- Richard L. Duquette
Proving Mild Traumatic Brain Injury (MTBI) Part II: Lifestyle Effects©
Proving Mild Traumatic Brain Injury (MTBI)
Part II: Lifestyle Effects©
By Richard L. Duquette, Esq.
When bicyclists are involved in crashes, they can receive a variety of injuries ranging from scrapes and bruises, to broken bones and soft tissue damage, to traumatic brain injuries (TBI). This series of articles discusses the diagnostic tools available for proving a mild traumatic brain injury (MTBI). MTBI can increase the value of a personal injury settlement by $100,000 or more, because of the permanent lifestyle changes it causes.
Part 1 of this series addressed common symptoms and field diagnostic tools and the various imaging techniques available. Part 3 will discuss the evidentiary issues related to proving TBI. The current post (Part 2) discusses ways of proving lifestyle effects of TBI.
LIFESTYLE DIAGNOSTIC TOOLS
The previous post outlined the major imaging techniques used for diagnosing and proving traumatic brain injury. But a major element of the value of a brain injury case involves showing a permanent or long-term lifestyle change. Insurance companies will often point to diagnostic imaging and claim that when an anatomical symptom such as a lesion has healed, or when blood or oxygen volume has returned to the affected area, the patient is therefore now permanently healed. This is not always the case. People suffering from MTBI often have lingering symptoms that impair their sensory, cognitive, and motor functions, as well as their emotions and behaviors.
These symptoms can have devastating lifelong impacts on a person's quality of life, ability to make a living, ability to have relationships, and their subjective experience with the world around them. A person suffering from MTBI is in many senses not the same person they were before their injury. This point does not always come across in even the most advanced neuro-imaging. So we have other methods of proving this.
The imaging techniques above are a part of the picture. They provide an anatomical (i.e. structural) and physiological (i.e. functional) picture of the brain. But they do not in themselves tell the story about how the individual is affected. Enter the field of Neuropsychology. Neuropsychology is an interdisciplinary study that draws on insights concerning the structure and function of the brain (neurology) and uses these to understand how brain injuries and diseases affect the psychological faculties.
The Neuropsychological "Battery"
Clinical Neuropsychologists assess patients on a variety of different functions with a broad array of tests. These tests evaluate the patient's intelligence, memory, language skills, executive function, visuospatial skills, and combinations of these factors. There are dozens if not scores of tests geared toward diagnosing one or more of these functions. Tests that evaluate all or a combination of these factors are known as "batteries," and are considered highly useful for initial diagnosis, in some cases ruling out further testing in one area and calling for further testing in another area.
One of the problems with clinical neuropsychological testing is the absence of a point of comparison—that is, few individuals submit to rigorous neuropsychological testing prior to an injury, meaning there is no objective "before" condition against which to measure the "after" condition. This is in contrast with research neuropsychology, in which subjects already known to have neurological conditions are compared with the average. So, a skilled clinical neuropsychologist must account for this lack of a clear control by gathering as much information as possible about the person before the injury, including their work history, academic history, and observations of those close to them, to build a composite psychological profile of the person before the injury. The findings of research neuropsychologists assist in building this composite "pre-injury" plaintiff by filling in gaps. The problem lies in assuming that an individual was "average" for purposes of these tests. Some patients are below average to begin with. Other patients are above average to begin with.
Patients who had above average intelligence, vocabulary, language skills, executive functions, or visuospatial skills before their injury may still score relatively high on these tests compared to other brain injury patients. Insurers, their attorneys, and defense medical experts will try to exploit this by downplaying the damage. For this reason, both the neuropsychologist and the plaintiff's attorney must be prepared to show the exceptionally high level at which such an injured person functioned before the injury in order to show that for that victim, the loss of function was relatively significant. The strategy here is to show that although this relatively strong and resilient person has adapted to the extent possible to their injuries, they will still never be the same.
Patients with below average functionality before their injury face the opposite problem. If someone has few marketable skills or is not particularly known for their intelligence, the defense strategy will be to say that they had a very low ceiling of potential to begin with, and that therefore their loss is not worth as much. While this sounds particularly cruel, it can be effective when you are talking about economic damages such as lost income. However, a brain injury can be just as devastating for an already low-functioning person as it can for an average or high-functioning person. Not only will it further debilitate them, making them more likely to be dependent, but it will likely cause severe detriment to their subjective experience of life. That is, their sensory/perceptual, emotional, and behavioral faculties will be extremely taxed by simply performing the most basic functions.
In either event, the job of the neuropsychologist, and the plaintiff's attorney, is to draw a clear contrast between the victim's psychological state before and after the injury. This requires a detailed and extensive cataloguing of symptoms over time, by both the patient and those who observe him or her.
Traumatic brain injury cases are some of the most complex civil personal injury cases today, both because of the amount of money at stake, and because of the scientific and medical complexity involved. In trying a brain injury case, you need an attorney who not only has the legal experience to handle high-stakes complex litigation, but also with a broad network of expert witnesses, and the familiarity with the issues necessary to cross-examine the defense experts. If you or a loved one has suffered a traumatic brain injury, don't suffer alone. Contact the Law Office of Richard Duquette, bicycle attorney with experience litigating brain injury cases.