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September 12, 2016 Articles

Recent Developments in Traumatic Brain Injury Litigation

TBI-associated cases number in the millions. TBI settlement payouts number in the millions, too.

By Francis H. "Rasch" Brown III

Football, America’s most popular sport for more than 30 years, is always in the news. In recent years, much of the news coverage has related to the issue of traumatic brain injury (TBI). In 2015, the National Football League (NFL) entered into a settlement with more than 5,000 retired players to resolve a class action concussion lawsuit. That settlement will ultimately cost the NFL $900 million or more. Former players with certain severe brain injuries could be awarded up to $5 million each. These settlements are not the last word on football-related TBI, though. In April 2016, a new study asserted that more than 40 percent of retired NFL players have signs of TBI.

The publicity surrounding the NFL is the most prominent source of heightened awareness in the general population concerning TBI, but TBIs are not confined to the NFL. According to the Centers for Disease Control and Prevention (CDC), in 2010 there were approximately 2.5 million emergency department visits, hospitalizations, and deaths associated with TBIs, either alone or in combination with other injuries. Over the past decade, according to the CDC, TBI-related emergency room visits increased by more than 70 percent.

The overwhelming majority of TBIs are considered mild and require little or no medical treatment. Regardless, the increased incidence and public awareness of TBIs has raised interest in the legal field. If you have any doubt about this point, try Googling brain injury lawyer or brain injury claim. The results are no surprise considering that, according, a Newsome Melton LLP website, “[d]amages claimed for typical brain injury case[s] are almost always over $100,000 and claims in the millions are not uncommon.”

TBI Defined
The term traumatic brain injury certainly sounds serious. And, to be sure, in some cases a TBI can result in life-altering cognitive problems and disability. At the same time, any alteration in brain function by an external force, including being dazed or confused after any accident or losing consciousness for even a few seconds, qualifies as a TBI. As a result, the TBI definition encompasses many minor injuries that have no long-term consequences.

TBI Assessment by Emergency Personnel
Emergency personnel assess for TBI using the Glasgow Coma Scale (GCS) and the CT scan.

The most common means used by emergency responders to evaluate whether a person has sustained a TBI is the GCS. The GCS scoring system is also used by emergency department personnel and intensive care units. The GCS is composed of assessments of eye opening (ranging from spontaneous to none), verbal response (ranging from normal conversation to none), and motor response (ranging from normal to none). An accident victim with brain injury symptoms (e.g., loss of consciousness, a head injury, or headache complaints) with a GCS score of 13–15 is characterized as having sustained a mild TBI. A GCS score of 9–12 is considered to be a moderate brain injury. A GCS of 3–8 is indicative of a severe brain injury and normally involves a prolonged unconscious state or coma lasting days, weeks, or even months. (A GCS score of 3 is assigned to a person who is wholly unresponsive, including someone who is dead.) Although the GCS test can be a simple and reliable method for determining the presence and severity of a TBI, even a GCS score of 15 does not rule out the existence of an injury to the brain.

The CT scan is the most widely used neurological test for TBI in emergency rooms. CT scans are highly effective in detecting acute brain trauma, including bleeding in and around the brain (hematoma), as well as brain swelling (edema). CT scans are, however, more limited in detecting milder TBIs, including concussions that do not involve brain hematoma or edema.

Beyond the GSC and CT Scan: Diffusion Tensor Imaging and Neuropsychological Testing
Many litigated brain injury claims involve patients with a GCS score of 15, a negative CT scan, and no diagnosis of a TBI at the time of initial hospitalization. A subsequent brain injury diagnosis may be based on continuing subjective complaints of depression, anxiety, memory problems, and decreased concentration. However, opportunism and malingering may be factors in some of these diagnoses. In fact, if a TBI diagnosis is supported only by subjective complaints, jurors may conclude that the plaintiff is faking his or her injury or that the plaintiff had psychological problems that predated the accident. For this reason, plaintiff’s attorneys have, with increasing frequency, turned to Diffusion Tensor Imaging and neuropsychological testing to provide what they claim is objective medical support for the TBI claim.

Diffusion Tensor Imaging measures white matter in the brain
One brain injury litigation website refers to Diffusion Tensor Imaging (DTI), an MRI-based neuroimaging technique, as “an exciting new litigation tool.”

DTI analyzes the movement of water molecules in the white matter of the brain. In laymen’s terms, DTI is used to measure white matter tracks and the diffusion of water along those tracks in the patient’s brain and then compare the patient’s level of white matter tracks with the tracks from a normalized group of individuals. According to DTI proponents, abnormally decreased white matter tracks in a patient as compared with a normative group correlate with cognitive deficits in TBI patients. Opponents disagree. Many neuroradiologists view DTI as useful for evaluating TBI in large groups of patients (e.g.,the effect of blast injuries sustained by soldiers). On the other hand, there is no generally accepted data as to what a normal brain looks like at different ages with regard to white matter tracks. In fact, many studies have reported that white matter tracks increased in both acute and chronic phases of TBI.

In light of the lack of generally accepted normative data, the manner in which DTI is being used in brain injury litigation is highly controversial among neuroradiologists. In November 2014, the American Journal of Neuroradiology published a white paper for the American College of Radiology Head Injury Institute and endorsed by the American Society of Neuroradiology, American Society of Functional Neuroradiology, and the American Society of Pediatric Neuroradiology, which concluded thus:

Currently, there is evidence from group analyses that DTI can identify TBI-associated changes in the brain across a range of injury severity, from mild to severe TBI. Evidence also suggests that DTI has the sensitivity necessary to detect acute and chronic TBI-associated changes in the brain, some of which correlate with injury outcomes. These data, however, are based primarily upon group analyses, and there is insufficient evidence at the time of writing this article that DTI can be used for routine clinical diagnosis and/or prognostication at the individual patient level.

M. Wintermark et al., Imaging Evidence and Recommendations for Traumatic Brain Injury: Advanced Neuro- and Neurovascular Imaging Techniques, Am. J. Neuroradiology 1, 3 (Nov. 25, 2014).

Expert testimony is important in most cases, but selection of medical experts in a TBI case may be particularly significant. Many neurologists, neurosurgeons, and neuroradiologists are not familiar with DTI. If you have a case involving DTI, it is critical to retain medical experts who understand this technology and why its use in diagnosing TBI at the individual patient level is controversial. Equally as important, a defense attorney in a TBI case should choose medical experts who are willing to help the attorney gain a full understanding of the medical science applicable to the TBI issues presented in his or her case.

Neuropsychological testing includes numerous, varied standardized tests
A neuropsychological evaluation involves an interview and the administration of standardized neuropsychological tests. An individual’s scores on these standardized tests are interpreted by comparing the individual’s results with those of a person of similar demographic background and with expected levels of functioning.

Almost invariably, neuropsychologists use multiple standardized tests, each of which may lead to dozens of scores. The tests administered may include the following and more:

  • Advanced Clinical Solutions’s Test of Premorbid Functioning (TOPF)
  • Digit Span Test, Wechsler Adult Intelligence Scale, 4th edition (WAIS-IV)
  • Logical Memory and Visual Reproduction Tests, Wechsler Memory Scale, 4th edition (WMS-IV)
  • California Verbal Learning Test, 2nd edition (CVLT-II)
  • Mini-Mental State Examination (MMSE)
  • Trail Making Test A & B
  • Controlled Oral Word Association Test
  • Wide Range Achievement Test, 4th edition (WRAT-4)
  • Wisconsin Card Sorting Test – 64 Card Version (WCST-64)
  • Mazes Test of the Neuropsychological Assessment Battery (NAB)
  • Medical Symptom Validity Test (MSVT)
  • Benton Judgment of Line Orientation Test
  • Test of Memory Malingering (TOMM)
  • Minnesota Multiphasic Personality Inventory, 2nd edition (MMPI-2)

A common, although improper, method in the practice of neuropsychology is to use a handful of “borderline” or “abnormal” scores as indicative of brain dysfunction. If the results from the first few tests do not provide the desired results, there are a dozen more from which to choose. Several peer-reviewed neuropsychological studies have concluded that normal patients often have large discrepancies between their best and worst scores. As such, abnormal scores on neurological testing do not necessarily establish the existence of TBI because inconsistent scores often occur with perfectly healthy adults.

TBIs are a widespread occurrence. Although millions of Americans have sustained mild TBIs without suffering any long-term consequences, a TBI can be a catastrophic occurrence. In any case involving a TBI claim, it is important to determine whether emergency personnel conducted a GCS assessment and/or CAT scan. However, a high GCS score combined with a negative CT scan does not rule out a TBI.

In cases where the only “evidence” of a TBI is subjective, DTI and neuropsychological testing are employed as “proof.” However, what is sometimes claimed to be “objective” medical evidence of a TBI may be nothing of the sort. The use of DTI to diagnose TBIs in individual patients has been criticized by the American Society of Neuroradiology. In addition, neuropsychological testing can be a valuable tool, but a few abnormal scores from a battery of dozens of tests can be improperly interpreted to support a TBI diagnosis.

Despite the problematic nature of a TBI lawsuit, TBI litigation has been embraced by the legal community, and this trend shows no signs of slowing down.

Keywords:litigation,health law, traumatic brain injury, concussions, expert witnesses, CDC, health care, Glasgow Coma Scale, diffusion tensor imaging, neuropsychological testing

Francis H. "Rasch" Brown III is a member of McGlinchey Stafford in its New Orleans, Louisiana, office.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).