Mild & Minor Traumatic Brain Injury: An Unfortunate Oxymoron
Mild & Minor Traumatic Brain Injury: An Unfortunate Oxymoron (Part 1)
Timothy R. Titolo
Attorney
I have often heard it said “if it’s to the brain, any injury is significant!” Huh? Hello? Is anyone paying attention? I said, " ‘if it’s to the brain, any injury is significant!’ “
Introduction
The literature and research has come a long way in helping to provide answers and guides for the previously disbelieved and improvable "mild brain injury” and "post concussion syndrome.” As a trial lawyer, representing victims and families who have suffered from traumatic brain injury, I have immersed myself in the medical literature in an attempt to better represent and understand my clients and their injuries. The purpose of this article is to provide a legal perspective on the information available and the misconceptions lay people and many lawyers have regarding "mild brain injury.”
As lawyers, medical practitioners, and lay people, we are all probably too familiar with the results of paraplegia, quadriplegia, neurodisease, and varying degrees of dementia. These are all spinal cord injury and traumatic brain injury outcomes. What about those who Ronald Ruff, Ph.D., neuropsychologist, has coined "the miserable minority?”
Defining and Understanding Mild Brain Injury
Trauma comes in as the third leading cause of death in the United States following only cardiovascular disease and cancer. (Trunkie, 1983). With the advent of technologically enhanced mode of transportation, motor vehicle travel, cases of head trauma have proportionally increased. Motor vehicle crashes are responsible for a large majority of head trauma. As emergency medical care improves and becomes more available and developed, individuals in our modern society are surviving the acute phases of their injuries and require continued rehabilitation.
What about those whose outcomes are not visibly evident as with paraplegia? Science and medicine have brought the current state of knowledge to a universal agreement that microscopic sized injury to the neurons and axons of the brain can have devastating effects on a person”s cognitive ability, psychiatric and psychological outcomes. And, as one would expect, these types of microscopic lesions and their outcomes are of greatest controversy between medical practitioners and legal professionals. Judges do not understand the specifics of diagnostic testing and yet are allowed, under Daubert to act as the gate keeper for allowing evidence to be brought into a courtroom to help further the understanding of the fact finder. Many lawyers simply do not have the understanding or education necessary to properly pursue a claim for traumatic brain injury. And finally medical practitioners of varying skill levels will provide opinions about matters for which they have been given, many times for the defense, an inadequate base of information to make a diagnosis. This results in Dr. Ruff”s "miserable minority.”
A closed head injury occurs when the soft tissue of the brain is forced into contact with the hard, bony, outer covering of the brain, the skull. Along with the head injury, the average patient usually experiences neck and back injuries. Mild closed-head injuries can occur after a severe neck injury without the head actually striking any surface. The severity of the injury can range from mild to more severe. The symptoms are worse when there is a rotational component to the head injury in addition to back and forth movement of the head. In milder injuries with post concussion syndrome, loss of consciousness need not always occur. There is, however, always some alteration of consciousness: some interruption of brain function. Sometimes a patient remains confused or agitated for a period of time following a closed head injury. With milder injuries, loss of consciousness usually lasts less than an hour (Bernad, 1998).
PRACTICAL NOTE - One must be on guard of medical practitioners hired by the defense who justify their diagnosis and conclusions on the assumption that there was no loss of consciousness. Typically a witness to the patient”s loss of consciousness is not available. Usually the first one to the scene might be a bystander coming to provide aid or the ambulance paramedic who arrives some minutes after the event. The defense medical practitioner will look at the Aevidence available” and conclude from the ambulance and emergency room records that, if they do not indicate a loss of consciousness, then it is reasonable to assume there was none. And, very frequently, these medical practitioners are not provided with deposition testimony or other evidence or information from other observers who may have described the injured party as disorientated or passed out, etc.
All too often I have gotten the defense medical examiner to agree that being provided with Aadditional information” could change their diagnosis. Then I hear something to the affect that since we do not live in a Aperfect world” and we are dealing with time as a Acommodity” such Alimitless” information is not obtainable. What this means, is since the reviewing doctor only got paid to spend an hour or whatever with the patient, there was not enough compensation involved to allow for the sincerest evaluation of the patient.
For instance, I rarely see a neurologist or neuropsychologist, hired by the defense, request of the defense lawyer, information to help in the diagnosis and conclusions. This should certainly not be missed and is a great opportunity to discredit that witness. Rarely has the defense medical examiner taken the time to review what people, who have known the patient, have noticed as changes since the trauma. Is this relevant? You bet it is. Did Dr. Ruff do it in the case at hand-absolutely not! Why? Because he did not live in a Aperfect world” and did not have the Afunding” to do a more extensive evaluation. Ironically, the information had already been made available to his hiring lawyer who skipped getting information from these people before hiring their expert neuropsychologist.
