Damages In A Tbi Trial

Catastrophic Damages in a

Traumatic Brain Injury TrialDecember 18, 2012 · CONFIDENTIAL MATERIALS

TABLE OF CONTENTS

I. What is a Traumatic

Brain Injury (TBI)?

II. How do I Identify the

TBI Case?

III. How do I Defend the

TBI case?

What is a Traumatic Brain

Injury?

DEFINITION OF TBI

Traumatic brain injury (TBI) is a non-degenerative, non-

congenital insult to the brain from an external mechanical

force, possibly leading to permanent or temporary impairment of

cognitive, physical, and psychosocial functions, with an

associated diminished or altered state of consciousness.

The definition of TBI has not been consistent and tends to vary

according to specialties and circumstances. Often, the term brain

injury is used synonymously with head injury, which may not be

associated with neurologic deficits. The definition also has been

problematic with variations in inclusion criteria.

DEFINITION OF PTSD

PTSD is an anxiety disorder that comprises five major criteria.

First, one must have been exposed to or witness an event that is

threatening to safety, and one must respond to this event with

fear, horror, or helplessness. Second, one must report a re-

experiencing symptom, which may include intrusive

memories, nightmares, a sense of reliving the trauma, or psychological

or physiological distress when reminded of the trauma. Third, there

need to be at least three avoidance symptoms, which can include

active avoidance of thoughts, feelings, or reminders of the

trauma, inability to recall some aspect of the trauma, withdrawal from

others, or emotional numbing. Fourth, one must suffer marked

arousal, which can include insomnia, irritability, difficulty

concentrating, hypervigilence, or heightened startle response. These

symptoms must cause marked impairment to one's functioning, and

can only be diagnosed when they are present at least 1 month after

the trauma.

What Does the Literature Tell Us?

The intersection between traumatic brain injury (TBI) and post-

traumatic stress disorder (PTSD) has become a major focus of

attention in recent years. Stimulated largely by injuries sustained

in the Iraq and Afghanistan wars, and recent concussion issues in

professional sports, this issue has been debated widely because

these conditions, both independently and additively, are regarded

as being responsible for much reported impairment following

deployment and/or injury. There is a substantial probability you

will see overlaps between symptoms. The challenge for

attorneys is sorting out the differential diagnosis and determining

the extent to which presenting symptoms can be attributed to

organic or psychological factors.

Identifying the TBI Case

Cognitive Dissonance versus Cognitive Deficit

Cognitive dissonance is a psychological factor which disrupts

concentration and may result in neuropsychological test results

that may be misinterpreted as an organic injury, or a cognitive

deficit. Whether a symptom’s origin is psychological or organic

is the basic difference between a TBI and PTSD diagnosis.

Q And I think Dr. Unknown used the term that I find

helpful, cognitive dissonance as opposed to a cognitive deficit?

A Yes, sir. That's absolutely correct.

Q So these components can cause a breakup in

concentration, but that doesn't necessarily impute a cognitive

deficit.

A That's beautifully put.

The Various Classifications of TBI

Brain injuries are typically classified as mild, moderate or

severe. These classifications can be misleading because they are

based on an initial assessment of the life threatening nature of

the injury and not the long term consequences of the injury on

the individual. The Glasgow Coma Scale (GCS) was developed

to quantify brain injury in acute trauma patients. The scale is

based on a separate assessment of eye, verbal and motor

responsiveness. The GCS may provide some indication of long

term prognosis, particularly in cases of severe brain injury, but in

general it is poor at predicting long term outcome.

Mild Traumatic Brain Injury

A "mild" traumatic brain injury is defined as an injury resulting

in unconsciousness of less than 30 minutes or an initial Glasgow

Coma Scale of 13-15. It includes an injury that causes the

injured person to become dazed or disoriented but not a

complete loss of consciousness. It is now widely recognized that

an individual may suffer brain injury resulting in long term

cognitive deficits without loss of consciousness.

Moderate and Severe Traumatic Brain Injury

A "moderate" brain injury is one resulting in unconsciousness

lasting from 30 minutes to 6 hours or an initial GCS of 9-12.

Severe TBI involves more extended loss of consciousness and

post-traumatic amnesia, which typically results in more severe

cognitive impairment.

A Neuropsychologist’s Definition of Axonal Injury

Q And I don't think that we have got a definition of a diffuse

axonal injury. Could you describe that for me?

A So the brain tissue has different densities, and white matter

which is the connectivity between different brain regions is

coded -- those axons are coded with what's called a myelin

sheath, and that's a fatty substance. And the reason it’s there is

because it’s kind of like the rubber on an electrical wire that is

-- it protects the neuron and it speeds electrochemical

transmission of the cell. And so if a trauma does occur, injury

to those wires, or the axons can occur, and it disturbs the

effectiveness of that cell to function. And it tends to occur in

the large white matter bundles in the brain which we have all

over the place.

When Can a TBI Be Diagnosed?

Q If a patient has incurred a mild traumatic brain injury, when

-- or I'm sorry, how long would you have to wait in order to

make the diagnosis?

A Oh, you could make that diagnosis within hours of injury.

The issue is you're not going to know how that unfolds for

maybe three months or six months or three years depending on

the situation. Let me say, the vast majority of patients with

mild traumatic brain injury are perfectly normal six to months

post-injury. And by that, I mean 70 percent.

Mild Traumatic Brain Injury—How Is It Diagnosed?

Q Are all three of these items, the retrograde amnesia, the loss

of consciousness, and the post-traumatic amnesia required for a

diagnosis of a traumatic brain injury?

A So the reality is that there is a fairly poor correlation between

duration of post-traumatic amnesia and long-term functional

outcome. Even loss of consciousness doesn't correlate all that

well with one-year outcomes. And so these measures, like the

Glasgow Coma Scale, of the acute circumstances give you some

picture of what you're dealing with. But, if you look at how

people function in day-to-day life, those relationships aren't all

that clear. So the diagnosis of mild TBI is based on that, but

ultimately it's based on neuropsychological findings and also

based to some extent on neuroimaging findings like CT or MRI.

How Important Are Neuroimaging Findings?

Q Is there some type of a diagnostic testing or scan that you

can do to determine if a diffuse axonal injury has occurred?

A So -- and I don't mean this in a negative way. But unless

your patient is willing to have their brain biopsied, then no.

However, in the cases of really severe traumatic brain

injury, you can see the effects of diffuse axonal injury on

scanning usually three to six months post-injury because what

happens, you get ventricular expansion. And so you can see

that on imaging on a case of very severe injury.

•Note—new diagnostic testing methods may have better results

[CT, MRI (FLAIR, T2, functional), SPECT, MSI, MEG, DTI]

What Are Neuropsychological Findings?

Neuropsychological testing is utilized to assess cognitive

function prior to and following mTBI. Neuropsychological

batteries are also utilized for assessment of short and long term

post concussive symptoms. The choice of specific

neuropsychological tests varies, but a battery is chosen to

assess cognitive skills including immediate and delayed

recall, orientation, verbal memory, attention span, word

fluency, visual scanning and coordination.

•Note—tests include PASAT, MCMI-III, MMPI2, CLVT

What Are Neuropsychological Findings?

Despite the super-sophisticated names and seemingly

sophisticated nature of neuropsychological testing, these tests

are actually quite basic. They consist of a number of physical

tasks, i.e., connecting circles with numbers in

sequence, copying a figure, repeating a string of numbers. The

results are a measurement based on accuracy and speed in

completing the assigned task. Test results are then compared to

―normal‖ people who completed the same tasks.

Example of Neuropsychological Testing

Defending the TBI Case

OBTAINING THE RIGHT RECORDS

Raw Test Data

First Responder Records

• Look for Glascow Coma Scale Scores and loss of consciousness

Pre-accident

• Medical, school, employment, mental health, military, drug history

• Establish a baseline IQ

Post-accident

• Medical, school, employment

Glascow Coma Scale in Medical Records

Glascow Coma Scale in Medical Records

Obtain the Right Records

Raw Testing Data

•One set of records that is an absolute must is the raw data

generated by the plaintiff’s neuropsychologist or

neuropsychiatrist. This data is generated during the

neuropsychological tests that will be relied upon by the

plaintiff’s experts to allege objective proof of the plaintiff’s

brain injury.

•These are records that generally the defense team must rely

upon and must have their own expert review.

•While the tests given to a plaintiff are arguably objective, they

are subject to interpretation.

Example of Raw Test Data

Cognitive Dissonance Can Distort The Testing

Q Are there any psychological components that can affect a

patient's score on the digital span and digital symbol test?

A Sure. Anxiety, depression can have -- the research would

suggest that anxiety and depression can influence cognitive

performance to about a standard deviation in terms of level of

functioning.

Thoroughly Review Medical Records


Pre-Morbid I.Q. Level



Q How do you compare the results to a pre-morbid IQ?

A There's a couple of different ways that we make estimates

of pre-injury level of cognitive functioning. One is you can

acquire school records. But school records can be useful in

that respect, and there are some tests -- there's one test in

particular referred to as the Wechsler Adult Reading Test. If

you add their score on the Wechsler Adult Reading Test to their

age and their level of education, you get a predicted, full scale

intelligence quotient that has, of course, a measurement

associated with it and all the other stuff, but nonetheless gives

you a benchmark of within a standard deviation or so where

someone's pre-injury functioning probably was.



If there is no prior I.Q. test then the best method for the

defense lawyer to estimate a plaintiff’s pre-morbid I.Q. level

and function is to gather all records that deal with evaluating a

person’s abilities. These include past school

records, employment records, military records, and every other

similar record that can be obtained for that plaintiff. Frequently

these records reveal that the plaintiff displayed many of the

same functional disabilities he/she now claims are due to brain

damage.


Post-Accident Function Level

Current employment records, school records, etc., can be used

to demonstrate that a plaintiff is functioning quite well in the

real world post-accident, and has conveniently forgotten to let

the neuropsychologist know that she is obtaining favorable

occupational evaluations after the accident.


Post-Accident Function Level

HIRING THE RIGHT EXPERTS

Neuropsychologist to refute treating

neuropsychologist

Neurosurgeon (if needed)

Radiologist/Neuroradiologist

Accident Reconstructionist

Hire the Right Expert

TBI cases are first and foremost brain cases. A neurologist

must be retained. If the plaintiff underwent surgery, a

neurosurgeon should be brought onto the defense team. A

radiologist, or better yet, a neuroradiologist, should examine

the films to determine the cause of the injury. If a prescription

or over-the-counter drug is blamed, a pharmacologist should

make the defense expert team. In traditional trauma cases –

e.g. involving a blow to the head, or injury resulting from a

motor vehicle accident – accident reconstructionists and

engineers may be needed to refute plaintiff’s theory of how the

accident occurred.

Hire the Right Expert

Treating Expert Versus Forensic Expert—Conflict?

Treating Expert Versus Forensic Expert—Conflict?

501 INDIANA AVENUE • SUITE 200 • INDIANAPOLIS, INDIANA 46202

317.237.0500 800.237.0505 F: 317.630.2790 www.lewiswagner.com

Robert R. Foos, [email protected]

Documents

Damages In A Tbi Trial