by Robert Luce, Esq.


Proving a “Mild” Traumatic Brain Injury: A Complex but No Longer Impossible Task


Traumatic Brain Injury, especially brain in- jury categorized as “mild” (MTBI), has his- torically presented one of the biggest chal- lenges for trial lawyers because there of- ten are no visible markers or clear signs of brain injury. Three important areas of de- velopment—research on brain injuries and veterans conducted by the Department of Defense, research on brain injuries and ath- letes, conducted by Center for the Study of Traumatic Encephalopathy and other groups, and comprehensive, ongoing study conducted by the Centers for Disease Con- trol and Prevention (CDC)—have provid- ed critical advances in both understand- ing the signs and the long-term effects of brain injury and in increasing public aware- ness and acceptance that invisible injuries to the brain can have devastating conse- quences. While proving MTBI is still a high- ly sophisticated, complex area of law, the new research and the public attention it has brought, combined with advances in brain imaging technology, mean that it is no lon- ger an impossible task.


Minor Complaints or Symptoms of MTBI?


Accident victims with obvious physical


trauma sometimes mention other more subtle problems such as insomnia, fatigue, dizziness, nausea, imbalance, irritability, dif- ficulty concentrating or remembering new information, sensitivity to light, visual dis- turbances, or loss of ability to smell. Some- times the complaint is as vague as “I just don’t seem like myself.” These feelings are often first reported hours, days, or even weeks after the accident. Frequently, they become a focus of attention only when the physical trauma is less acute or when the accident victim tries to return to work or school.


Sometimes these subtle complaints im-


prove over time; occasionally they do not. Some people report that these symptoms got worse instead of better after they first became evident. Some of these accident victims have no observable evidence of head trauma, no reported loss of conscious- ness and, where diagnostic images are tak- en, negative CT scans and MRIs. Friends, family members, and employers sometimes complain that although the physical trau- ma has begun to heal, the victim does not seem to be getting his or her act togeth- er, is disorganized, stays up half the night, and is difficult to get along with. Sometimes


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the victim gets more and more depressed, occasionally to the point of being suicidal. Many lose their jobs and/or their marriages fall apart.


In the past, many lawyers have over- looked these complaints, or, worse yet, have concluded that even the physical in- juries are “worth” less in the context of a negligence claim because the client is un- likeable and comes across as “malinger- ing.” This sentiment is sometimes “con- firmed” when the accident victim is final- ly referred for neuropsychological testing and shows deficits on all measures, includ- ing measures designed to assess “effort”— which unfortunately are sometimes inaccu- rately labeled as “malingering tests.” The negative judgment can be further con- firmed when the treating physician or neu- ropsychologist suggests (ignoring the pre- vailing understanding in this area) that the accident victim could not have a brain injury of any significance because there is no evi- dence of a loss of consciousness. Information has surfaced in the past ten years that should cause a completely differ- ent light to be cast on the patient presen- tation I have described—information that substantially increases the likelihood of be- ing able to prove a brain injury under these circumstances and recover substantial dam- ages. Three recent developments are par- ticularly significant.


Brain Injuries and Veterans


One key development is that the symp- toms I have described have been exhibit- ed in a remarkably high percentage of re- turning Iraq and Afghanistan War veterans over the past decade. Many of them were passengers in armored vehicles that struck IEDs and who appeared to have been “pro- tected,” at least from obvious, serious physical injuries. It has become apparent to the military, over time, that a large number of veterans who were previously thought to be suffering from Post-Traumatic Stress Dis- order or malingering, have, in fact, suffered brain injuries. Autopsies of veterans who may have died of other causes reveal wide- spread microscopic damage to brain cells, damage that no existing imaging technol- ogy is capable of visualizing. Traumatic Brain Injury has become known as the “signature” wound of these recent wars, and this has led to a significant in- crease in research funding. On January 12, 2012, First Lady Michelle Obama and Dr.


THE VERMONT BAR JOURNAL • FALL 2011


Jill Biden announced the “Joining Forces” initiative involving 120 medical schools (in- cluding Dartmouth) that are committing to conduct new research and clinical tri- als on TBI to improve the understanding of and effective treatment for this condition. The U.S. Defense Department has creat- ed “Centers for Psychological Health and Traumatic Brain Injury” to focus on early detection and monitoring of MTBI or con- cussions, which account for most TBI diag- noses. They have developed clinical guide- lines and support tools and have promoted the use of several advanced scanning tech- niques, including diffusion tensor imaging (DTI), single photon emission computed to- mography, and functional MRIs, which De- partment of Defense experts describe as “especially promising” in early detection of MTBI.1


The Defense Department guide- lines help to explain why MTBI can produce the symptoms I have described and how, in some of these cases, the injuries can be “objectively” confirmed through advanced imaging techniques.


Brain Injuries and Athletes A second development that brings more


awareness and understanding of MTBI is the growing recognition in the context of sports that concussions, even without loss of consciousness, can have severe perma- nent consequences. This recognition has led to the adoption of concussion guide- lines in both amateur and professional sports, sometimes at the insistence of play- ers’ unions. Many former professional ath- letes and their families have gone public with their common experience of depres- sion, sleep disorders, and mental fatigue, and several suicides have been linked to histories of concussions.2


The Center for the Study of Traumatic Encephalopathy (CSTE) has reported stun- ning findings from the examination of tis- sue posthumously culled from retired NFL athletes.3


These studies showed that the concussion injuries these athletes expe- rienced—injuries not evident on conven- tional MRIs or CT scans—caused signifi- cant brain damage that was only visible mi- croscopically, a condition labeled “chronic traumatic encephalopathy” (CTE). Most of the former NFL athletes whose brain tis- sue has been examined reveal this damage throughout the brain tissue, on both the su- perficial aspects of the brain and deep in- side. A 2009 article published by the Amer-


www.vtbar.org


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