Traumatic Brain Injury Tips by Stewart Casper, Esq.

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I. Introduction

The goal of this paper is to offer to patients, families, and lawyers words of general advice from a trial lawyer with over forty years of experience handling traumatic injuries to the head and brain. My advice certainly is not intended to supersede or replace the advice of a health care professional. Rather, I will point out legitimate issues where medical or other health providers may make recommendations that may be useless or counter-productive. I will also underscore behaviors on the part of injured individuals that will potentially undermine the ability to successfully prosecute a claim for full compensation. My perspective is informed by years of trial experience in this field, as well as the assiduous study of the relevant medical and other scientific literature.

II. The Truth, the Whole Truth

It should go without saying, but it is essential and imperative that throughout the health care and legal processes, the truth be the guiding principle. In that regard, a complete account of one’s prior medical, psychological, education, social, and employment histories are important. This concept includes behaviors leading up to the traumatic event, and if applicable, the facts relating to substance use or abuse, mental health issues, as well as risk-taking behaviors. I always assume that the other lawyer will be smarter than I am and will uncover confounding facts and embarrassing details. It is always better to assess any negatives about a case from the beginning. This applies to the prior histories mentioned above. Sooner or later, you should expect that the “skeletons in the closet” will be exposed. It is far better to plan for and deal with potentially compromising information from the outset.

Notably, there are no guarantees that the information you provide to health care providers will be accurately recorded. That is a scary prospect. The integrity of one’s medical records depends not only upon the written and oral information provided by or on behalf of the patient, but also depends on the accuracy with which that information is summarized and recorded by health care providers. In addition, with the advent of electronic medical records (“EMR”), there are often inaccurate entries made in your records. This can be the result of a physician or other health care provider mischaracterizing your account of prior history, problems with your communication skills that can be a symptom of TBI/post-concussion syndrome, or the failure to use the templates for EMR properly. EMR generally rely upon templates that use drop-down boxes with default entries reflecting that absence of a problem. Thus, the failure of the provider to take the time to populate each drop-down box or blank in the template may generate inconsistent information. Such an occurrence can suggest the absence of a sign or symptom that is one of the patient’s complaints.

One potential source of a list of your symptoms can be found by using a checklist or creating your own handwritten or typed list to provide to your health care providers. Examples of common signs and symptoms of traumatic brain injury/concussion and post-concussion syndrome (“PCS”) can be found in texts and published scientific papers as well as online. For example, the Center for Disease Control website lists several of the signs and symptoms of concussion.

III. Diagnosis

A concussion is a brain injury. Health care providers are generally reticent to provide a diagnosis of brain injury following a head injury where the injury is perceived to fall within what is perceived and often called a mild traumatic brain injury (mTBI). Rather, there is an institutional or professional preference to refer to a “less severe” injury as a concussion. The label seems to be less ominous and a large percentage of patients who suffer a head injury do make at least what appears to be a complete recovery. The cohort of such patients would include those experiencing sports concussions, falls, industrial and work-related injuries, and other trauma including motor vehicle crashes or accidents. A person can suffer a traumatic brain injury with or without a loss of consciousness and with or without an actual impact to the skull, such as in a rear-end collision with an acceleration/deceleration injury – often referred to as whiplash. Further complicating the diagnosis of a brain injury and statistics that are kept by governmental agencies is the frequent failure of the injured person to seek prompt medical attention either at the emergency room of a local hospital or at a physician’s office.

As if these variables were not sufficiently confounding, understanding the nature of hospital emergency departments helps to understand that many brain injuries go undiagnosed in emergency rooms. The care provided in emergency rooms is designed to triage patients for potentially life and limb-threatening injuries. A very small percentage of head injury patients present with life-threatening injuries which are generally diagnosable relying on the Glasgow Coma Scale (“G.C.S.”). The G.C.S. is used to assess the relative level of consciousness; the CT scan of the brain is used to identify intracranial bleeding (subdural or epidural hematoma or other hemorrhages) and skull fractures, and a physical examination including a neurological examination that covers a cranial nerve examination is performed in an effort to identify other potential injuries and to include and exclude possible other life-threatening conditions. The breadth of an emergency department evaluation can be interpreted as normal but will not rule out a traumatic brain injury that could result in a persistent post-concussion symptoms. For that reason, follow-up care is imperative if presenting symptoms persist or worsen. Not surprisingly, every hospital that encounters a head injury patient in the emergency room, particularly where a diagnosis of concussion is made, will only discharge a patient with written instructions about returning to the hospital if symptoms persist or worsen.

While a neurological examination, whether performed by an emergency physician or even a neurologist, may detect abnormalities, any such additional problems may correspond with a head injury or maybe the product of additive or co-morbid conditions rather than alternative diagnoses to TBI. Moreover, while a standard neurological examination will include (but not be limited to) an examination of mental status, memory, processing speed, and vision, these aspects of a neurological examination are relatively superficial compared to more detailed cognitive testing performed by a neuropsychologist and vision testing performed by a neuro-optometrist. A neuro-optometrist performs a different type of assessment of vision that is designed to determine whether there are vision issues related to the eyes, as opposed to problems that may be related to the brain. Oculomotor dysfunction including convergence insufficiency can cause or contribute to problems with close vision, seeing double, and/or headaches. An additional problem nearly always overlooked in the emergency room is damage to the nerves that serve the senses of taste and smell – the olfactory nerves. This sort of damage generally does not present quickly, but rather emerges over the course of recovery. There are at least three reasons for the late emergence of these problems: 1) hormonal changes including adrenaline require that the body first responds to the overall trauma, and the senses of smell and taste are not high on the list of priorities – particularly when there are other injuries including orthopedic injuries that can be as simple as a neck strain; 2) the Neurometabolic Cascade has become generally accepted as the post-trauma chemical, metabolic and electrical process that occurs in the brain following the primary traumatic injury. This secondary injury process can cause the death of brain cells – both neurons and axons and progresses over the course of hours, days, weeks, and months following the initial trauma; 3) the emergency room is not an optimal location to confront the sense of taste and the sense of smell because a hospital is generally overwhelmed by the odor of antiseptic, and 4) subtle deterioration of axons over time is challenging to identify for the patient who may not realize the loss unless specifically queried or tested. Sometimes the only clues might be that the patient “is using too much salt in the soup” or “doesn’t enjoy eating like before.” Understandably, those discoveries take some time.

IV. Be Cautious In the Presence of Health Care Profit Motive

Health care is a big business. Through much of the nation and certainly in Connecticut, major hospital-related networks have consolidated what was formerly multiple private services and some have opened concussion clinics. Moreover, within these healthcare networks, physicians are financially incentivized to refer concussion patients to captive concussion clinics where a staff neuropsychologist screens the patient and then generally refers the patient for occupational, speech, and/or physical therapy. From my perspective as a trial lawyer, this is a bad practice. First, for someone with a personal injury claim, the type of cursory neuropsychological assessment used in a concussion clinic cannot be a substitute for the type of rigorous evaluation performed in a forensic neuropsychological evaluation. At Gaylord Hospital in Wallingford, CT, the staff neuropsychologists historically perform “a neurobehavioral status exam” (NSE), relying upon a cursory form of examination dominated by the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS). The NSE is used to follow a patient’s progress, but the interaction between the staff neuropsychologist and the patient is so limited it defies logic to believe that such cursory involvement is sufficient to yield reliable results.

At the Concussion Clinic operated by Stamford Health System at Chelsea Piers in Stamford, CT, the staff neuropsychologist monitors the patients’ symptoms with serial administration of the Impact Test. The Impact Test is a viable but limited measure of a number of cognitive functions and, when administered serially, can offer some insight into whether the patient is improving cognitively.

These examples of traumatic brain injury care are problematic for anyone who is or may become engaged in the claim process. First, neither serial administration of the Impact Test nor the limited screening used at Gaylord provides the type of data and professional involvement that is essential in a matter that will be litigated. Neither the methodologies employed nor the professionals involved gather sufficient data to withstand cross-examination. Moreover, the assessments are so superficial that they can and do provide misleading information. Second, absent documentation with a disclaimer that the screening is limited and should not be relied upon in a medical-legal context, these clinics have the potential to be prejudicial to the patient involved in litigation. Third, in the cases of both Gaylord Hospital and Stamford Health System’s Concussion Clinic, the individual providers and institutions have proven unwilling to cooperate in the face of requests for meetings and discussions and have used retained lawyers to prevent or limit court testimony. Do not use these facilities or others with similar problems and limitations. The irony is that these institutions want the trauma business but don’t want to help their patients outside of their clinics.

The alternative for neuropsychological assessment is to work with your attorney. A forensic neuropsychological assessment is expensive. It could cost $10-20,000. Major medical insurance is not going to pay that cost. Because the need for a forensic neuropsychological evaluation is litigation-related, your trial attorney should be prepared to pay that cost as a litigation expense, when appropriate. It is a major mistake to try to get by with a low-cost neuropsychological exam because such a course can compromise the entire claim.

V. Neuropsychology Is Just One Aspect of Assessment

It is sad but true that not all physicians truly understand brain injury. Even in specialties thought to be geared toward TBI-like neurology, not all neurologists have focused their attention on the brain injury field. The same applies to physiatrists – doctors of physical medicine and rehabilitation. By way of example, about two months before preparing this paper, I took the deposition of a board-certified neurologist who saw a client of mine one time following a substantial rear-end motor vehicle crash. After examining my client and despite daily headaches since the crash, the neurologist concluded that my client was suffering from anxiety and not post-concussion syndrome. Yet he was totally unfamiliar with the last ten years in the scientific literature in the brain injury field. He was also unable to explain the Neurometabolic Cascade, despite it being a topic covered in the continuing medical education programs of the American Academy of Neurology.

Importantly, some neuropsychologists have an inflated view of their own importance and routinely appear as defense experts in cases. These defense witnesses generally intone some combination of reasons that the injured person does not suffer a brain injury or has no lasting effects of a concussion. These defense claims may include:

  1. The impact was not sufficient to cause a brain injury;
  2. The vast majority of concussion patients recover within 90 days;
  3. The progression of symptoms following the injury is inconsistent with the course of the injury;
  4. The neuropsychological testing revealed inadequate effort;
  5. The neuropsychological testing did not include any personality testing that contained symptom validity scales.
  6. The patient’s ongoing symptoms are attributable to co-occurring psychological problems.

Reasons 1-3 simply do not stand up under scientific scrutiny. There has never been a serious dispute that a cohort of the least severe TBI/concussion patients does not fully recover. The estimate of the size of persistent post-concussion sufferers has been 10-15%, but the origin of that figure was anecdotal and reinforced largely by a cartel of neuropsychologists who have made their living doing defense work. A series of peer-reviewed papers published over the last few years based upon longitudinal or retrospective analysis with patient follow-up has actually documented persistence of symptoms or neural disruptions in brain architecture as far as 10 years following injury. “Differences in Brain Architecture in Remote Mild Traumatic Brain Injury,” Journal of Neurotrauma (2017); “Longitudinal Study of Postconcussion Syndrome: Not Everyone Recovers,” Journal of Neurotrauma (2017)(approximately 50% have long-term cognitive impairment); “Mild Traumatic Brain Injury (mTBI) and chronic cognitive impairment: A scoping review,” PLOS│ONE (2017) (approximately 50% have long-term cognitive impairment).

While effort (see Reason 4 above) during psychometric testing is an important component of an assessment, it is often conflated with the idea that someone is malingering. There are two major problems with the idea that anyone can opine that someone is malingering. First, there is no test that can prove someone is malingering, because malingering requires “intent.” Second, there are multiple reasons that an examinee might be perceived to be exerting less than his or her best effort. Those reasons include impairment of the motivation center of the brain – the limbic system buried deep below the frontal lobes; pain; and co-occurring or co-morbid conditions.

Symptom validity testing (Reason 5) presents a different type of problem than effort testing. Brain injury is heterogeneous. It comes in all shapes, sizes, levels of severity, and co-occurring conditions. Individual response to an acquired brain injury will depend not only upon the way that the external force caused the injury, but also the dynamic resilience of the individual both in terms of structure and psychological sequelae. Moreover, personality inventories (the most common of which is the MMPI-2 and the MMPI-2-RF) were never normed or standardized on the TBI/concussion population. Therefore, a patient with complaints consistent with a persistent post-concussion syndrome will invariably have an elevated somatic symptom scale – formerly called the Fake Bad Scale.

It is too easy for a defense neuropsychologist, particularly someone who may have never examined the subject, to blame symptom presentation on co-occurring or pre-existing psychological problems (Reason 6). That can always be a fallback position for the defense. However, to prevail in that fashion, the “before and after” evidence would need to be very compelling and include input from collateral sources.

Another reason that neuropsychologists have an inflated view of their contribution to the inclusion or exclusion of a brain injury diagnosis is that they are not licensed to diagnose or evaluate the physical injuries that fall under the umbrella of post-concussion syndrome. Post-concussion migraine headaches, balance disorders, seizures, and oculomotor dysfunction can be debilitating standing alone or in combination with a constellation of other physical problems that are beyond the expertise of neuropsychologists.

VI. Continuity of Care

Many people who suffer from post-concussion syndrome become anxious, depressed, frustrated, and isolated by their plight. It is understandable because, for problems that originate because of brain injury, there often is no effective treatment. While various therapies may provide some relief to strengthen weaknesses and teach compensatory strategies, there is no known cure for persistent post-concussion syndrome. It is important that frustration from the failure to recover does not lead to the abandonment of treatment or the failure to follow treatment recommendations. Such failures may limit recovery, alienate treating health care providers, and provide an insurance defense lawyer with fodder to cross-examine you and your health care providers. As to the last consideration, I think that “gaps in treatment” can be interpreted to mean that the patient is not that injured.

In the end, use your hopefully knowledgeable attorney as a resource to provide alternative solutions to be considered to improve your health, accommodate your disabilities, and plan for your future.