EVALUATION OF THE TBI CASE
Evaluation Of Traumatic Brain Injury Cases: The Plaintiff’s Perspective
By: Charles G. Monnett III
Charles Monnett & Associates
6842 Morrison Boulevard, Suite 100
Charlotte, NC 28211
For years traumatic brain injury (TBI) was called the “silent epidemic” because so many brain injuries went undiagnosed and untreated. Complaints of memory loss, personality change, and diminished mental abilities by victims of trauma were dismissed as “litigation neurosis” or simply ignored altogether. Persons with acquired brain injury were often left with disabling injuries that went uncompensated because many doctors and Plaintiff’s attorneys did not recognize that a brain injury had occurred. The situation has changed dramatically in recent years.
Claims involving (TBI) have continued to increase at a rapid pace as more Plaintiff’s attorneys learn about TBI and realize the potential for recovery of large damage awards in these cases. TBI has become a popular topic at legal and medical seminars across the country. The TBI case presents unique challenges not only to the plaintiff’s attorney, but to defense counsel and insurers as well. TBI claims, particularly those involving mild TBI, can be extremely difficult to evaluate due to the large number of factors that have the potential to influence the verdict if the case is tried. This paper will discuss evaluation of TBI cases from the perspective of the Plaintiff’s attorney.
II. WHAT IS A CLOSED HEAD INJURY?
According to the National Brain Injury Association more than 2,000,000 brain injuries occur in the United States each year. Approximately 75-100,000 people die each year from brain injuries and more than 500,000 have injuries severe enough to require hospitalization. Trauma is the most common cause of brain injury in the United States. Given these statistics, it is clear that there are a large number of potential TBI claims and that those claims represent a large potential liability for insurers. Therefore, it is important for those persons who are regularly involved in adjusting personal injury claims to have a good understanding of how brain injury occurs and the potential long term effects of TBI. It is only in recent years that the long term effects of concussion have become more widely recognized. Slowly the true picture of how acquired brain injury can affect an individual has emerged as more research in the area has been conducted.
Traumatic injuries to the brain are divided into two categories: open head injuries and closed head injuries. The most frequent type of traumatic acquired brain injury is the closed head injury. A closed head injury is defined as an injury to the brain without penetration or breech of the skull.
Medical professionals generally classify head injuries as either mild, moderate or severe. These classifications may be misleading because they are based on an initial assessment of the potential for the injury to result in the death of the victim following the trauma and not the long term consequences of the injury to the individual. The Glascow Coma Scale (GCS) was developed to enable medical professionals to quantify brain injury in acute trauma patients. The scale is based on a separate assessment of eye, verbal and motor responsiveness. The GCS generally provides a good indicator of long term prognosis, particularly in cases of severe brain injury.
A “mild” head injury is defined as an injury resulting in unconsciousness of less than 30 minutes or an initial Glascow Coma Scale (GCS) of 13-15. It includes an injury that causes the injured person to become dazed or disoriented but not to totally lose consciousness. It is now recognized that an individual may suffer brain injury resulting in long term cognitive deficits without a loss of consciousness. A “moderate” head injury is one resulting in unconsciousness lasting from 30 minutes to 6 hours or a GCS 9-12. If the initial GCS is less than 9 or the period of unconsciousness is greater than 6 hours the injury is classified as “severe”.
A committee was formed by the American Congress of Rehabilitation Medicine to draft a new definition for mild brain injury because of varying use of the term in medical literature and practice. The Mild Traumatic Brain Injury Committee of the Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine adopted the following definition of mild brain injury:
A patient with mild traumatic brain injury is a person who has traumatically induced physiological disruption of brain function, as manifested by at least one of the following:
1. Any period of loss of consciousness;
2. Any loss of memory for events immediately before or after the accident;
3. Any alteration in mental state the time of the accident (e.g., feeling dazed, disoriented, or confused); and
4. Focal neurologic deficit(s) that may or may not be transient; but where the severity of the injury does not
exceed the following:
* loss of consciousness of approximately 30 minutes or less;
* after 30 minutes, an initial Glascow Coma Scale (GCS) of 13-15; and
* posttraumatic amnesia (PTA) not greater than 24 hours.
It is essential to note that while these general classifications of brain injury provide some indication of the patient’s ultimate prognosis, they do not reflect the severity of the post concussive symptoms a patient may experience, nor do they reflect the extent to which the injury may eventually disable the patient. Patients with “mild” head injuries may be so severely debilitated by the injury that they are unable to return to any gainful employment. Conversely, patients with a “moderate” or even “severe” brain injury may recover sufficient mental functioning to return to employment and relatively normal, productive lives. Many factors, such as educational level, coping skills, employment skills, family support, and the presence of other disabling injuries will contribute to the final outcome.
There is no such thing as a “typical” brain injury. The effect that a brain injury has on the individual depends on what areas of the brain are injured and how much brain tissue is damaged. The sequella from a mild brain injury are often referred to as “post-concussive syndrome.” Post-concussive syndrome includes a wide variety of physical, cognitive and emotional symptoms which may follow brain injury.
The physical symptoms of brain injury include nausea, vomiting, lethargy, headache, blurred vision, tinnitis (ringing in ears), dizziness and quickness to fatigue. Some persons with brain injuries develop persistent seizures. Other physical sequella include loss of muscle control and coordination, spasticity, paralysis, loss of sensation and difficulty with balance. Many persons with traumatic brain injuries experience disruption of their sleep cycles, causing them to awaken frequently in the night or develop severe insomnia.
Cognitive symptoms may include impairments in information processing speed, concentration and attention. Visual, verbal and spatial perception may be affected. Impairments in short term memory and the ability to process new information are common. Both verbal and non-verbal communication skills also may be greatly affected. The injured person may become rigid and inflexible in their thinking resulting in impaired problem solving skills.
Emotional/psychological symptoms include extreme mood swings (emotional lability), personality change, depression, irritability, lowered self-esteem, sexual dysfunction, inability to cope with stress, agitation, anxiety, denial, poor insight and judgment, reduced motivation, quickness to anger and inappropriate affect.
III. FACTORS WHICH INFLUENCE VALUE OF CASE
Despite the fact that TBI claims have become more frequent and that there are more TBI verdicts to use as guidelines, TBI claims remain extremely difficult to value. Reported verdicts in “mild” TBI cases range from a few thousand dollars to several million dollars. One reason for this wide range of verdicts is that there is no “typical” pattern of how brain injury affects an individual. Another reason TBI claims are difficult to value or compare is the difficulty of objectively classifying the severity of the injury itself. In many cases, the parties will be unable to agree whether the Plaintiff even sustained a TBI. Hopefully, as medical imaging technology continues to improve more objective methods for the diagnosis and classification of brain injury will emerge. Some of the factors that affect the value of a TBI case include:
A. Documented Injury
One of the greatest challenges facing a Plaintiff’s attorney in a mild TBI claim is convincing the insurer or jury that the Plaintiff even sustained a brain injury. In most mild TBI cases MRI’s, CT scans, EEG’s and other “objective” diagnostic tests will be completely normal. Thus, any case in which there is a CT scan, PET scan, SPECT scan or EEG that is abnormal will have greater value than the same case without these objective findings. This is particularly true if objective diagnostic test and the neuropsychological evaluation are consistent. One of my goals in trial is to teach the jury about what areas of the brain control various mental functions and then correlate those areas with the Plaintiff’s symptoms and injuries. My job is much easier if I can show that an MRI or other objective test shows injury to a particular area of the brain and that the injured area controls the very mental function that is impaired.
B. Established Loss of Consciousness
It is well recognized in the medical literature that a complete loss of consciousness is not required for an individual to sustain a TBI which may result in long term cognitive impairment. However, as a practical matter, cases involving a clearly documented period of unconsciousness are much easier for a Plaintiff to win. There is little doubt that a jury will more readily accept that a person who was in a coma for days or weeks is brain injured as opposed to a person who was walking and talking at the scene of the wreck and who may not have even been treated at the emergency department.
Thus, just as the initial Glascow Coma Scale (GCS) is used by medical professionals to give a rough estimate of long term prognosis, it can be used as a rough predictor of the value of the case. Therefore, as a general rule, the lower the GCS and the longer it stays abnormally low, the higher the value of the claim.
C. Plaintiff’s Appearance
One of a trial attorney’s main tasks is to take the evidence in a case and mold it to fit into the life experiences of the jurors. Jurors will much more readily accept a fact or conclusion as true if it agrees with their own preconceived notions or “mental images” about a particular subject. If the average person was asked to describe their mental image of how a brain injured person looks, sounds and acts they would probably respond in a manner similar to this: the brain injured person has some form of paralysis or abnormal motor movements, their speech is slurred and pressured, and their behavior is unusual. The most challenging TBI cases from a Plaintiff’s perspective are those in which the Plaintiff initially looks normal, sounds normal and acts normal. The more the Plaintiff’s appearance fits with the public’s perception of what a brain injured person should look like the higher the value of the claim.
TBI can cause personality changes that cause the Plaintiff to appear as ill-mannered, unlikable and poorly behaved. Is the Plaintiff a person the jury will be sympathetic with–if not can their current personality be attributed to the injury? If the jurors do not identify with the Plaintiff they are unlikely to return a large verdict.
D. Damage to Vehicles/Speed at Impact
Although it is certainly possible to sustain a TBI in a low impact collision, as a practical matter it can be very difficult to convince a jury that a person has sustained permanent injury to their brain in a collision that does not involve substantial damage to the vehicles or a high speed impact. An exception to this rule is a case where there is a large difference in size between the vehicles, such as when a tractor-trailer rear-ends a small passenger car at a relatively low rate of speed. That a person could sustain a brain injury from a low impact, minor physical damage collision just does not fit within a juror’s preconceived notion of how brain injury occurs. The lower the impact speed and the less the vehicles are damaged, the lower the value of the claim.
E. Delay in Diagnosis
Cases where the diagnosis of brain injury is made in the ER or shortly after the collision are likewise much easier to prove than those where the diagnosis of brain injury is not made for weeks or months following injury. Although there are many very real and legitimate reasons a diagnosis of TBI may be missed or delayed following a traumatic event, the delay in diagnosis nevertheless provides a fertile ground for cross-examination by the Defendant, particularly where the Plaintiff’s counsel makes the referral to a neuropsychologist for evaluation. In general, the longer the length of time from the date of the accident to diagnosis the more difficult it will be to establish that the client was brain injured as a result of a specific traumatic brain injury and the lower the value of the case.
F. Differing Diagnosis
Cases where there is disagreement among Plaintiff’s treating doctors as to whether the client has sustained a brain injury will also present problems for the Plaintiff. Often the diagnosis of mild brain injury is difficult to make. X-rays, MRI’s, CT scans, EEG’s and other “objective” diagnostic tests may be completely normal. Some physicians still believe that a complete loss of consciousness must occur for a person to have sustained a brain injury. Others believe that there are no long term effects from mild brain injury. Distinguishing between a diagnosis of mild traumatic brain injury versus post traumatic stress disorder can be particularly difficult in some patients. The defendant will always try to exploit a situation where the Plaintiff’s doctors disagree as to the “correct” diagnosis. Defendant’s prefer the diagnosis of PTSD because they can argue that the condition may not be permanent and that it is treatable.
G. Plaintiff’s Personal/Social History
Because of the nature of TBI and the difficultly of objectively establishing even the existence of “mild” TBI, the appearance and credibility of the Plaintiff will be extremely important. It will be difficult to obtain an adequate verdict in any mild TBI case if the client has a poor work history, significant criminal history or has a history of having been in multiple accidents or having been knocked unconscious prior to or subsequent to the crash in question.
The presence of “psycho-social stressors” such as a death in the family, divorce, separation, loss of custody of a child and severe financial pressures can provide the Defendant with an alternative explanation as to why the Plaintiff’s level of functioning has declined. Of course, many of these “stressors” will be present in any case involving TBI.
H. Past Mental Health Treatment
Past psychiatric or psychological treatment will also present difficulties for the Plaintiff’s attorney, particularly in cases of mild TBI. It is well known that depression may severely affect cognitive functioning. Attention deficit disorder, borderline intelligence or other learning disabilities will also affect neuropsychological testing. In cases where all “objective” testing is negative and the diagnosis of mild TBI is based upon a neuropsychological evaluation, the Defendant will argue that any deficits on the testing are the result of the pre-existing condition and not TBI. This can be a very effective argument, especially if the client’s pre-existing condition has lasted over a long period of time or has been resistant to treatment.
I. Availability of Lay Witnesses
One of the keys to successfully trying a TBI case from the Plaintiff’s perspective is the use of lay witnesses. In many cases there will be experts with impressive qualifications on both sides. Jurors have a difficult time deciding which experts to rely on. On the other hand, most jurors can readily identify with lay witnesses. Lay witnesses can be extremely effective in establishing how TBI has affected the Plaintiff and how their level of functioning has changed since the time of injury. We contact and interview as many co-workers, friends and family members as we can locate to determine what, if any, changes they have observed in the client. If they do not report observable changes in the client’s behavior or functioning the diagnosis of TBI will be difficult to establish in court. On the other hand, where both sides have well qualified medical experts, a large pool of strong lay witnesses can make the difference between winning or losing a TBI case at trial. It has been my experience that most defense attorneys greatly underestimate the importance of these witnesses to the Plaintiff’s case and that they are seldom deposed before trial.
J. QUALITY OF EXPERTS/TREATING DOCTORS
TBI trials are very expert intensive. In most cases, the Plaintiff will need to offer the testimony of a neuropsychologist, life care planner, vocational rehabilitation expert and, an economist. Many cases will also require a neuropsychiatrist, bio-mechanical engineer, neuroradiologist, and/or an accident reconstruction expert.
One of the key factors in evaluating a TBI case is the quality of experts on both sides and the experience of the Plaintiff’s treating doctors. I strongly prefer to use treating doctors instead of experts retained solely to evaluate the Plaintiff whenever possible. How much experience do the doctors have in the diagnosis and treatment of TBI patients? What percentage of their practice is devoted to TBI? Do they regularly treat TBI patients? How often have they seen the Plaintiff? Is the Plaintiff currently a patient? Did they know the Plaintiff before the injury? Certainly the opportunity to observe the Plaintiff over a long period of time adds strength to the doctor’s opinion about the presence of brain injury, particularly if the doctor regularly treats TBI patients.
K. COST OF MEDICAL CARE
As in any catastrophic injury case, the cost of medical care will be an important consideration in determining the value of the claim. There are many physicians who still believe that the best treatment for mild TBI is to simply wait for time to pass because post concussive syndrome will gradually improve spontaneously. Thus, medical specials in the mild TBI case may be relatively low. Cases where the Plaintiff has been treated at a comprehensive brain injury rehabilitation program or cases where the Plaintiff has ongoing medical needs such as medication expenses clearly have a higher value than those in which the Plaintiff has received little or no medical treatment for their brain injury. A comprehensive life care plan from a qualified life care planner is essential to accurately assess future medical needs in any TBI case.
L. OTHER FACTORS
Many of the factors that are important in the evaluation of any personal injury case are also important factors in the evaluation of a TBI case. How strong is liability? Is there any real factual dispute as to how the wreck or accident occurred? Are any other factors present that might inflame the jury such as alcohol use, excessive speed or other violations of the law? Who is the primary defendant? Is the defendant an individual or large corporation? Has the Plaintiff been involved in other litigation or claims? What amount of insurance coverage available? Is the defendant judgment proof? Does the Plaintiff’s attorney have the skill and resources to properly try the case to a verdict? Can the Plaintiff tolerate the stress and uncertainty of a trial?
The evaluation and settlement of a claim involving mild traumatic brain injury is a challenging task for even the most experienced attorneys and claims personnel. Because the effects of TBI are unique to the injured individual it is difficult to compare cases or make generalized assessments about the value of types of TBI claims. Each case will require careful consideration of a wide range of factors that may affect the ultimate outcome. Unfortunately, it is likely that TBI claims will remain difficult to resolve for many years to come.
Charles G. Monnett III practices law in Charlotte, NC and concentrates his practice in the representation of persons with acquired brain injuries. He serves on the Board of Directors of the Brain Injury Association of North Carolina, the Board of Governors of the North Carolina Academy of Trial Lawyers and the Executive Committee of the ATLA Traumatic Brain Injury Litigation Group.
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