As medicine has advanced, it has been harder for plaintiff attorneys to causally link pre-existing conditions to
minor accidents. Disc injuries, menis-cal tears, rotator cuff tears and TMJ are
all areas where plaintiff attorneys have
attempted to create value out of existing
problems. With the advances in MRIs
and more research, it is getting harder for
the plaintiff to prove causation. One area
where plaintiff attorneys are trying to create value is in the brain.
Because of all of the news about concussions in the NFL and other sports,
more people are aware of how dangerous
a brain injury can be. Little leagues now
require volunteer coaches to be trained on
how to spot and treat a concussion to prevent athletes from harming themselves.
The NFL now has a medical professional at all games whose sole job is to
watch the game for potential concussion
victims. A side effect of this increased
awareness is that juries are now better
informed on those dangers and are more
willing to award real money to a plaintiff
who can show a traumatic brain injury.
Determining injury severity
Brain injuries run the gamut from mild to
severe. The level of brain injury is defined by
a score on the Glasgow Coma Scale (GCS).
Mild brain injury is defined as a brain injury with a GCS of 13 to 15. Moderate brain
injury is defined as a brain injury resulting
in a loss of consciousness from 20 minutes
to six hours, and a GCS of nine to 12. Severe
brain injury is defined as a brain injury resulting in a loss of consciousness of greater
than six hours and a GCS of three to eight.
When defending such a claim, it is important to know the differences and where
the plaintiff’s claim falls on this scale. The
Glasgow Coma Scale score can usually be
found in either the ambulance report or
an emergency room report. A concussion
is defined as a mild traumatic brain injury.
If the GCS is in the moderate or severe
range, then there is a legitimate brain
injury and the best way to handle those
claims is to focus on damage control because there will be a strong likelihood of
It is also important to look for a CT
scan or brain MRI. When defending a
brain injury claim, look for any signs of
internal bleeding. The CT scan will note
if there any changes in the midline shift
or collections of fluid.
An MRI can detect injuries to the white
matter of the brain through the use of a
diffusion tensor imaging (DTI) tech-
nique. Smart plaintiffs will likely start
having this type of MRI done in hopes of
finding damage which is harder to see in
a traditional MRI.
Concussions can occur if the brain moves
too rapidly inside the skull. Car accidents,
contact sports, violent encounters or falls
can all cause a concussion. By pointing
out that a concussion is a mild traumatic
brain injury, it lessens the impact.
For 50 percent of people, post-concussion symptoms go away within a few days
to several weeks after the original injury
occurs. In others, symptoms may remain
for three to six months, but evidence indicates that many cases are completely
resolved within six months.
The majority of symptoms are largely
gone in about half of the people with a
concussion one month after the injury,
and about two-thirds of people with minor head trauma are nearly symptom-free
within three months. If symptoms are
not resolved by one year, they are likely
to be permanent, though improvements
may occur after even two or three years,
or may suddenly occur after a long time
without much improvement.
The symptoms of post-concussion syn-
• Temporary loss of consciousness
• Sleep problems
• Lack of energy
• Delayed responsiveness
• Amnesia regarding the injury
• Slurred speech
• Looking dazed
Defending concussion claims
DefenDing milD traumatic brain
For purposes of defending these claims, it
is easy for plaintiffs to argue that they have
suffered a permanent brain injury if they
are not healed within one year, since most
concussions heal within this timeframe.
Frequently, they use neuropsychologi-
cal testing to support this argument. Such
By David A. Glazer, Esq.