litigating these cases, the defense attorney rarely retains the services of a psychologist or a neuropsychologist. Rather, the defense enlists the testimony of a psychiatrist, who typically, after a short interview, will diagnose the patient as having suffered no psychiatric or psychological injury. The plaintiff attorney, using only a neuropsychologist, is thus faced with the prospect of appearing before a jury in a battle of the medical physician versus the nonmedical neuropsychologist.

With the proper use of a neurologist, however, this fight can be avoided. It is the neurologist's role to explain the limitations of diagnostic testing and neurological examination to detect the subtleties of MTBI and to explain that a neuropsychological evaluation is a much more comprehensive, objective assessment more aptly designed to detect the injury.

Neuropsychologist

At this juncture in the trial, both the biomechanical engineer and neurologist have testified regarding the biomechanics of the body and the accident, and this will bolster the credibility of the upcoming neuropsychologist's testimony. With this foundation, the neuropsychologist is in a position to again explain the biomechanics and anatomy involved and detail the objective findings on neuropsychological testing.

Clinical neuropsychology is the study of relationships between the brain and behavior.(19) It attempts to quantify and qualify the functional ramifications of brain lesions. "The neuropsychologist utilizes an understanding of brain-behavior relationships, disease processes, psychological and social factors, and patient differences to investigate the individual ramifications of brain dysfunction.(20) This discipline is concerned with the behavioral expression of brain dysfunction.(21)

The foundation of clinical neuropsychology is in its empirical research of brain-behavior relationships. "In essence, it is assumed that the patient once functioned in a certain manner. Now a behavior change has emerged, and with it a deviation from the normal expected premorbid pattern of test performance."(22)

The most important role of a neuropsychologist in trial is to objectively document residual deficits due to traumatic brain injury and to relate results to the plaintiff's current and future adjustment. The neuropsychologist is usually the only specialist who can objectively document the client's injuries. This is done using standardized objectively scored neuropsychological test batteries, such as the Halstead-Reitan neuropsychological test battery.

Although defense neurologists and psychiatrists often testify that neuropsychological testing is subjective and inferior to neurological or psychiatric mental status examinations, this testimony is not supported by the literature.(23)

In one study, the authors investigated commonly used methods of assessing neurological status in patients with mild traumatic brain injury to determine whether initial, or admission, neurological examination could predict intracranial damage. The study found that despite relatively normal examinations at hospital emergency rooms, 18 percent of those patients had intracranial lesions and 5.5 percent actually required surgery.

The authors concluded:

   Our data underscore the limitations of the admission neurological
   examination in assessing potential severity of apparently mild head
   injuries. There are many possible explanations for this. Since the
   admission neurological examination is often performed under emergency
   conditions, subtle neurological deficits may be missed. The examination, no
   matter how carefully performed, only considers neurological function at one
   point in time.(24)

With regard to the use of neuropsychological testing, one text explains:

   The neuropsychologic evaluation is a comprehensive, objective assessment of
   a wide range of cognitive, adaptive, and emotional behaviors that reflect
   the adequacy (or inadequacy) of higher brain functions. In essence, the
   neuropsychologic evaluation is a greatly expanded and objectified mental
   status examination. ... The objective and highly quantified nature of most
   neuropsychologic tests aids in the detection of subtle changes in
   performance over time.... Because of the wide range of behaviors assessed
   and the depth to which they are evaluated, the neuropsychologic evaluation
   may detect subtle deficits not apparent on the mental status
   examination.(25)

Also, the American Academy of Neurology, in a position paper addressing the assessment of neuropsychological testing, stated: "In general, neurological assessment is most useful in patients with more subtle deficits. It is also useful for detecting deficits in patients with particularly high premorbid intelligence levels in which bedside-type clinical testing may be insensitive to mild alterations."(26)

Neuropsychological testing can be defined as the administration of specialized psychological tests to patients with suspected focal or diffuse brain dysfunction to identify altered cognitive, behavioral, and emotional function and factors that may influence the patient's functioning.(27) The administration of neuropsychological testing typically occurs in a quiet environment, free of distractions. However, while this environment is likely to optimize the patient's performance on neuropsychological tests, it may mask impairments encountered by the patient under real-world conditions such as at home, in the workplace, or in the community "when such conditions may be quite noisy, contain numerous extraneous stimuli, and are highly dissimilar to the conditions under which testing occurred."(28)

A neuropsychological evaluation compares a patient's performance against that of individuals of similar age and education as well as compares the patient's performance with his or her expected estimated premorbid performance.(29)

Neuropsychiatrist

While traumatic brain injury is an organic injury to the brain, people with this injury, including those with MTBI, often experience psychological and neuropsychiatric consequences of that injury.(30) These people often experience emotional instability, depression, and anxiety that may require the intervention of a neuropsychiatrist to prescribe and administer medicine.

The person with a mild traumatic brain injury often will have been treated or seen by a great many physicians and psychologists who have dismissed the plaintiff's complaints and have not appreciated the significant residuals that may continue.(31) As a result, plaintiff attorneys should consider hiring a forensic neuropsychiatrist to evaluate all the medical reports, the testimony of lay persons, and the subjective complaints of the plaintiff in order to present what happened to the plaintiff in one coherent summary.

While the attorney could use the treating neurologist, physiatrist, or neuropsychiatrist, many treating physicians refuse to become involved in the litigation process other than agreeing to testify at deposition or trial. Further, depending on one's jurisdiction, conversations with a treating physician, even concerning trial strategy and litigation, may be discoverable.

On the other hand, some jurisdictions recognize the dual capacity that a physician may play in the litigation process.(32) Nevertheless, a retained forensic expert who does not have a patient-physician relationship may be able to give a more objective overview of the case than a treating physician can. This is an excellent role for the forensic neuropsychiatrist.(33)

Physiatrist

Despite the misleading classification of "mild" traumatic brain injury, the residuals can have a traumatic and devastating effect on patients.(34) For many, returning to the workplace is impossible. Others, after a brief return, find themselves unable to continue. Tasks that used to be completed efficiently take longer and require more effort. Frustration sets in as the client is unable to accept the difficulties encountered in doing ordinary tasks.

To maximize the recovery for the MTBI client, the plaintiff attorney must, among other things, aid the jury in understanding the detrimental effect of the injury on the client's ability to perform in the workplace. Because of the outward normal appearance of a client, a classic defense tactic is to portray the plaintiff as a malingerer, staying out of work waiting to collect the golden egg at the end of the trial.

Defusing this tactic requires the use of a physiatrist, a medical physician trained in the practice of rehabilitation.

A physiatrist can evaluate the patient's vocational handicaps and explain the consequences of these limitations in the workplace.(35) This requires a familiarity with the patient's workplace requirements, the patient's cognitive handicaps, and how the latter impact the former.

Life care planner

While most people with mild traumatic brain injury eventually recover fully, a small subgroup experience permanent symptoms from their injury.(36) At least one expert in the field calls this condition persistent post-concussion syndrome.(37) Often these patients will need long-term medical and psychological support.

The life care planner plays the important role of quantifying the cost of future medical and psychological care. Those with MTBI also suffer as a result from many cognitive deficits, such as problems in attention, concentration, and memory. The life care planner can quantify the replacement cost of hiring individuals to provide services the patient is unable to do for himself or herself.

One life care planner explains:

   The damages in a brain injury case are often not obvious; a replacement
   value for lost capacity and function is not easily defined. The life care
   planning process, through the projection of lifetime services and costs for
   people who are catastrophically injured, analyzes the frequently neglected
   issues in brain injury cases and aids in placing a dollars figure to the
   term "damages." ... Payers have difficulty looking beyond the conventional
   medical model. Old habits die hard and, in the insurance industry, only the
   traditional effects of disability are well understood and regularly funded:
   Problems with ambulation require the expertise of a physical therapist.
   Speech therapy is recommended for communication disorders; employment
   issues are addressed by a vocational counselor; occupational therapy can
   help in relearning the activities of daily living.... But in the brain
   injury cases, plaintiffs' attorneys must push the envelope beyond these
   common denominators to enhance payer understanding of necessary brain
   injury treatments. Rehabilitation must also encompass the brain--not just
   the body.(38)

Vocational economist

People with disabilities have a shortened work and life expectancy and earn less income per year.(39) This dual loss results in a significant economic loss for the person with a traumatic brain injury.

Just as important, many people with MTBI are able to continue working, albeit possibly in a lower job classification. Since the person with a mild traumatic brain injury appears on the surface quite normal, prospective employers are often unable to detect any disability at all. As a result, these people can easily obtain employment; the difficulty comes in keeping that job once it has begun.

A vocational economist is invaluable in quantifying future lost income. Even if the plaintiff is working at the time of trial, the economist can explain to the jury that this fact, in the long run, may not prove to be as hopeful as it appears.

Consultant

The trial consultant is an important part of the trial team. He or she will not serve as an expert witness in the case but as a consulting expert to assist in the preparation of direct and cross-examination.

In every case where the defendant has retained a neuropsychologist, the defense neuropsychological test materials, including the plaintiff's written and oral responses, should be obtained and analyzed by a consulting neuropsychologist. Errors in test administration or scoring can severely undermine the credibility of a neuropsychological witness.

Certainly, the use of a consulting neurologist, physiatrist, or neuropsychiatrist can help a trial attorney in understanding the nuances of this complex material. The consulting expert can provide medical literature to use in the presentation of the case or for cross-examination of defendant's experts. This expert can assist the attorney in understanding the strengths and weaknesses of the case, so that the attorney is in a position to properly recommend that the plaintiff settle or go to trial.

Lay witnesses

To prove the devastating effect that mild traumatic brain injury had on the plaintiff's life, the use of lay witnesses at trial is extremely effective. In representing a client, the need for lay witnesses increases as the objective proof in the case decreases.

The testimony of the plaintiff's medical experts is often so complex that it is well over the head of the average juror. Complicating matters further, defendants will call an array of experts with similar expertise and specialization. The jury is then confronted with a clash of expert witnesses, often equally qualified, giving opposite opinions on complicated medical issues.

To succeed at trial, a plaintiff must show how his or her life has changed since the traumatic event. Lay witnesses play a pivotal role, providing the jury with real-life examples of the differences in the plaintiff. They provide a basis on which neuropsychologists can opine that the findings on neuropsychological testing represent a change from what would have been expected had the tests been administered before the traumatic event.

This multidisciplinary approach results in a presentation to the jury of a complete picture of the injury and its devastating impact on the plaintiff's life. A properly prepared case can result in an appropriate and much-needed damage award.

Notes

(1.) Mild Traumatic Brain Injury Committee of the Head Injury Interdisciplinary Special Interest Group, American Congress of Rehabilitation Medicine, Definition of Mild Traumatic Brain Injury, 8 J. HEAD TRAUMA REHABILITATION 86, 86 (1993).

(2.) See Eric H. Marcus, Minor Head Injury Claims: Headaches for the Defense, 12 TRIAL DIPL. J. 108 (1989).

(3.) James F. Malec, Mild Traumatic Brain Injury: Scope of the Problem, in THE EVALUATION AND TREATMENT OF MILD TRAUMATIC BRAIN INJURY 15,15 (Nils R. Varney & Richard J. Roberts eds., 1999).

(4.) NIH Consensus Development Panel on Rehabilitation of Persons with Traumatic Brain Injury, Rehabilitation of Persons with Traumatic Brain Injury, 282 JAMA 975 (1999).

(5.) National Pediatric Trauma Registry, Research and Training Center in Rehabilitation and Childhood Trauma, New England Medical Center, Oct. 1993, Fact Sheet #2: Injuries Among Children (visited Apr. 21, 2000) http://www.nemc.org/rehab/factshee. htm#fact2.

(6.) Susan B. Sorenson & Jess S. Kraus, Occurrence, Severity, and Outcomes of Brain Injury, 6 J. HEAD TRAUMA REHABILITATION 1, 6 (1991).

(7.) Office of the Director, National Institutes of Health, Rehabilitation of Persons with Traumatic Brain Injury, 16 NIH CONSENSUS STATEMENT 1, 9 (1998).

(8.) RANDOLPH W. EVANS, NEUROLOGY AND TRAUMA 91, 92-93 (1996).

(9.) Michael P. Alexander, Mild Traumatic Brain Injury: Pathophysiology, Natural History, and Clinical Management, 45 NEUROLOGY 1253, 1253 (1995).

(10.) Mild Traumatic Brain Injury Committee, supra note 1, at 86-87. 11. Id.

(12.) Nathan D. Zasler, Neuromedical Diagnosis and Management of Postconcussive Disorders, in MEDICAL REHABILITATION OF TRAUMATIC BRAIN INJURY 133, 148 (Lawrence J. Horn & Nathan D. Zasler eds., 1995).

(13.) See generally Mariusz Ziejewski, Biomechanics of Traumatic Brain Injuries, in HEAD TRAUMA CASES: LAW AND MEDICINE 7 (Arthur C. Roberts ed., 2d ed. 1996 & Supp. 2000).

(14.) Alexander, supra note 9, at 1253-54.

(15.) Jonathan M. Silver & Thomas W. McAllister, Forensic Issues in the Neuropsychiatric Evaluation of the Patient with Mild Traumatic Brain Injury, 9 J. NEUROPSYCHIATRY & CLINICAL NEUROSCIENCE 102, 108 (1997).

(16.) Joseph C. Masdeu et al., Head Trauma: Use of SPECT, 5 J. NEUROIMAGING 553, 553-54 (1995).

(17.) James T. McDeavitt, Electroencephalographic Technologies in Traumatic Brain Injury, in MEDICAL REHABILITATION OF TRAUMATIC BRAIN INJURY 317, 322 (Lawrence J. Horn & Nathan D. Zasler eds., 1996).

(18.) Thomas W. McAllister, Mild Traumatic Brain Injury and Postconcussive Syndrome, in NEUROPSYCHIATRY OF TRAUMATIC BRAIN INJURY 357, 365 (Jonathan M. Silver et al. eds., 1994).

(19.) See generally ROBERT J. SBORDONE, NEUROPSYCHOLOGY FOR THE ATTORNEY (1991).

(20.) Richard J. Schuster, Neuropsychology in Brain Injury Litigation, in LITIGATING HEAD TRAUMA CASES 10-1, 10-3 (Arthur C. Roberts ed., 1993).

(21.) See generally MURIEL DEUTSCH LEZAK, NEUROPSYCHOLOGICAL ASSESSMENT (3d ed.).

(22.) Schuster, supra note 20, at 10-3.

(23.) See Bruce H. Stern, Use of Medical Treatises in the Traumatic Brain Injury Case, 21 TRIAL LAW. 386 (1998).

(24.) Sherman C. Stein et al., Limitations of Neurological Assessment in Mild Head Injury, 7 BRAIN INJURY 425,428 (1993).

(25.) RICHARD L. STRUB & F. WILLIAM BLACK, THE MENTAL STATUS EXAMINATION IN NEUROLOGY 161-62 (3d ed. 1993).

(26.) Therapeutics & Technology Assessment Subcomm. of the American Academy of Neurology, Assessment: Neuropsychological Testing of Adults, 47 NEUROLOGY 592, 596 (1996).

(27.) LEZAK, supra note 21, at 8.

(28.) Robert J. Sbordone, Ecological Validity: Some Critical Issues for the Neuropsychologist, in ECOLOGICAL VALIDITY OF NEUROPSYCHOLOGICAL TESTING 15, 18-19 (Robert J. Sbordone & Charles J. Long eds., 1996).

(29.) Eugene R. Rankin & Russell L. Adams, The Neuropsychological Evaluation: Clinical and Scientific Foundations, in FORENSIC NEUROPSYCHOLOGY: FUNDAMENTALS AND PRACTICE 83, 89 (Jerry J. Sweet ed., 1996).

(30.) Silver & McAllister, supra note 15, at 106.

(31.) Centers for Disease Control and Prevention, Facts About Concussion and Brain Injury and Where to Get Help (visited Apr. 21, 2000) www.cdc.gov/ ncipc/tbi.

(32.) See, e.g., Franklin v. Milner, 375 A.2d 1244 (N.J. Super. Ct. App. Div. 1977).

(33.) See generally Silver & McAllister, supra note 15.

(34.) Zasler, supra note 12, at 134.

(35.) Id. at 162.

(36.) EVANS, supra note 8, at 110.

(37.) Alexander, supra note 9, at 1256.

(38.) Robert D. Voogt, Brain Injury Litigation: What Is the Missing Link in Defining Damages? NEUROLAW LETTER, Sept. 1999, at 1, 1.

(39.) Anthony M. Gamboa & Paul Prachyl, The Vocational Economic Consequences of Brain Injury: An Update, NEUROLAW LETTER, July 1999, at 73.

Bruce H. Stern is a partner with Stark & Stark in Princeton, New Jersey.