testing is the standard to determine cognitive impairments and there is a built-in
mechanism to such testing for malingering and exaggeration of symptoms.
Obviously, to counter the neuropsy-chological testing of the plaintiff, the defendant must retain its own expert. However, it can be even more effective to be
able to argue that the symptoms are related to a different condition. In particular,
a condition which one can recover from
as opposed to a permanent brain injury.
Depression has many of the same
symptoms as post-concussion syndrome
and is a common occurrence following a
concussion. One of the main differences is
that with proper treatment, juries believe
that people can recover from depression,
whereas they are less likely to believe that
a plaintiff can recover from a brain injury
that appears to be permanent because of
symptoms lasting more than a year. This
particular defense works because it is
common for those who have a concussion
to become depressed during the recovery.
The symptoms of a major depressive
• Feeling sad
• Loss of interest or pleasure in usual
• Feeling worthless
• Changes in sleep or appetite
• Difficulty concentrating
• Lack of energy
• Slowed speech
While the symptoms are not exactly the
same, there is significant overlap, partic-
ularly the difficulty in concentrating, the
altered speech and the lack of energy. In a
study published in the Journal of Clinical
Neuropsychology in 2005, nine out of 10
patients with depression met the liberal
criteria for post-concussion syndrome
even though they did not have a concus-
sion. Using a conservative standard for
post-concussion syndrome, five out of 10
patients in the sample still met that criteria.
As such, a good defense counsel can
effectively argue for a misdiagnosis of a
permanent brain injury when the plaintiff merely has a treatable depression. In
a young plaintiff, this can significantly
reduce the future damages. The key is
to convince the jury that the continued
medical issues of the plaintiff are treatable and not permanent. A diagnosis of
depression can help diminish the value of
David A. Glazer, Esq. is a partner in the
firm of Shafer Glazer, LLP. The firm’s
practice is focused on insurance and
corporate liability defense. Shafer Glazer
is the Your House Counsel Member Firm
in downstate New York, New Jersey, and
Connecticut. To contact the author or for
more information, visit www. ShaferGlazer.
com or www.YourHouseCounsel.com.
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