NFL Concussions: Impact on Traumatic Brain Injury Litigation

Written by Zach Mayer and Aaron Speer

With the recent high profile NFL concussion litigation, traumatic brain injury ("TBI") cases have received a great deal of notoriety from the press and the public.  Where this injury used to be spoken of by doctors and trainers, TBI cases have become a common topic of fans and spectators.  It has also become the focus of several civil lawsuits and has resulted in a growing trend of increased jury verdicts.

Over the last fifteen years in Texas, over 165 verdicts or settlements involving TBI have been reported. Of those, 68 resulted in zero damages. However, over 40 verdicts ranged from $500,000 up to $5,000,000 and 19 resulted in recoveries over $5,000,000. During the last few years, verdicts in excess of $30,000,000 for a single TBI have occurred!

Early Assessment is Key

Considering the growing trend and potential exposure for these injuries, it is important to develop an early strategy for defending a case involving TBI. A thorough medical assessment of the plaintiff should be conducted early in the case to explore the symptoms of TBI.  It is critical to uncover as much medical history about the injury and the plaintiff as possible. Prior medical records related to a claimant's history could be vital in establishing a base line for assessing any new injuries.  These prior records should be closely compared to the post-injury records to determine any variations in the medical findings.

It is also important to identify any pre-existing head injuries, possibly sustained in a previous automobile accident, sports injury, and/or illness linked to cognitive dysfunction. If a pre-existing injury exists, it is important to understand that some brain injuries are cumulative.  A past brain injury may explain the current symptoms, and it is virtually impossible to determine which injury caused which symptom. Other significant conditions to be explored include prior drug and alcohol addictions as well as mental illness.  Finally, information obtained from social media is always very insightful as to a person’s purported mental and/or physical state.

Assemble a Defense Team

Careful consideration must be given to the defense team and retention of experts.  The following medical experts are often essential to the effective defense of TBI cases:

• Neurologist or neurosurgeon - diagnose injury, and the nature of the injury.
• Radiologist or neuroradiologist - evaluate films, critical to revealing pre-existing problems.
• Neuropsychologist - determine if the injury caused cognitive impairment or impaired memory.
• Psychologist or psychiatrist – evaluate the claimant's mental or emotional state.

Counsel should be engaged early in order to ensure all equipment, such as the incident vehicle or machinery, is properly preserved. Examining where the injury occurred and interviewing witnesses are important in evaluating the potential for a TBI.  This evidence is crucial in determining the forces involved in allegedly causing the potential head injury.  Often eyewitnesses can describe the claimant's mental and physical state immediately after the event. Key information is often contained in the EMS and/or police reports, such as the Glascow Coma Scale (GCS) determined by an EMT or ER provider. Some experts will even opine that claimants can sustain a TBI from a sudden "acceleration/deceleration" event without evening striking their head. Consequently, an accident reconstructionist, biomechanical or biomedical expert may be necessary to analyze the amount of force potentially imparted to the skull.

Symptoms and Complaints

There are a myriad of possible physical and/or emotional symptoms that are attributable to a TBI, such as:

• Common symptoms of mild TBI:

o   Loss of consciousness for a few seconds or minutes, being dazed, confused or disoriented;

o   Memory, concentration problems or sensitivity to light or sound;

o   Headaches, dizziness, or loss of balance;

o   Nausea, vomiting, blurred vision, ringing in the ears or dry mouth.

o   Mood changes or swings, feeling depressed or anxious; and

o   Difficulty sleeping, fatigue, drowsiness or sleeping more than usual.

• Common symptoms of a moderate to severe TBI:

o   All of the symptoms for a mild TBI;

o   Loss of consciousness for several minutes or hours;

o   Profound confusion, agitation, combativeness or other unusual behavior;

o   Slurred speech, weakness or numbness in fingers and toes;

o   Loss of coordination;

o   Persistent headache or headache that worsens; and

o   Repeated vomiting or nausea; convulsions or seizures.

Determining a Baseline – What was normal?

The difficult task is establishing the individual’s baseline cognitive functioning prior to the diagnosis of TBI.  Understandably, most healthcare professionals are focused more on the symptoms presented by the patient and do not look thoroughly into the actual accident, injury or background of the patient when making a diagnosis. Many treating doctors will merely rely upon the reported medical history and fail to review prior records records from other providers, which may identify many of the aforementioned issues. Therefore, it is often possible that a provider may render medical opinions based upon either incomplete or inaccurate information provided by the patient, making it particularly important that counsel obtain these records for review.

Plaintiff's Goals in TBI litigation

At trial, a jury will often require proof of a tangible injury that can be objectively proven. Historically, plaintiffs have relied upon testing, such as CT scans, MRI, and electroencephalograms (EEG). However, these scans often cannot detect all objective signs of trauma. More recently, Plaintiffs' have begun to rely on MRIs using software known as "Diffusion Tensor Imaging" (DTI) sensitive to damages in the white matter tracts of the brain. White matter is the interior of the brain that connects different parts or lobes of the brains gray matter. DTI tracks the movement of water molecules within white matter fibers. Experts may opine when the white matter is injured, communication is diminished and impairment results. Some experts rely on another version of the MRI using "susceptibility weighted imaging" (SWI). This technology allows radiologists to see very tiny bleeds in the brain known as micro hemorrhages, often arising when the brain is shaken. Susceptibility weighted imaging can visualize iron molecules left over from tiny brain bleeds. After a high speed collision and trauma, there could be hundreds of tiny micro hemorrhages.

There are other experimental technologies not in widespread use. It is important to explore the test and/or technology used to diagnose the TBI, as it is key evidence the jury will consider. In doing so, a defendant should question the reliability of the test, how it was performed, if it has been subjected to peer review and, most importantly, if it can determine causation. It is critical for a claimant to relate their injury back to the alleged incident, especially after the passage of time. There are a number of factors that can contribute to brain changes over time, including age.

After establishing "objective" evidence of a TBI, counsel will likely attempt to corroborate that finding through neuropsychological testing.  Neuropsychologists have numerous tests upon which they can rely to support a subjective interpretation of the findings. It is important to remember that while testing may identify the deficit and explain a particular symptom, it does not establish the cause of the symptom or deficit. Additionally, neuropsychological tests are frequently unreliable and can be influenced by a variety of factors. For example, medications, depression, or psychological disorders can interfere with results. Additionally, there can be intentional manipulation, due to symptom magnification, lack of effort or malingering.

In order to properly evaluate the test results, the raw data from the testing must be obtained. Although the tests are arguably objective, the interpretation of the data can be subjective. Due to HIPPA restrictions, this data should only be released directly to a retained clinician retained by counsel.

Conclusion

Although the NFL has recently resolved numerous TBI claims, this "invisible injury" will continue to be the focus of ongoing litigation. Unfortunately, there are no definitive tests or examinations that diagnose a TBI, its severity or prognosis. In fact, the medical community is still not entirely certain as to the long-term effects for a mild or moderate TBI. Moreover, widespread malingering and over-diagnosis contrasted with a potentially sympathetic claimant complicate the matter. For these reasons, a TBI case can be very difficult and costly to defend. An aggressive defense strategy and thorough preparation is essential.

Personal Injury Defense, aspeer, zmayer