Complexities of Mild Traumatic Brain Injuries: Keys to Establishing Causation and Overcoming Common Defenses

“Mild” traumatic brain injury can cause permanent, life-altering brain damage even if the plaintiff 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 defenses that may be easier for juries to understand.

Defendants typically seek to show plaintiffs have been misdiagnosed with permanent injury and/or that plaintiff’s symptoms arise from a condition (1) that the jury can easily understand and (2) from which recovery is possible.

Discovery is an expensive battleground in these cases. The defense will seek to uncover problems in the plaintiff’s functioning before the accident, looking for 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.

Listen as this esteemed panel discusses the complexities of litigating “mild” traumatic brain injury and how to overcome them. 

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?