Complexities of Mild Traumatic Brain Injuries: Insights on Establishing Causation or Proving Common Defenses

Brain injuries are complex, and initial diagnosis can be difficult. “Mild” traumatic brain injury is a medical term, not a legal term. Those diagnosed with mild TBI may assert permanent, life-altering brain damage even if he or she did not lose consciousness, did not have extensive physical injuries, the vehicle was relatively unscathed, or symptoms developed slowly. But proving the connection between mild brain injury and severe symptoms can be challenging and requires method and order. Moreover, plaintiffs must overcome the name of the diagnosis (“mild”) and defenses that may be easier for juries to understand.

Defendants typically challenge causation and damages. They may seek to show that plaintiffs have been misdiagnosed with permanent injury from which no recovery is possible and/or that plaintiff’s symptoms arise from a different or pre-existing condition that the jury can more easily comprehend. Indeed, “mild traumatic brain injury" may instead be "post-concussion syndrome," which has a much better prognosis. Thus, the terminology used to describe plaintiff’s condition is often a fundamental issue in the litigation.

In these highly contested and complex cases, discovery can be an expensive battleground. The defense may well seek to uncover problems in the plaintiff’s functioning before the accident, evidence of prior injury, psychological issues, the abuse of prescription or non-prescription drugs, social issues, and/or alcohol problems to explain cognitive or emotional injury-anything to point to alternative causation. Both sides will want experts who might support why certain discovery is or is not relevant or proportional.

Listen as this esteemed panel discusses the complexities that both plaintiff and defense will want to keep in mind when litigating “mild” traumatic brain injury cases.

I.Introduction

II.Diagnosis challenges

A.   Assessment of consciousness levels

B.   Glasgow coma test assessment

C.   Galveston orientation and amnesia test

D.   Imaging

E. Finding the right physicians

III.Litigation challenges

A.   Plaintiff’s brain injury has led to personality changes and the jury does not like plaintiff

B.   Discovery

C.   Experts

D.   Legal standard of causation and its importance in traumatic brain injury cases

E.   Distinguishing causation from fault

F.    Linking injury to symptoms

G.   Overcoming lack of physical injury or property damage

IV.Causation defenses

A.   Event could not /did not cause permanent brain injury

B.   Plaintiff does not have permanent brain injury

C.   Plaintiff’s condition is treatable and plaintiff will improve

D.   Other conditions, not defendant's acts caused plaintiff's injuries

1.    Preexisting condition

2.    Psychological condition

3.    Addiction

4.    Congenital/genetic defect

5.    Other disease

6.    Prior brain injury

7.    Old age

The panel will review these and other key issues:

• What are the leading causes of traumatic brain injury?
• What factors weigh for and against taking any particular case to trial?
• What should one look for in a police, emergency room, paramedic, fire department or other first responder report?
• How can plaintiffs limit overreaching discovery that may ask for data decades old?