Manhattan head injury attorney

Published in: The New York State Lawyers Institute, Bill of Particulars, Fall 2005 Edition
Written By: Kenneth B. Goldblatt
Title: Understanding & Litigating the Mild Traumatic Brain Injury Case

UNDERSTANDING & LITIGATING THE MILD TRAUMATIC BRAIN INJURY CASE

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It is estimated that over 1.5 million people sustain a traumatic brain injury (TBI) every year. Of this group, between 75% and 80% sustain what is referred to as Mild TBI, or more commonly referred to as “concussion”. However, it is important to note that the term “mild” is factually a mosnomer because the consequences of so-called mild TBI can be devastating. Common symptoms often include chronic headaches, nausea, fatigue, lack of motivation, difficulty with concentration and memory, sensitivity to light and noise, diminished appetite, and emotional ability While the overwhelming majority of people recover within 3-6 months, about 10% suffer persistent symptoms that may become permanent. These are the people that become our clients.

In the most common scenario, because there is no “blunt trauma” to the head, no documented loss of consciousness, no positive neuro-imaging and a normal “neurological exam”, the injury is often undiagnosed by emergency room personnel. Additionally, since the symptoms are often “invisible” and the injury is one that society, in general, is not familiar with, you are faced with the task of first convincing a jury that your client did, in fact, sustain an injury. Typically, the defense will accuse your client of “faking” or “malingering” or suffering from some psychiatric illness. As such, when handling a TBI case, it is so important to understand the nature of the injury and properly prepare the case for a jury. What follows below is a brief discussion on recognizing a potential MTBI case, suggestions on preparing the case and some common obstacles often encountered in litigating them.

DIAGNOSTIC CRITERIA OF MTBI

Before one can successfully litigate a MTBI case, it is essential to understand the nature of the injury and the medically accepted diagnostic criteria thereof. The American Academy of Neurology¹ has identified the following diagnostic criteria for MTBI:

1. Transient confusion;
2. No loss of consciousness;
3. Concussion symptoms or mental status abnormalities on examination that resolve in less than 15 minutes.

Similarly, The American Congress of Rehabilitative Medicine² published the following criteria for a diagnosis of MTBI:

1. Any period of loss of consciousness not exceeding 30 minutes;
2. Any loss of memory for events immediately before or after an accident not exceeding 24 hours; and
3. any alteration in mental status at the time of the accident including feeling
   dazed, disoriented or confused

Finally, in its report to the United States Congress³, the Center for Disease Control listed the following criteria for a diagnosis of MTBI:

1. Any period of observed or self reported transient confusion, disorientation, or impaired consciousness;
2. Any period of observed or self reported dysfunction of memory (amnesia) around time of injury;
3. Any observed or self reported loss of consciousness lasting 30 minutes or less.

The common theme running throughout is that it is not essential to suffer loss of consciousness let alone blunt trauma to the head⁴. Similarly, it is rare that any neuro-imaging (Cat Scan and MRI) will be positive. Just as importantly, observable symptoms usually resolve quickly, probably before the arrival of police and/or EMS personnel which likely explains why most concussions are not initially diagnosed by emergency and/or hospital personnel. Despite the initial non-diagnosis, it is likely however, that over the ensuing 72 hours, your client will begin to experience many symptoms associated with brain injury.

THE CLIENT INTAKE

Like any client intake, with a MTBI case, it is extremely important to obtain a thorough understanding of the dynamics of the accident as well as a description of injuries and symptoms. When your client describes suffering symptoms discussed above, you should become alerted to the possibility that your client may have sustained a TBI. At this point, it is essential to obtain additional information, especially with a vehicular accident where it may be necessary to perform a biomechanical analysis⁵. In these instances, it is essential to know the height and weight of the client, their exact body position within the vehicle as well as the position of the seat they are occupying, whether they were wearing a seatbelt at impact and the speed of their vehicle at impact,⁶. When possible, retention of the vehicle is helpful so as to allow identification of points of impact⁷. At the very least, photographs of the damage should be obtained.

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¹ Neurology, 1997, 48:581-585 “Practice Parameter: Report of the Quality Standard Subcommittee”.

² Journal of Head Trauma Rehabilitation 1993; 8(3):86-87, “Definition of Mild Traumatic Brain Injury” developed by the Mild Traumatic Brain Injury Committee Of The Head Injury Interdisciplinary Special Interest Group Of The American Congress Of Rehabilitative Medicine.

³ Center For Disease Control Report To Congress On Mild Traumatic Brain Injury In The United States, September 2003.

⁴ It is commonly held that concussions often are the result of a rapid acceleration/deceleration of the head, the same mechanism of injury as cervical connective tissue injuries.

⁵ When discussing the mechanism of injury of MTBI, the essential discussion must center around the field of impact biomechanics. This is a complicated subject matter and requires an in depth discussion beyond the scope of this article.

⁶ Assuming there is more than one vehicle involved, during depositions, the speed at impact of the other vehicle can be ascertained. However, in a biomechanical analysis, the relevant factor is not the speed of the vehicles, but rather, the change in velocity of your client's vehicle as a result of the impact.

⁷ A biomechanical engineer cannot base opinions on whether the accident dynamics were sufficient to cause an injury based upon the extent of vehicle body damage. What is relevant is the point and angles of impact.