Traumatic Brain Injury Myths

Lawyers, who try traumatic brain injury case, such as Carol Rosenbloom Associates, LLC, must explain to jurors the impact of an often subtle and unfamiliar injury. They also must challenge defense myths or defenses that sound reasonable yet frequently are based on stereotypes and less than careful reading of the scientific literature. What follows is a list of myths or common defenses in traumatic brain injury cases and suggestions for refuting them.

Traumatic Brain Injury Myths:

• The injured person has a low IQ now, but there is no way of knowing what his or her IQ was before the accident.
• The injured person claims to suffer from both memory problems and depression, yet experts know that depression causes memory problems. So, we cannot conclude that plaintiff is suffering a brain injury.
• Ct, MRI, and EEG tests are negative. Therefore, the injured person has no brain injury.
• The injured person only has psychologists testifying not “real doctors.”
• How serious can the injuries be? The injured person didn’t even lose consciousness.
• The inured person’s family and friends are too subjective to be credible witnesses.
• Head injury is common and the vast majority of people who get a “bump on the head” turn out to be fine.
• Neuropsychological tests are inconsistent and silly.
• The injured person is malingering or engaging in “secondary gain" behavior.

Western Pennsylvania and Pittsburgh, Pennsylvania, law firm of Carol Rosenbloom Associates, LLC represents traumatic brain injury victims and families statewide in personal injury claims. From our many years in this arena of litigation, our lawyers have learned a great deal about traumatic brain injury claims for damages.

The following traumatic brain injury information is not meant as legal advice or as a substitute for legal representation. You should use this information as a guide to ask good questions when you consult with a qualified attorney to discuss the unique facts and circumstances of your traumatic brain injury claim.

The injured person has a low IQ now, but there is no way of knowing what his or her IQ was before the accident.

It is somewhat improbable of a victim knowing he or she was going to be involved in an accident and rushing into a psychologist’s office for an IQ test. However, you will need some means of estimating the plaintiff’s pre-accident intelligence. Perhaps, the most obvious method is to look at the injured person’s prior education and employment. Other good sources may include (1) pre-accident medical records; (2) military and school records, which often contain evidence of testing; (3) comments or reports from family, friends, and coworkers; and (4) the injured person’s claims history. You can determine the injured person’s IQ before the accident.

The injured person claims to suffer from both memory problems and depression, yet experts know that depression causes memory problems. So, we cannot conclude the injure person is suffering from a brain injury.

There is often an overlap of symptoms between one disorder and another. It is true that some symptoms of depression do mirror symptoms of traumatic brain injury memory loss. The best thing an injured person can do is undergo treatment with appropriate medication and establish that there has been no improvement. The, it is easier to show that a traumatic brain injury, not depression, caused the symptoms.

CT, MRI, and EEG tests are negative. Therefore, the injured person has no brain injury.

In brief, a CT (computerized tomograph) is analogous to an X-ray of the brain, an MRI (magnetic resonance imaging) scan provides a three-dimensional image of the brain and other organs, and an EEG (electroencephalogram) provides a paper record of the brains electrical activity. A neurologist should be able to testify both to the ability of CT, MRI, and EEG to detect gross damage and their inability to detect mild, often microscopic injury that can debilitate a person. The neurologist can also explain that given the limitations of these measures, neuropsychological testing is necessary both to pinpoint damage and to describe it in terms of lost functioning. Other specialists such as psychiatrists may be used, but juries seem to view neurologists’ testimony more favorably.

The injured person only has psychologists testifying-not “real doctors.”

The reasoning behind this argument is that only M.D. professionals cut and medicate. Thus, they are the only ones who should diagnose brain injury. To refute this, create a referral chain that begins with the injured person’s own doctor, who refers out to a neurologist, who in turn refers out for neuropsychological testing and therapy. Each professional testifying can say that he or she, not the attorney, was the referral source and can also testify about the qualifications of and need for the next professional in the chain.

How serious can the injuries be? The injured person didn’t even lose consciousness.

The layperson will often expect brain injury to result in a coma-like state, or at least in the injured person at least being “knocked out” for an extended period. Yet, mild traumatic brain injury does not necessarily lead to loss of consciousness, merely a disruption in normal arousal, attention, and functioning, which can mean simply being briefly dazed or disoriented. Since this criterion may run counter to the jury’s expectations, it is important to have each expert confirm it in cases where there is no documented loss of consciousness.

The injured person’s family and friends are too subjective to be credible witnesses.

A typical defense strategy is to show that an injured person is different now from before the accident only in the minds of his or her paid health professionals. Thus, experts alone will not refute this argument-their professional opinions need to go hand in hand in with testimony from family, friends, coworkers, and supervisors.
A final comment on lay witnesses: Use them not only to establish damages but also to prove liability. Your claim is wobbly if the injured person is the sole or most credible witness in establishing who was at fault in the accident. The injured person can hardly claim memory deficits with poor concentration and attention and then claim clear recollection of events surrounding the accident.

Head injury is common and vast majority of people who get a “bump on the head” turn out just fine.

This defense testimony can actually work to the injured person’s advantage. The fact that some kinds of head injuries are so common informs the jury that this is not a rare occurrence, and it also serves to deflate juror’s expectations that the injured person be incoherent, bedridden, or in a wheelchair. Head injury is a continuum, ranging from minor to so severe as to result in death. Each expert should confirm that traumatic brain injury victims can appear physically normal at first blush despite tremendous cognitive deficits.

Neuropsychological tests are inconsistent and silly.

The defense may denigrate neuropsychological testing on the basis that it is not uniform and that different neurophysiologists use different tests. The key to rebuttal here is to have your expert explain what he or she is looking for or attempting to evaluate in using a particular test. Explain what kind of functioning each test measures, how an uninjured person would perform on each test, and how the plaintiff performed and why.

The injured person is malingering or engaging in “secondary gain” behavior.

Malingering is defined as “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives. Secondary gain can be defined as refusing to get well because of the benefits of being considered injured (reduced workload or money from a claim or lawsuit, for example).
Unfortunately for trial lawyers, the DSM-IV recommends therapists “strongly” suspect malingering whenever two or more of the following are present: the patient has presented to the doctor at the lawyer’s suggestion, there is a significant discrepancy between claimed injuries and objective findings, the patient is not cooperating in the diagnosis and treatment, or there are psychopathic tendencies in the patient.
This can pose a problem if the attorney sends the injured person to a doctor and later the injured person doesn’t take his or her medicine as she should because of memory problems. The attorney can avoid this problem by using professionals familiar with the realities of treating traumatic brain injury patients and by anticipating questions about the referral chain of experts and treatment compliance.

At Carol Rosenbloom Associates, LLC, in Pittsburgh, Pennsylvania, our traumatic brain injury lawyers have more than 40 years of combined legal experience, a thorough knowledge of personal injury and wrongful death, and a familiarity with traumatic brain injuries.

Our attorneys will work with medical professionals, investigators, and other experts to develop and prepare the best possible case for trial. You will have direct access to your attorney who will keep you informed and up-to-date regarding the status of your case. We offer free initial consultations. The majority of our services are provided on a contingent fee basis. This means you will pay no attorneys' fees unless we are able to achieve a verdict or settlement on your behalf.

Contact Carol Rosenbloom Associates, LLC in Pittsburgh, Pennsylvania. A traumatic brain injury attorney from our firm will be happy to speak with you and provide an honest evaluation of your case.

Carol Rosenbloom Associates, LLC
Toll Free: 1-800-511-2411
carol@callmylawyer.net