Brain injury cases are, in many respects, unique. Unlike orthopedic injuries, which tend to produce relatively predictable verdicts, “mild” brain injury cases can prove very difficult for jurors and often represent the great unknown. Juries can appreciate the devastation a brain injury produces and return a large verdict--but can just as easily reject any evidence of a brain injury and return a very modest verdict. Our responsibility is to educate the jury, without being pedantic, and, more importantly, help jurors understand what a TBI survivor’s life is like.
In evaluating TBI cases, examine the mechanics of the injury. Several basic questions to ask include:
While TBI victims do not manifest a uniform set of symptoms, in assessing whether a client may have suffered a brain injury, counsel should focus on a variety of initial indicia that central nervous system function has been disrupted. They include:
The American Congress of Rehabilitation Medicine has adopted a key definition of mild traumatic brain injury counsel should discuss with treating physicians and use in deposing defense experts.
A patient with mild traumatic brain injury is a person who has had a traumatically induced physiological disruption of brain function, as manifested by at least one of the following:
After release from the ER, clients often may see a chiropractor for neck or back pain long before seeing a neurologist, neuropsychiatrist, physiatrist, or other physician conversant with head injury. As a result, crucial evidence of complaints consistent with brain injury may be documented in chiropractic notes, and for that reason alone, they may be vital, irrespective of the treatment provided. Patient complaints are admissible, of course, as hearsay exceptions.
If you are retained early, ask your client’s spouse or parent to write a journal discussing early symptoms your client is manifesting to make sure that early problems discussed in § B, supra, are not forgotten. Ideally, the spouse/parent, and eventually the client, will continue journal entries. Both should be addressed to you by name and not shared with anyone, to guard against waiving applicable privileges.
Often a Mild Traumatic Brain injury will not be evident on diagnostic tests such as CT scans, MRIs or EEGs. As a result, neuropsychological testing can be important in gauging the existence and extent of cognitive impairments. See discussion at 9-11, infra. Be wary of defense experts testifying to negative results on any diagnostic test; such testimony is inadmissible hearsay under McMunn v. Tatum, 237 Va. 558, 379 S.E.2d 908 (1989). Moreover, CT “seems to have little value in identifying diffuse axonal injury commonly seen in patients with mild brain injury.” Rosenthal, Mild Traumatic Brain Injury Syndrome, 22 Annals of Emergency Medicine (1993)
While CT scans and MRIs are almost invariably negative in mild TBI cases, EEGs may be abnormal. Be prepared to identify as an expert and call the physician who interpreted the EEG as abnormal, since under McMunn other experts may rely upon an EEG but may not testify to the results unless defense counsel opens the door on cross- examination. Discuss the significance of why and how the EEG is abnormal with all of your TBI expert witnesses.
PET scans are coming in vogue in TBI cases but will be fought by the defense. Experts should use a positive PET scan as confirmatory of a TBI diagnosis, rather than as the sole basis for concluding that the patient suffered a brain injury.
Many patients who sustain a traumatic brain injury do recover. Many do not. The long-term condition patients must deal with involves a host or problems under the rubric of “Post Concussion Syndrome” (PCS). Counsel must be aware of the long-term symptoms of PCS, to gauge whether clients with a head injury have not recovered and are likely not to recover. They include:
If there is one cardinal rule in preparing and trying a brain injury case—especially where the impairments are subtle to the outsider—it is to rely upon lay witnesses to tell the story. Counsel must interview parents, spouses, children, friends, co-workers, and supervisors to learn how the brain injury has affected your client and to determine who can effectively explain the real life consequences of impaired memory, concentration, attention, etc. The author tried two TBI cases within a year in which one jury, armed with superb before and after witnesses, returned a verdict in excess of $2 million, while the second jury, with very little before and after testimony, found no brain injury and returned a verdict of $220,000.
Colleagues from work can be especially effective, particularly if the witness does not normally socialize with the TBI survivor.
Lay witnesses are effective for another reason--the defense usually has none, and if the jury tires of hearing competing experts, ask them to judge by the words of those persons who live and work with your client every day.
Lay witnesses can be an effective antidote to defense examiners who insist that in the quiet confines of a deserted office the patient performs fairly well. Schapiro & Sacchetti note that often problems with attention “are difficult to detect in a structured, one-to-one situation with an examiner or therapist. However, the problems become more apparent when the individual is required to attend to information in a more natural environment. One reason for this involves the inability of these patients to shift attention effectively from one task to another or to deal effectively with distractions.” Schapiro & Saachetti, Neuropsychological Sequelae of Minor Head Trauma, in Minor Head Trauma 86 (Mandel, et al, eds. 1993)
Physicians seeking to explore the existence and extent of cognitive impairments from a head injury may refer patients for neuropsychological testing. That testing, performed by neuropsycholgists, can identify specific deficits, especially in cognitive tasks sensitive to traumatic brain dysfunction. The neuropsychologist, however, must determine pre-trauma function in order to render a judgment as to whether any decline has taken place. Performance on certain tests is resistant to brain injury and may assist in such an assessment, but counsel should be prepared to locate and provide academic records, work records, standardized test scores (SAT, IQ, etc.), and other materials to assist in developing a pre-injury baseline.
In Virginia, neuropsychologists are restricted in the opinions they may offer, and they may not testify to causation of brain injury. John v. Im 263 Va. 315, 321, 559 S.E.2d 694, 697 (2002)(“An opinion concerning the causation of a particular physical human injury is a component of a diagnosis, which is part of the practice of medicine.”)
Beware of defense neuropsychologists who will render one of two opinions. First, no brain injury exists, since the patient’s scores are in the “normal” range. That begs the question as to how the patient would have performed pre-trauma and, at least for high functioning patients, is invalid: a false-negative interpretation incorrectly labels an individual as unimpaired when, in fact, he or she does have organic brain damage. . . . . [For example,] [a]n individual with superior levels of premorbid functioning may score within the unimpaired range on testing, although the performance clearly indicates a deterioration attributable to brain damage.
Schapiro & Saachetti, Neuropsychological Sequelae of Minor Head Trauma, in Minor Head Trauma 101 (Mandel, et al, eds. 1993)(emphasis added).
In addition, the spectrum of “normal” scores can fall as low as the 25th percentile. Make certain you ascertain the percentiles, if the defense neuropsych report fails to provide them.
Second, if the test scores would otherwise show an impairment, the defense neuropsychologist will opine that the patient is a liar/malingerer/faker or out for secondary gain. Such opinions have met with mixed admissibility rulings; see Roger Creager’s excellent foray into this area in the ____, 2002 VTLA Law Journal. [cite] See also Davis v. State, 527 So. 2d 962, 963 (Fla. 5th DCA 1988)(“In testifying the daughter was ‘being frank’ according to his validity scale in respect to having been the victim of child abuse, Nickeson was invading the province of the jury and his ‘validating’ testimony should have been excluded.")
Certain speech therapists specially trained in TBI rehabilitation provide therapy to TBI survivors. The therapy does not involve problems with articulation but, instead, addresses issues as diverse as memory, organization, planning, prioritizing-–a raft of issues that often fall under the rubric of “executive functioning.” If your client has treated with such a therapist, speak with them; and consider calling them as a witness, if only to document how hard your client has tried to get better and to document, clinically, the deficits others will discuss. See Thom v. Benson Chevrolet Co., Inc. 759 So.2d 988, 992 (La.App. 2000.) (“The court also heard evidence from Brenda Crawford, an expert in speech pathology. Ms. Crawford testified that she conducted an evaluation of Ms. Thom . . . . [and found] problems with short-term memory, organization and word fluency, auditory processing, speed and accuracy, abstract reasoning, and a very mild problem with articulation. . . .”)
Emotional, behavioral and psychiatric disorders, and personality changes may often accompany traumatic brain injury.
Various neurobehavioral disorders have been reported after MTBI. Common behavioral traits include irritability, sleep disturbance, fatigue, depression, anxiety, decreased libido, and emotional liability [sic].
Zasler, Acute Neurochemical Alterations Following Traumatic Brain Injury: Research Implications for Clinical treatment in 7 Journal of Head Trauma Rehabilitation (1992).
Irritability and impulse control problems are classic frontal lobe injuries. In one case in which the author was involved, a young woman with no personal or family history developed bi-polar disorder, which her treating psychiatrist attributed to her head injury. The Diagnostic and Statistical Manual on Mental Disorders, (4th ed.), published by the American Psychiatric Association, touches upon this topic.
One of the most important roles counsel can play in TBI cases is to listen, at length, to your client’s concerns. As obvious as that might be, too often TBI survivors’ complaints are dismissed as trivial, emotional in nature, ascribed to some other cause, or faked. They are real, devastating, and yet invisible. As Dr. Anthony B. Joseph, Associate Clinical Professor of Psychiatry at Harvard Medical School has written:
Its name is a misnomer in the sense that a so-called 'mild’ brain injury can devastate the functional and interpersonal life of an individual by causing significant dysfunction in the realms of attention, cognition, and memory while leaving them with an unchanged external appearance. This deceptive and apparent physical 'normality' can, in turn, lead a person's symptoms to be dismissed or rejected as 'not real.'
Brain injury survivors often face the challenges and competing demands of working, raising a family, maintaining relationships, and caring for a home. In such cases, they may require child-care and services in the home beyond what overwhelmed family members can be expected to provide. Valuing the cost of such replacement services, as well as future medical and therapy needs, falls within the bailiwick of a life care planner. Such experts regularly testify in Virginia. Whiteside v. GRTC, 1994 WL 1031212 (Va.Cir.Ct. 1994); Ballance v. Wal-Mart Stores, Inc., 178 F.3d 1282 (4th. Cir. 1999)(Table, Text in WESTLAW), (Unpublished Disposition, 1999 WL 231653)(“[l]ife care plans are often used in litigation to determine the cost of long-term care.”); See Murphy v. U.S., 833 F.Supp. 1199, 1207 (E.D.Va.1993) (District Court award of $1,390,510.00 for lifetime cost of live-in companion/homemaker, adjusted for inflation and present value.)
In an oft-overlooked provision, the Code provides that treatises recognized as reliable by an expert—plaintiff or defense—can be read to the jury, if provided to opposing counsel 30 days before trial. Va. Code Ann §8.01-401.1. While no expert should lecture the jury with study after study, the selective use of TBI literature may well assist, especially on cross, if, in deposition, a defense expert has conceded that an article or other source is authoritative.
Invariably, the defense will request one, if not two or three, defense examinations in TBI cases. Far more so than orthopedic exams, such DME’s are fraught with danger. The exams often involve lengthy clinical interviews in which an unscrupulous examiner may effectively depose the plaintiff, asking questions of dubious propriety and reporting statements of dubious reliability. For example, in a recent case, a psychiatrist queried one of our clients as to how he came to see certain treating physicians who happened to be referred by another lawyer--thus effectively waiving his attorney-client privilege.
While Virginia has no clear rule permitting counsel (or forensic nurses) to attend, the request should still be made. As the court in Jakubowski v. Lengen , 450 N.Y.S.2d 612, 614 (1982) explained:
A physician selected by defendant to examine the plaintiff is not necessarily a disinterested, impartial medical expert, indifferent to the conflicting interests of the parties. The possible adversary status of the examining doctor for the defense is, under ordinary circumstances, a compelling reason to permit plaintiff's counsel to be present to guarantee, for example, that the doctor does not interrogate the plaintiff on liability questions in order to seek damaging admissions.
450 N.Y.S.2d at 614. See also Zabkowicz v. West Bend Co., 585 F.Supp. 635 (E.D.Wis. 1984) (holding that either a third party or a recording device was necessary to assure that the defendant's expert does not probe beyond permissible limits and the exam become transformed into a de facto deposition). See also See, e.g. McCorkle v. Fast, 599 So.2d 277, 278 (Fla. 1992)(ruling that patient's counsel or someone operating under his direction may attend the medical examination).
If the Court will not allow attendance, request that the exam be videotaped or recorded as an alternative. The taping should be done by a paralegal, even if the paralegal cannot attend the interview itself.
In Florida and New York, courts have held that DMEs may be transcribed by court reporters. See High v. Burrell, 509 So.2d 385 (Fla. 1987); Milam v. Mitchell, 274 N.Y.S.2d 326 (N.Y. 1966); Stakley v. Allstate Insu. Co, 547 So.2d 275 (Fla. 1989). In Florida, the DMEs can be transcribed by a court reporter "unless a valid, case-specific reason is given by the doctor why such would be unreasonably disruptive, and evidence is presented further that no other medical specialist is available who will conduct the examination under those circumstances." Broyles v. Reilly, 695 So.2d 832, 834 (Fla. 1997). The Florida Supreme court has observed that the "burden is on the party opposing the presence of third persons to establish grounds for prohibiting the third party's presence" and reasoned that:
It is the privacy interest of the petitioner that is involved, not the privacy interest of the examiner, and if the petitioner wants to ensure that the compelled examination is accurately preserved, the petitioner should generally be entitled to do so.
Lunceford v. Florida Central Ry, 728 So.2d 1239, 1241 (Fla. 1999).
In Florida, courts have also repeatedly held that DMEs may be videotaped. See Broyles v. Reilly, 695 So.2d 832, 834 (Fla. 1997); Cimino v. U.S. Security Insurance Co., 715 So.2d 1092 (Fla. 1998); Lunceford v. Florida Central Ry, 728 So.2d 1239 (Fla. 1999). In Indiana and New York, courts have held that defense medical examinations can be audiotaped. See Jacob v. Chaplin, 639 N.E.2d 1010 (Ind. 1994); Barraza v. 55 West 47th Street, 548 N.Y.S.2d 660 (1989).
DMEs in TBI cases present a unique opportunity to interrogate the Plaintiff, to create inconsistencies in testimony, and otherwise to attack the plaintiff. Force the defense to justify, precisely, each DME and do not agree to multiple DMEs, especially by the same examiner. See Murdaugh v. Queens-Nassau Transit Lines, 113 N.Y.S.2d 804 (N.Y.A.D. 2 Dept. 1952) (“There is no change in the situation here that would warrant a second examination.”); Moore v. Calavar Corp., 142 F.R.D. 134, 135 (W.D.La.1992).
In Wilczynski v. Lackawanna County Multi-Purpose Stadium Authority, 42 Pa. D. & C.4th 337, 1999 WL 1442426 (Pa.Com.Pl. 1999), the defense, in a brain injury case, sought to compel the plaintiff to undergo testing by a neuropsychologist after having already been evaluated by a defense psychologist. The court denied the defense request, finding that “there are no reasons yet advanced by the defendant to justify the necessity of the plaintiff undergoing a second medical examination by a new physician”. Id. At 344-45. The court did permit a second exam by the original defense examiner, if he judged it necessary, but, in part, because the plaintiff had agreed to a second exam. Id. at 346.
Read Rule 4:10 each time you receive a DME request. If the exam is to be done pursuant to an Order, the Rule requires:
While the subtle problems that stem from mild TBI may seem difficult to treat, high level speech therapy can assist patients by teaching compensatory strategies and comprehensive outpatient TBI rehab programs can significantly help more seriously injured victims. If your client has not treated, other than ER and a few visits to a neurologist, ask your client to ask his or her neurologist whether referral would be appropriate. If the treating physician believes referral is not appropriate, he or she will at least be in a position to explain at trial why your client has not treated more aggressively. If the physician makes a referral, hopefully, your client will benefit.
Last, but certainly not least, lawyers considering a TBI case must take great care in case selection. Taking a mild TBI case to trial can entail costs of $50,000-100,000, and hundreds of thousand of dollars of counsel’s time. Outlined below are four simple considerations.
TBI victims, especially mild TBI survivors, often desperately need help in so many ways. Representing such clients provides lawyers the opportunity to help them secure rehabilitation services others may have overlooked, to validate and explain symptoms others may not have understood, and to provide just and fair compensation for what is often an unending nightmare.