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.