Chronic pain and Traumatic Brain Injury (TBI) are two of the most poorly understood aspects of life after personal injury. Chronic pain and traumatic brain injury can send an injured person into a downward spiral of fatigue, insomnia, and depression and have attendant impairments of bodily function. Such impairments, whether from pain or injury, lead to demonstrable losses of enjoyment of life, ability to work, and contribute to a host of mental maladies. An impairment need not be permanent to have severe and costly consequences to you or a loved one.
Traumatic brain injury occurs, usually, when your head impacts something in a car accident or your head is under such pressures from a sudden movement that your brain crashes against the hard bone of your skull. It should come as no surprise then that mild traumatic brain injuries (also known as a concussion) occur often in auto accidents, boxing, and football.
Impairments of Bodily Function Explained
In order for a chronic pain or traumatic brain injury impairment to be objectively manifested, there must be a medically identifiable injury or condition that has a physical basis. MRI, X-ray, and other tests can be used to show the impact of your injury and impairment. Your injuries need to identifiable through your medical treatment–something that is medically identifiable and has a physical basis. Your injuries need to be made real, tangible, and objective—something that an adjuster, defense attorney, mediator, or juror can take back with them when they begin to consider your injuries. Chronic pain and traumatic brain injuries are by their very nature tough to identify and even harder to put into medical records. It is important that you chronicle your everyday changes.
To succeed at this, you will likely need to undergo tests with healthcare professionals, even if you have already done so. You will also need to show the results of those tests to a battery of experts who will help you build your case before the insurance company, the defense attorney, and quite possibly the jury. This can be taxing but is necessary to best ensure that you will receive a fair recovery. Insurance companies can be fickle; the more evidence you can show them in favor of your chronic pain and traumatic brain injury, the more likely it is you will receive a positive result for you and your family.
Important Body Function After Chronic Pain and Traumatic Brain Injury
For jurors to process information and understand the injuries and damages, they must be made to understand what is normal first before they can understand how something is abnormal. In other words, jurors have to understand why an injury matters. The best way to get jurors to understand what is normal and why something matters is to explain why it is important and how it is supposed to work first.
Whether it is a back injury or a brain injury, a significant part of any direct examination of a medical doctor should be on the area of the body that has been injured, and explaining first why it is important and how it is supposed to work before explaining how it has been damaged. Moreover, you and loved ones may be required to testify before the court about the before and after the injury. How your body felt before the accident and how your behavior has shifted to accommodate your injuries, the help you now need and the activities you have been forced to forego. Your testimony (and demeanor) on the stand is an important element of your case. Believable, likable plaintiffs are more likely to recover.
Effects on Your General Ability to Lead Your Normal Life
More auto crash cases are “not caused” on this prong than on any other (meaning that your case is thrown out for failure to show cause). It stems from a problem that almost all auto lawyers have in separating impairment from pain. But impairment and pain are very different concepts. And as a generalization, pain does not matter, impairment does. And as a generalization, most of today’s jurors are less sympathetic about complaints of pain.
Impairment seems to matter more than pain when it comes to damages. Jurors give money based upon the degree of impairment, and the more impairment you can show and document after a car accident, the more likely you are to achieve a full and fair verdict.
Pain is harder for jurors today. Research shows that “Gen X” and “Gen Y” jurors do not appreciate or care as much about pain. Pain is also intangible, which means that what pain might mean to one juror might be very different from what it means to another.
The law has five factors that judges (yes, judges) and juries may consider:
- Nature and extent of the impairment
- The type and length of treatment required
- Duration of the impairment
- The extent of any residual impairment
- The prognosis for eventual recovery
The last two factors, “the extent of any residual impairment” and “prognosis,” are most important for you and your car accident lawyer in the goal of obtaining a significant fair verdict. Providing evidence of your impairments necessary to meet each of these factors will significantly increase the potential trial verdict. And if you and your auto crash attorney can show significant permanency evidence—an opportunity that presents itself with most types of injuries—you can significantly increase the likelihood of achieving a desirable verdict.
These last two impairment factors are also the ones where most insurance companies undervalue claims. The mistake—and it is a mistake, repeated all the time by claims adjusters—is focusing only on the injury and ignoring the impairment when evaluating a claim. If there are injuries they do not like, or have little appreciation for, such as muscle spasms, bulging disks, “soft tissue injuries,” connective tissue, and whiplash injuries, they usually offer very little money in settlement talks. Mild traumatic brain injury cases, especially those of momentary loss of consciousness and delay in diagnosis and treatment, also fall into this category. The mistake they are making is looking at the personal injury itself and assuming it is of limited value. Why is a mild TBI or “soft tissue” injury so hard to value?
The mistake is assuming that these must be “small” injuries of inconsequential impairment. Yet taking “soft tissue cases,” as an example, there are more than 40 well-respected, peer-reviewed journal articles today that say these types of personal injuries can be permanent and cause permanent pain.
The Role of Chronic Pain Syndrome
Chronic pain is pain that lasts longer than six months and can range from mild to agonizing, occasional to constant, or from simply inconvenient to wholly incapacitating. Symptoms of chronic pain often include aching, burning, or sharp pains that precipitate and cause discomfort, soreness, and stiffness. Chronic pain is often linked to injury or trauma with the nervous system. Many people who suffer from chronic pain find themselves withdrawing from everyday activities, suffer increased stress and weakened immune systems, depression, anxiety, anger, and fatigue. Chronic pain is often felt in the lower back, neck and shoulder, the head through cluster headaches and migraines, musculoskeletal pain from soft tissue injuries, and neuropathic pain like phantom limb pain.
Often, the same mild traumatic brain injury (TBI) case that is so difficult to win in the courtroom is an excellent chronic pain case. Lawyers want to fight all day on whether or not these disabling injuries were caused by a car crash. But this is a hard sell, made harder when there is no loss of consciousness (LOC), very little damage to the vehicle, or a delay in the TBI appearing in the medical records.
The reality is, there is now a vast amount of medical literature that shows a connection between when pain becomes “chronic” and this pain causing real organic and chemical changes in the brain. With chronic pain, the alarm continues to shriek uselessly long after the physical danger has passed. Somewhere along the line—maybe near the initial injury, maybe in the spinal cord or brain—the alarm system has broken down. What researches have only recently come to understand is that prolonged exposure to this screaming siren actually does its own damage. “Pain causes a fundamental re-wiring of the nervous system,” says Dr. Mackey.
So maybe a better path is to look at all the injuries together. For example, if you are experiencing low back pain that you are being treated for from the car crash, it may not be, in and of itself, disabling. If you have headaches, they may not be, by themselves, of the incapacitating variety. But together, all of these injuries combine to cause a cumulative effect upon a person. It becomes a vicious cycle where pain causes fatigue. Fatigue exacerbates pain. This pain and fatigue and depression either cause this “fundamental re-wiring” of a person’s brain, or the pain and fatigue begin to cause cognitive effects such as short-term memory problems and problems with concentration and attention. And all of this causes emotional anxiety and depression that is well documented in the medical literature.
This vicious cycle of fatigue, pain, cognitive impairment, depression, anxiety, and the overall residual consequences of a person’s injuries are often a result of chronic pain syndrome. The key task is linking these maladies causally to your accident.
Pain, and especially chronic pain, can cause significant deficits and impairment in memory, concentration, fatigue, and emotional functioning, very similar to those caused by TBI. You do not have to prove it is TBI. You do not have to prove it is chronic pain. You just have to connect all of these injuries to the crash.
Establishing Permanency and Residual Impairment
Fatigue, Disability, and Vocational Disability
Fatigue is one of the most pervasive symptoms in many personal injury cases. It is almost always present in brain injury cases, in cases with serious long-term physical injuries, and in chronic pain syndrome cases. Fatigue can have a devastating impact on how people function. The impact of fatigue can last long after many other symptoms of TBI or physical injuries have resolved (or after you have learned coping strategies to lessen the impact of symptoms), such as difficulties with short-term memory, concentration, and attention.
Yet fatigue is also one of the most difficult injuries for auto accident attorneys to convey to jurors. It is difficult for jurors to understand what fatigue means and why it matters. Jurors often think that complaints of fatigue by the plaintiff on the stand are simply whining or laziness. As such, many personal injury attorneys have tended to avoid having their clients go in depth on the effects of their fatigue. However, fatigue is something that is read in a medical history by a treating doctor. Fatigue is often briefly remarked upon by a treating neuropsychologist, along with the other deficits that testing showed, but it must be explained to the jury in a way that can be understood.
The challenge: How can we make this disabling symptom, which is so common among victims of traumatic brain injury and serious physical injury cases, real for juries? How can we effectively convey fatigue and the devastating effect it has on your functioning?
Fatigue evidence can be shown, and this can be done, with a treating physician, an occupational therapist, a job coach, or a vocational rehabilitation expert. Demonstrating fatigue, as evidence of disability, can lead to a jury accepting a plaintiff’s economic damages. The powerful demonstration of fatigue evidence at trial can increase trial verdicts as juries understand not only the loss but the context of the loss—its real-life impact on a plaintiff’s ability to function in the world and in the workplace.
The First Step
The first step is identifying fatigue. The best places to find evidence of fatigue are in your medical records and neuropsychological testing results, where fatigue can is measured.
The Second Step
The second step is making this evidence of this disability real for jurors and insurance company adjusters who otherwise will dismiss it entirely. This is done by demonstrating fatigue through testing that is meant to show the effect that fatigue has on you in ordinary, simply tasks.
The idea behind the testing is to put you in a real-life environment, such as a factory or library, and have you perform a measurable task, such as assembling as many mechanical pieces as you can in a factory, or shelving books in a library. Production is measured every hour. In a person disabled by fatigue, production will fall dramatically, often after only the second hour. Total output at the end of the day is compared to the output at the beginning of the day. The difference is dramatic.
The fatigue testing is recorded to show that you are working diligently. During the testimony by the vocational rehabilitation expert, the occupational therapist, or job coach who performed the testing, the recording can be played from time to time to show how you were using good effort. The recording should also be played at each hourly interval to show the total output that was assembled. The recording, combined with evidence from neuropsychological testing showing that you are honest and not malingering, is important in showing the jury that this is not simply an act of exaggeration.
The Third Step
The third step is using the fatigue testing to show why an employer will be unable to accommodate this person in the workplace. The treating doctors can explain the reasons why a damaged brain has to work so much harder, how activities that jurors often take for granted can involve a great deal of deliberate effort, and how, as a consequence, by lunch, people who suffer from traumatic brain injury or fatigue sourced in personal injury are often completely exhausted. The treating doctor can explain the vicious downward cycle that is often involved, as people who struggle with fatigue become more fatigued, more mistake prone and often more short-tempered as the day wears on. The jury learns complicating factors to holding any job.
There are also important government guidelines and standards that require a person to be able to work a certain minimum number of hours, or he or she is considered disabled from employment. The vocational expert can show, using government standards, why you are not employable. Pressure, stress, the demands of work, and the mistakes, the criticism of others, all increase the debilitating effects of fatigue.
Most important of all, a jury that understands fatigue will now reject the defense argument that a person who functions well for a relatively short period of time, or even a few hours a day, can function at that level all day, every day. Defense lawyers like to cry “malingering” when people with mild traumatic brain injury or fatigue say they feel like they are getting worse over time instead of improving. But often it is fatigue, or more accurately, a vicious combination of fatigue, chronic pain, and the continuing recognition of a person’s own limitations that causes this worsening. A jury that has come to understand fatigue will understand this as well.
Proving “ Residual Impairments”
Most injuries have permanent consequences. Take the most common type of injuries found in a motor vehicle accident: injuries to the neck or back. It is not unusual to find that the plaintiff has been prescribed muscle relaxers and pain relievers. Many of these medications are quite strong. Many plaintiffs will take these prescribed medications several times a day and often several pills at a time. Showing the long-term toxicity of medications for pain over time can be powerful and visually impactful evidence. A toxicologist, pharmacologist, or psychiatrist can talk about the long-term effect that these medications will have over time on the plaintiff’s body.
Pain, and especially chronic pain, can have a global effect on the body and the health of a person’s emotional functioning. Serious physical injuries will often lead to serious psychological and emotional injury. Pain can, and usually does, cause chronic fatigue over time. By showing long-term, residual consequences of injuries, creative plaintiff attorneys can increase the underlying value of cases many times over.
Traumatic Brain Injury
Over half of all reported traumatic brain injuries are the result of an automobile accident. A traumatic brain injury can occur as a result of any force that penetrates or fractures the skull, areas which are susceptible during an auto accident.
Trauma to the brain can occur during an automobile accident when the skull strikes, for example, an object like a steering wheel or windshield. There may or may not be an open wound to the skull due to the accident; however, in automobile accidents, the skull may not necessarily need to have been penetrated or fractured for a traumatic brain injury to occur. In the case of an automobile accident, the sheer force of the accident can cause the brain to collide against the internal hard bone of the skull. The reason why this can occur is that when a moving head comes to a quick stop, the brain continues in its movement, striking the interior of the skull. This can cause bruising of the brain (referred to as a contusion) and bleeding (brain hemorrhage), which may not be visible at the time of injury.
Blunt trauma is a more serious type of head injury that can occur in an automobile accident when a moving head strikes a stationary object such as the windshield, where the head is impacted, causing an open wound which can be sustained from a variety of sources such as roof crush or occupant ejection in a car accident. At impact, the brain opposite the site of impact is pulled away from the skull, injuring the brain there.
When a traumatic brain injury, spinal cord injury, or any type of severe injury in which the occupants of a motor vehicle have sustained serious, debilitating injuries severely affecting their way of life, there are a number of factors that should be evaluated. In some cases, the extent of the injury may have been more severe due to outside factors that contributed to the accident.
Traumatic brain injuries are challenging, especially the mild traumatic brain injury case that presents with minor car damage. This section of the article focuses on developing knowledge of TBI and the ways it is litigated in order to give you a better understanding of what your personal injury lawyer will ask of you and what will be expected of you in mild traumatic brain injury cases.
Legislation in Arizona on Traumatic Brain Injuries
There is not much legislation currently specifically addressing TBI (or concussions). However, a growing body of medical knowledge in relation to sports injuries, particularly with recent concussion scandals in the National Football League (NFL) has led to some states enacting concussion protocols for student athletes. This emerging body of medical information is a boon to plaintiffs and the attorneys who represent them in car accidents, where defense attorneys have long argued that the forces in a car accident are insufficient to cause a concussion. After all, if a punch or tackle can cause a concussion and its many deleterious effects, how much easier is it for colliding vehicles to do the same?
Ariz. Rev. Stat. Ann. § 15.341.A.24 amended the current legislation in Arizona to require school boards to develop and enforce concussion and head injury policies for all pupils participating in school district-sponsored practices, games, or other interscholastic activities. These guidelines must inform and educate coaches, parents, and pupils of the dangers of concussions and head injuries and requires the immediate removal from athletic activity if a pupil is suspected of sustaining a concussion. The pupil may return to play when evaluated and cleared by a healthcare provider.
Symptoms of Traumatic Brain Injury (TBI)
Common TBI symptoms include loss of consciousness, confusion and disorientation, mild amnesia, difficulty of recall, headaches, dizziness, blurred vision, light sensitivity, balance disorder, fainting, fatigue, blackouts, nausea and vomiting, tinnitus (ringing of the ears), slurred speech, changes in sleep patterns, and changes in emotion and behavior (such as irritability, anger, anxiety, apathy, loneliness, abnormal laughing or crying, aggression, impulsiveness, or lack of restraint). TBI is further broken down into three degrees of severity: mild, moderate, and severe.
Mild traumatic brain injury is more commonly known as a concussion. If it knocks the victim out at all, unconsciousness lasts for 30 minutes or less. Symptoms often appear at or soon after the injury but may not develop for days or even weeks. The symptoms are usually temporary but can last for months of years.
Moderate traumatic brain injury causes unconsciousness for longer than 30 minutes. The symptoms are similar to its mild cousin but tend to be more severe and longer lasting.
Severe traumatic brain injury knocks the victim unconscious for longer than 24 hours. Symptoms are similar but increasingly severe compared to mild and moderate TBI.
These can be a good indicator of a TBI. Headaches that form behind your eyes, at the front of your forehead, or on the top of the skull are usually indications of a traumatic brain injury. Headaches that tend to form at the base of the skull can either be from a TBI or a consequence of a neck injury. Likewise, headaches beginning at the temples may be a TBI symptom or a result of a TMJ injury coming from your injured jaw disc.
When a person is suffering from a traumatic brain injury, his or her senses may become either overloaded or incredibly dulled. You will likely be asked if your (or your injured loved one) is experiencing any of the following:
- Sensitivity to bright lights
- Ringing in the ears
- Lack of or funny tastes (usually metallic) or smells
- Loss of balance, clumsiness, or dropping objects
A car accident is a traumatic event, so most people will naturally have an influx of emotions in the weeks and months following the event. To distinguish these natural reactions from those emotional changes that are amplified by a TBI, you may be asked to answer these or similar questions:
- Are you having crying spells?
- Have you lost interest in people, relationships, or sex?
- Do you lack motivation to perform even simple tasks?
- Do you have nightmares or flashbacks? Changes in your sleeping patterns?
- Has your appetite changed?
- Are you experiencing unusual or irrational fears?
Perhaps the most telling, but illusive, symptom of brain injury is a change in cognitive functioning. These symptoms will usually lead your personal injury attorney to send you to a neuropsychologist who can document the cognitive deficits suffered by the client. An attorney can try to uncover early changes, however, by asking a few simple questions:
- Are you having trouble remembering things? Do you go into rooms and forget why you went there? Are you having to write things down or keep a checklist for simple tasks?
- Are you having trouble concentrating or staying focused on a single task?
In addition to these questions, the attorney can usually get a sense of memory difficulties by asking the client the names of any doctors he or she has seen already or giving the client a telephone or name to remember and then asking the client to repeat what he or she was just told. If a client repeatedly asks you the same question or cannot recall your instructions a few seconds after you give them to him or her, a short-term memory dysfunction may be indicated.
Recognition of Mild Traumatic Brain Injury (MTBI)
In cases where you or a loved one has sustained a blow to the head or a significant whiplash injury and is suffering from emotional, cognitive, or behavioral changes one or more months post-accident, your personal injury lawyer should investigate the likelihood that the victim is suffering from the effects of traumatic brain damage. In such cases, your lawyer should refer you to experts skilled in the diagnosis of traumatic brain damage such as a neuropsychiatrist, behavioral neurologist, or clinical neuropsychologist. In many cases of brain damage, it is often the strategy of the defense to claim that you have not sustained brain damage or that any cognitive, emotional, or behavioral problems experienced are either the result of a pre-existing personality disorder or psychological factors arising from the accident, and as such unrelated to any head trauma. Familiarity with the literature dealing with the mechanics of traumatic brain damage, together with the utilization of more sensitive brain imaging techniques such as the MRI, PET scan, SPECT scan, and topographical brain mapping will hopefully assist your personal injury lawyer in convincing a judge or jury that the cognitive, emotional, or behavioral changes following head trauma are attributable to traumatic brain damage.
The lawyer should obtain the following information before consulting with the neuropsychiatrist, behavioral neurologist, or clinical neuropsychologist:
- Your medical history pre and post-accident.
- Confirmation of medical history from family, friends, employers, and co-workers (the more corroboration the better).
- Circumstances of the accident. Did you or your loved one hit your head, lose consciousness, demonstrate confusion or disorientation?
- Statements of witnesses to the accident.
- Whether you recall the events leading up to the accident, the particulars of the accident, and the events after the accident. If not, what is the period of post-traumatic amnesia?
- Ambulance crew report.
- Hospital records.
- Prior medical records. There may be evidence of a prior head injury.
- School records including any standardized test results.
The major problem for the lawyer presented with a client complaining of persisting symptoms arising out of a minor head injury or MTBI is deciding upon the appropriate course of action. This becomes difficult when the lawyer is confronted by physicians who seem to fail to appreciate the potentially debilitating effects of mild brain damage or seem too eager to attribute ongoing symptomatology to non-organic or psychogenic causes. The lawyer has two alternatives. The first is to follow the recommendation of the medical examiner and settle the case as soon as possible to allow you to continue with your normal life. The second alternative is to retain experts who are more in tune with recent developments in the field of MTBI so that the true nature and extent of the individual’s deficits can be properly assessed. Dr. Nathan Zasler, medical director of the Concussion Care Center of Virginia, makes the following observation in a recent article in the Journal of Head Trauma Rehabilitation:
“Clinicians should remember that gross absence of proof is not necessarily proof of absence. In unsophisticated hands, there may be no evidence whatsoever that someone has had a significant injury, whereas in different hands and to other eyes the patient may indeed have objective examination findings clinically as well as neurodiagnostically. Awareness of current advances in neurodiagnosis, including neuropsychological assessment, and in rehabilitative treatment is of paramount importance in providing adequate care to patients with post-concussive symptomatology.”
Challenges of the Traumatic Brain Injury (TBI) Case
The greatest challenge in any TBI case is offered by medicine. The medicine is what makes proving these cases to insurance adjusters and juries so challenging at times. Learning the medicine is not easy or fast. It can take a long time for juries to learn and understand. The hardest part in the courtroom is that so much of the medicine involved in brain injury cases can be counterintuitive to what we would ordinarily think. For example, a normal MRI or CT scan of the brain can actually support a brain injury diagnosis by ruling out other explanations for the symptoms (such as space-occupying masses, tumors, and the like), and brain injury is a process that occurs over hours or sometimes even days following a traumatic event such as a car accident. Emergency rooms are acute-care facilities, and this delay and the nature of ERs themselves help explain why so many brain injuries are never identified and diagnosed in emergency rooms.
TBI cases can also be expensive. The costs are higher than those in other automobile accident cases and premises liability cases. And then there are the new diagnostic tests, such as DTI and PET, that will also add thousands of dollars and hours of time.
There are a few “TBI case killers” in particular that must be confronted in order to be successful in these cases:
Defensive Attribution: The Top Weapon of Defense
The biggest enemy that your personal injury lawyer must confront in the TBI case is a common psychological defense mechanism known as defensive attribution. Defensive attribution in the TBI case is the subconscious mind of a juror refusing to accept that something as common as a low-vehicle-damage car accident can cause irreparable brain injury to someone he or she loves. These jurors will reject the message because the message is too scary and horrible to believe. These are the people who will not believe that anything less than a catastrophic automobile accident will be sufficient to cause traumatic brain injury. These people have a psychological need to believe that it must be—that it has to be—something else. These jurors will look for other possible explanations, no matter how implausible they may be, to avoid believing that this could happen to them or to someone they love. Unfortunately, this usually ends up being bad for the plaintiff.
Often, defensive attribution results in “buying into” the typical defense charges of malingering and exaggeration, and unfairly blaming the victim. Defense lawyers use this tactic often because, after all, it is effective. Your TBI lawyer must show that this is a normal and expected finding and that the brain injury that you or your loved one has suffered is exactly what doctors commonly see from other car accidents every day. Defensive attribution can be confronted successfully if it is addressed throughout the traumatic brain injury case—from voir dire (jury selection) on, with every medical witness, and throughout the trial.
The best way for your lawyer to confront this psychological defense mechanism in a TBI case is by showing that the forces involved in a car accident are sufficient to cause brain injury. It certainly helps if there are other injuries, especially other physical injuries, upon which your attorney can “bootstrap” the traumatic brain injury case. Showing that the forces from a car accident were sufficient to snap a bone, tear tendons or ligaments in a shoulder, or herniate a spinal disk makes it much easier for people to understand how the brain could be injured as well.
If, for example, you or your loved one was diagnosed with a whiplash injury to the neck, your lawyer should have the medical doctor explain how the forces that caused the head and neck to whip back and forth from the car accident were certainly sufficient to cause injury to the brain. Your lawyer must explain how a brain becomes injured (see above). The jury must be allowed to understand that this is expected and that this could happen to anyone, if they were in that car at that time and place.
Services of a mechanic, a biomechanical engineer, or a trauma epidemiologist can be utilized to explain how many pounds of pressure would have been exerted on the vehicle to cause the type of damage that occurred to the car, along with utilizing the services of medical experts to explain that these levels are well within recognized governmental and medical guidelines to cause traumatic brain injury.
The junk science behind the defense argument that a brain injury cannot occur in a low-damage car accident must be attacked. Your lawyer will attempt to have every defense doctor admit that the medical and scientific literature shows that people have been catastrophically injured and even killed with almost no vehicle damage. Low probability of an event occurring beforehand (whether it is suffering a traumatic brain injury in a low-vehicle-damage car accident or being killed in an airplane crash) means nothing after that event has already occurred. For example, it means nothing that the statistical risk of someone dying in a plane crash is one million to one if that person is dead from a plane crash. Although the risk or likelihood of suffering serious injury may be lower in a minimal-vehicle-damage car accident, once the client has in fact been found to have suffered a brain injury or other injury, the statistical probability of injury beforehand is meaningless. The entire defense biomechanical argument is based on junk science. These so-called experts play a statistical game based on probability of injury to a population in general and not to the client.
Perhaps the most insipid defense tactic that requires constant vigilance by the brain injury lawyer is when defense lawyers attack the victim of brain injury for, of all things, exhibiting the symptoms of brain injury! One added irony underlying any traumatic brain injury case is that the plaintiff—any plaintiff in any personal injury case—must be likeable, honest, and credible for a jury to award a fair verdict, but it is often the brain injury itself that is making the plaintiff so unlikable.
The sad fact of the matter is, jurors are human and have human foibles and failures. Prejudices and preconceived notions may come into play with your case. The more likable, open, and honest you are with the jury, the more likely you are to receive a fair compensation. This is an unfair thing to ask of someone suffering a malady that affects moods, such as TBI, in addition to the intense stress or an accident and trial.
Why Does TBI Matter?
The crucial question that every lawyer and plaintiff must answer in the mind of any insurance adjuster and the jury in the traumatic brain injury case is, “Why does it [TBI] matter?” It is not enough to simply say “my client has a traumatic brain injury” if a lawyer cannot meaningfully demonstrate what the TBI means for you and why that TBI matters.
The literature says that people who suffer brain injury are at increased risk for everything from divorce and suicide to Alzheimer’s and dementia.
In every case, the lawyer needs to take this injury out of the boring battle of the experts, with one treating doctor saying that the client has a brain injury and a defense doctor saying the opposite. The single most effective way to do this is with diagnostic testing. The goal is to objectively show the brain injury, so a bored jury at the end of the case can look at an enlargement of the scan and point to it and see the injury with their own eyes. There are many important brain injury tests used by doctors throughout the United States today, such as PET and Diffuse Tensor MRI. These scans are known as “functional imaging,” as opposed to the anatomical imaging of more traditional brain injury testing. Whereas MRI or CT are used to examine gross anatomy of the brain, these newer functional imaging tests are used to see how well the brain is working. When the traumatic brain injury case is being vigorously contested by a defense lawyer and defense neuropsychologist, having an actual image of your injured brain—something that cannot be faked—showing a defect that a lawyer can point to and that a jury can see is often the crucial turning point in these cases. Many health insurance plans do not want to pay for these more advanced diagnostic tests—not because they are not useful and not because they have failed at becoming valid and reliable. Insurance usually balks because these tests are not meant to diagnose but rather to confirm a diagnosis.
Defense lawyers and insurance companies win traumatic brain injury cases by making the case more complicated. The attention span of the average juror should be used as a guide. Your attorney does not need to cover the result of every single test administered by a neuropsychologist, or spend 30 minutes qualifying an expert, before he starts to elicit substantive testimony. An attorney should also use final argument to make most compelling and persuasive arguments along with using visual aids, charts, and exhibits to help him in this regard.
Achieving a positive result in the traumatic brain injury case depends on the people in your life who knew you both before and after your brain injury. It ought to be remembered that, ultimately, the jury stops listening to the experts and the lawyers. Compelling lay witness testimony is incredibly important. Jurors relate to these witnesses and tend to favor regular people over doctors and experts the longer these trials drag on.
 Horn, I.J. and Zasler, N.D. Rehabilitation of Post-Concussive Disorders, Hanley & Belfus, 1992.
 Mild Traumatic Brain Injuries in Motor Vehicle Crashes: How to Identify and Prove These to Adjusters and Juries, Steven M. Gursten, Michigan Auto Law.