by Jennifer Lee
September 2014 Dicta

Everyone knows that a traumatic brain injury is a serious case to defend. The case becomes even more difficult when it is questionable if a traumatic brain injury truly occurred or if someone experienced loss of consciousness and is diagnosed with post-concussive syndrome with continuing symptoms. This is largely difficult because most medical professionals will testify that someone who had loss of consciousness has post-concussive syndrome which by many is termed a brain injury.

In the State of Texas, verdict awards in brain injury cases have ranged between $2,000,000.00 and $20,000.000 and then some in the past few years. In Dallas County, a recent verdict in the amount of over $4,000,000.00 was awarded for what the defense argued was a questionable mild traumatic brain injury, if any at all. Thus, developing the facts surrounding the claimed brain injury is an essential part of valuing and defending your case. This is especially true when many doctors will determine a person has post-concussive syndrome if they suffered any level of loss of consciousness or possibly without loss of consciousness at all. Post-concussive syndrome is considered by many as a brain injury; especially in light of much discussion about concussions in relation to the National Football League. So, what does one look at to develop evidence about an alleged brain injury?

Medical professionals attribute a blow or a jolt to the head as the cause of a brain injury. Loss of consciousness is also important, but not essential. The Glasgow Coma scale is generally used by medical professionals to determine if a person had a concussion and if so, to what degree. The Glasgow Coma scale attributes numbers to different categories which are totaled to determine the level of loss of consciousness and/or brain injury. But, even if a person did not lose consciousness, other issues such as confusion will be viewed to support a classification of post-concussive syndrome or another brain injury description.

CT scans of the head that return normal findings do not mean that a brain injury did not occur. A CT of the head is simply a view of the structure of the head meaning that fractures or structural damage to the brain will be identified but post-concussive syndrome or other complications will not be shown in any fashion on a CT scan. Thus, much of what the medical professional has to go on when determining if a brain injury is occurring, is the subjective complaints of the patient which can be problematic. There are developments in the medical field that are attempting to make diagnosing a brain injury more concrete.

A rare but new technique that has been developed is called Diffusion Tensor Imaging (DTI). Experts related to this type of “scan” relate that a standardized CAT or MRI brain scan may reflect normal findings in concussion patients but DTI picks up tears in the white matter of the brain. This is important because white matter links areas of gray matter of the brain to produce thinking functions such as attention or memory. Thus, if the white matter is damaged by a concussion, the connections get disrupted and attention and memory are affected. This, of course, has not been as widely used as other scans we are used to so the impact of DTI on brain injury cases is not yet widely known.

So, without use of scientific evidence such as a DTI, what supports a diagnosis of post-concussion syndrome? Doctors claim “ice-pick headaches” are one of the most common indicators of post-concussive syndrome. These are described as headaches that come on suddenly with severe pain as if someone is poking an ice-pick through the head. These headaches cannot be treated as they come on suddenly and then likely go away just as fast. There are no studies to support how long these headaches will plague a person. Additionally, persons with post-concussive syndrome generally experience sleeplessness or any other symptom not experienced before the claimed incident. In terms of resolving these symptoms one can take sleep aides and ibuprofen but there is no definitive cure other than time.

From a defense standpoint, the key is to identify from the initial medical records if there is the possibility of a brain injury claim. Detailed review of the accident and medical records to determine if the mechanism of injury supports such a claim is necessary as well. Then, depending on treatment sought, it is important to determine any experts that can be retained to assist with defense of the case. Also, deposition of the Plaintiff and Plaintiff’s main medical care provider is essential. The Plaintiff’s claims as to how the injury occurred and the continued symptoms are necessary to discuss with plaintiff’s medical care provider. Jury verdict research for your venue in regard to similar claims is always helpful in assessing the value of your case as well. This information is a brief overview of experience with brain injury cases but the most important thing to note is that special care must be afforded as every case claiming injury to the brain must be taken seriously.

Jennifer Lee is a partner at Fee, Smith, Sharp & Vitullo and can be reached at