The Skeptical Brain Injury – How Do You Prepare to Defend it?

Mild traumatic brain injury cases often arise from low-speed motor vehicle accidents or slip-and-fall cases where there is no loss of consciousness, no hospitalization and minimal medical treatment. 

In these cases, the alleged brain injury is often used by plaintiff attorneys as a “multiplier” to make their client’s claim more significant. Even a mild traumatic brain injury claim can result in significant verdicts and must be taken seriously by those defending against them.

There is generally no objective evidence of these alleged injuries. Plaintiffs rely on subjective complaints that they are “just not the same.” They may have an alteration of mood or personality, as well as memory loss, headaches, depression, anxiety or cognitive complaints. The testimony of employers, friends or family about how the person was before and after the accident often becomes crucial to “proving” the injury. 

Plaintiff’s attorneys also often retain a neuropsychologist to perform a series of cognitive tests to evaluate the plaintiff’s deficiencies and relate them to the accident. Although MCL 500.3135(2)(ii) requires that a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed head injuries must testify there “may be a serious neurological injury,” this statutory requirement hardly ever precludes a plaintiff from presenting his or her alleged mild brain injury to the jury. 

So how can you prepare for skeptical traumatic brain injury case?

First, developing or preserving what objective evidence is available is crucial to combatting these subjective claims. This may include oral and written statements of first responders, witnesses, or the plaintiff him or herself. Photographs of the scene and evidence of how the plaintiff was looking, feeling and acting immediately or shortly after the traumatic event are invaluable after plaintiff has retained an attorney and had time to think about his or her personal injury lawsuit. 

For the plaintiff that is taken to the emergency room, the ER records are also critical. The testing done in the ER tells us if there was an objective injury as well as how the plaintiff was looking and feeling in the hours after the event. Next, the treatment plaintiff pursues paints an important picture as to the seriousness of his or her symptoms/complaints.  Generally, these plaintiffs will have evolving complaints.

Sometimes a plaintiff pursues one-off evaluations but does not follow up on recommended therapies like speech, physical or occupational. A thorough review of the plaintiff’s medical history is also important, as there is often overlap of subjective complaints. Plaintiffs that complain of depression and anxiety may have a psychiatric history, or complaints of hearing and vision loss may be associated with general aging. 

Evaluating these things in the mild traumatic brain injury case or speculative brain injury case before a lawsuit is filed and making sure you obtain and preserve the objective evidence will be invaluable to the team that will eventually defend this case in litigation and possibly through trial. 

For more information about defending traumatic brain injury cases, you are invited to join Plunkett Cooney for a free webinar on June 5, 2024 from noon to 1 p.m., featuring guest speaker Dr. Christian Schutte.  Dr. Schutte is a neuropsychologist specializing in treatment of the traumatic brain injury.  Panelists will discuss the basic medicine behind evaluating a traumatic brain injury, as well as steps to defend against the speculative and questionable brain injury claim.

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