Why Understanding TBI is Critical for Personal Injury Attorneys
Posted by Aaron Deshaw on May 09, 2019
I thought I would provide some insights into why the upcoming Trial Guides Brain Injury CLE is directly applicable to plaintiffs' lawyers. By way of background, I am a retired doctor who now practices personal injury law in addition to running Trial Guides. At any given time, approximately 90–95 percent of my clients have traumatic brain injuries.
Traumatic brain injury legal cases involve a number of issues that must be established during a case-in-chief. They also involve some unique defenses that are not normally encountered in personal injury cases. In addition to dealing with these issues in a trial, the same issues must be addressed in a demand letter to an insurance company during a prelitigation attempt to settle, as well as in mediations and in arbitrations.
The unique aspects of traumatic brain injury cases primarily involve the following:
1. Identifying the extent of the injury: Brain injuries carry with them potential changes in cognition, behavior, neurological function, vision, hormones, speech, sleep, vascular function, the GI system, autoimmune conditions, autonomic nervous system function (including dysautonomias), and much more. In addition, increasing medical literature supports neurodegeneration after TBI, resulting in an increased likelihood of Alzheimer’s Disease, Parkinson’s and other neurodegenerative conditions. TBI cases often have associated injuries including C1 vertebral instability, brainstem problems, Chiari Type II (tonsillar ectopia of the cerebellum), inner ear conditions, and conditions like PTSD and Major Depressive Disorder. The first part of this CLE is aimed at helping lawyers and doctors identify a traumatic brain injury, the symptoms associated with TBI, and all associated injuries when the client comes to their office. We know that if the injuries are not diagnosed and charted, the settlement offer and the trial outcome will not provide fair compensation to the TBI survivor.
2. Neuropsychology and psychological tests: The most significant battle in traumatic brain injury cases is the neuropsychological and psychological testing that occurs in these cases. For the case-in-chief, plaintiffs' counsel must establish that the client has a traumatic brain injury by a preponderance of the evidence. Given that 80 percent of traumatic brain injuries have no positive brain imaging findings on MRI or CT, and since frank neurological findings are only present in approximately 20 percent of TBI cases, neuropsychological testing is the primary method of proving or disproving a traumatic brain injury during the case-in-chief. But this area is fraught with problems. First of all, given the copyright protection of the testing, lawyers cannot get access to the "raw testing” (questions, answers, testing books) done by the treating neuropsychologist or the defense neuropsychologist. A bigger problem in many cases is the defense allegation of malingering or somatoform disorder, which they will claim through their testing can be assured at “a high likelihood of probability.” It is nearly impossible to defeat that defense unless you know how the defense neuropsychologist is misleading the judge and jury. At the Trial Guides Brain Injury CLE, you will learn that a defense neuropsychologist invented a test called the “Fake Bad Scale” and suggested this test can detect malingering in a test subject. You will learn that there are substantial problems with the validity of that test and that lawyers should be able to keep it out of evidence or discredit the findings because the Fake Bad Scale is scientifically unreliable in most cases. Somewhat similarly, personality tests, including the MMPI, are often used by the defense to suggest that the client has a personality disorder rather than being legitimately injured. But, a lawyer educated in these tests, who understands how to evaluate the testing data, can demonstrate to a jury why it is that the true symptoms of the injuries creating the abnormal testing scores and that it is not a personality disorder. Understanding these issues make the difference between winning and losing a brain injury case, and that makes a difference in the settlement offers you receive. A substantial portion of the Brain Injury CLE is being presented by one of the leading forensic neuropsychologists in the country, Richard Perrillo, PhD, who will teach lawyers about these tests, how the testing should be done in a forensic setting, problems with testing, and how to understand the testing results. As a lawyer who handles TBI cases, I assure you this information is absolutely critical for lawyers handling traumatic brain injury cases. I believe that lawyers interested in handling TBI cases would greatly benefit from being able to understand neuropsychological and psychological testing better.
3. Neurology: Only a small percentage of traumatic brain injury cases have frank neurological changes that a neurologist will find during a standard neurological examination. But, there are subtle neurological changes that can be found in a more detailed neurological evaluation—notably visual system changes, which some studies indicate is the most reliable indicator of brain injury and which cannot be faked. There is also testing to objectively demonstrate these changes—namely computer-based visual system testing and balance testing. Most lawyers (and many doctors) are unaware of these tests that can objectively verify TBI. Additionally, there is a wealth of medical literature that demonstrates the long term effects of TBI, including causation of Alzheimer's and Parkinson's, as well as other neurodegenerative conditions. This helps lawyers understand the broader injury causation and permanent consequences involved in a TBI case. The neurology section of this CLE is presented by Dr. Glen Zielinski, an internationally known doctor of choice for Olympic athletes, professional athletes, and other high performance individuals. Dr. Zielinski will discuss a wide range of health conditions caused by TBI so that doctors and lawyers better understand how a TBI causes a wide range of health changes. This information is critical because TBIs are complex, have wide ranging effects on multiple systems of the body, and the short and long term consequences are not always obvious. This information is helpful for lawyers and doctors, so that they understand why a client may be exhibiting the symptoms they are after experiencing a TBI.
4. Neuroradiology: 80 percent of people with a TBI have negative CT and MRI findings. Dr. Mark Herbst is one of the nation’s leading forensic neuroradiologists specializing in post-traumatic brain imaging. In this CLE, Dr. Herbst will discuss special types of imaging within high-resolution MRI machines, as well as other types of brain imaging beyond CT and MRI that can provide better insights for lawyers and doctors who handle traumatic brain injury cases. This is valuable because many lawyers don’t know about the more advanced imaging options available for clients with a TBI.
5. Putting it all together: At the end of the day, we will discuss how lawyers who handle traumatic brain injury cases can best use the information these three doctors will have provided.
I hope to see you there. Despite my history as a doctor, and many years of practicing as a traumatic brain injury lawyer, there is still an incredible amount of information that I can learn from these three speakers, each of whom is considered a leader in their area of practice.
Dr. Aaron DeShaw, Esq.
Founder of Trial Guides
Our traumatic brain injury live seminar has passed, but we do have the following recordings available from this event: