Proving a Brain Injury Occurred
Most traumatic brain injuries are "mild," meaning they cause only a "mild" disturbance of consciousness when the injury is inflicted, which is manifested more by dazing, confusion or disorientation than by outright loss of consciousness. Neurologists, physiatrists and neuropsychologists who treat patients with so called "mild" brain injuries know that these people experience long term or even permanent ill effects, including insomnia, fatigue, dizziness, imbalance, irritability and decreases in the ability to concentrate, to remember new information, to organize complex information, to make decisions and alter decisions in a quick, adaptive manner to the rapidily changing circumstances at work or home. Yet, these "mild brain injuries" are frequently dismissed by primary care physicians, insurance adjusters and defense lawyers. Why? Because the people who have them are not in wheelchairs, because they look normal, dress normal, walk normal and talk normal, even if they can't remember what they did 5 minutes earlier. Still worse, their brain injuries do not show up on static neuroimaging such as CT and MRI. To make the invisible injury visible requires an experienced eye and a certain amount of ingenuity.
Objectifying the "mild" brain injury, making it visible and proving it exists is the job of the neurolawyer. This job is comparatively easy when the injury involves blunt head trauma, coma and a positive CT scan which discloses a large intracranial hematoma. This job is much more challenging and difficult in cases of mild brain injury where the CT scans and MRIs come out completely negative and the client has sustained a transient alteration of consciousness at the accident scene but is coherent, oriented and alert when he gets to the emergency room. For this reason, neurolawyers utilize neuropsychological testing , SPECT scans and PET scans to bring out subtle abnormalities in brain function that are more characteristic of TBI than of pre-existing psychological problems, pre-existing learning disability, litigation stress or malingering. Neurolawyers also use non-medical evidence to contrast their client's quality of pre and post functioning, including records of school and job performance and testimony from family, friends, work colleagues, co-participants in sports and the client's priest, pastor, minister or rabbi. In certain cases, sleep studies may even be used, to capture involuntary, night-time awakenings which the client does not remember, but which may be responsible for the tremendous fatigue he feels upon waking each day.
Some of the research which confirms organic brain damage from "minor" head injury without loss of consciousness is fascinating, but unlikely to be useful in Court, either because the research is too new and needs validation by other scientists or because it is so technical and so complex that jurors cannot relate to it. An ongoing research project at the UCLA Dept. of Radiology (reported in the May 2000 Journal of Neurotrauma) shows that victims of "mild" tbi have the very same abnormality of glucose metabolism (i.e. significant under-utilization of glucose) as patients in coma from severe tbi for a period of 6 months. MRI spectroscopy (which involves magnetizing protons in the solid parts of brain cells and then zapping them with a beam of electrons) has been used to show sub-cellular break down products associated with damged neuronal cell walls within days after "mild" tbi. Radioactive tracers have even been used to show how "mild" tbi caused mechanical damage to RNA in brain cells, which leads to cell death because the RNA can no longer instruct the DNA in the cell nucleus to make the proteins necessary for cell maintenance, such as rebuilding cell walls.
No matter how the neurolawyer proves his client's brain was injured by the trauma set in motion by the defendant's negligence, this is but part of his burden of proof. Proving how, and to what extent, the injury has adversely effected the client; whether the injury is temporary or permanent; what, if any, residual difficulties the client is likely to have 5, 10 or 15 years down the line and what type and amount of care are reasonably required to restore the client to pre-accident function are equally important. This is where experts come in from fields such as vocational economics, neurology, neuropsychiatry, neuropsychology, physiatry and tbi rehabilitation.