Cases involving traumatic brain injury are some of the most difficult car accident, Social Security Disability, and workers compensation cases to win.
This is especially true for victims of mild traumatic brain injury (mTBI), more commonly known as a concussion. And if you are reading this then there is a high probability you were diagnosed with a mild TBI. The majority of all brain injuries are classified as mild.
Having represented hundreds of brain injury victims across the state, I know that one of the most common defenses to TBI and concussion claims is that there is no visual or objective evidence of injury. Insurance carriers, defense attorneys, and defense medical experts use this lack of objective evidence to portray TBI victims as malingerers, whom are faking and exaggerating their symptoms to get more money.
The purpose of this article is to discuss how to overcome this defense and to get fair compensation for your brain injury when you did not suffer a visible injury to your head, the diagnostic imaging does not show an injury, and you may look fine to others, but your cognitive and social skills have declined.
I hope you find this article helpful. If you have any questions or comments, call me: (804) 251-1620 or (757) 810-5614. As a personal injury lawyer and workers comp attorney, I represent brain injury victims and their families throughout Virginia.
There is a phrase that many people say: “Seeing is believing.” It means that you need to see something before you accept that it is real or that it happened.
That belief, held by some insurance claims adjusters, defense attorneys, judges, and members of the jury, is what mild traumatic brain injury victims must overcome.
In other types of cases it is easy to see the injury with the naked eye. For example, you can see scarring from a burn injury or from surgery to fix a fracture. You can also see the effects of an amputation injury that causes someone to lose a body part.
Many of you whom are suffering from a mild brain injury cannot rely on visual evidence the way other types of personal injury victims can. That is because a seemingly minor accident that does not cause you to strike your head or to lose consciousness can still result in a traumatic brain injury and post-concussion syndrome with devastating lifelong consequences.
For example, you may slip on ice and hit your head. Or sustain a whiplash injury in a rear-end motor vehicle accident that results in a concussion even though your head did not strike your seat, the dash, or the windshield. These are very real accidents that result in very real problems, but they do not have the same emotional and persuasive impact on insurance companies and juries that more visible injuries do.
You may be thinking: “What about diagnostic imaging tests? Can’t they show that I suffered a brain injury?”
For those of you whom suffered a concussion, the answer, unfortunately, is rarely.
Diagnostic imaging tests can show orthopedic injuries that are not visible to the naked eye. For example, diagnostic imaging tests are used to show a stress fracture, a herniated disc resulting in spinal stenosis, a torn ACL, the aggravation of degenerative disc disease, or a torn rotator cuff that is not visible with just a glance.
Similarly, medical providers use a variety of diagnostic tests to assess brain injury. These include:
Because of how effective conventional diagnostic testing is in detecting other types of personal injuries and medical conditions, there is a common belief that if a person has suffered a traumatic brain injury, then today’s diagnostic tests will detect that brain injury. Otherwise, there is no brain injury.
But this belief, held not only by many in the general public but also some practicing physicians, is wrong.
Many people with head trauma will have normal results from conventional diagnostic tests like X-Rays, CT scans, MRIs, and EEGs. They may even have normal results with newer, but less common diagnostic imaging techniques.
As stated by Dr. M.P. Alexander in his article Mild Traumatic Brain Injury: Pathophysiology, Natural History and Clinical Management, 45 Neurology 1253, 1253 (1995): “By common clinical agreement, neuroimaging studies are negative” for many mild traumatic brain injury patients. This view is supported by other experts in traumatic brain injury and treatment, whom have stated that many patients with a history of brain injury will have evidence of functional impairment even though their MRIs and CT scans may not show abnormalities.
Recent studies have concluded that CT scans and MRIs cannot rule out mild traumatic brain injury because they often lack the sensitivity to identify damage to the brain. Some of these researchers and other medical experts have gone one step further and indicated that diagnostic imaging tests for brain injury patients are only indicated when there is loss of consciousness, a penetrating injury, an abnormal Glasgow Coma Scale (GCS) score, or a suspected skull fracture.
Fortunately medical researchers are developing more sensitive tests to fight this problem. But in the meantime TBI victims and their lawyers must push back against the myth that a negative MRI or CT scan means no brain injury.
When you appear fine physically and cannot show an insurance adjuster, defense attorney, or juror a photograph or diagnostic image to prove you suffered a mild traumatic brain injury, you must rely on other evidence to show that you are struggling post-accident. This is necessary to overcome years insurance company propaganda meant to convince Americans that many plaintiffs are greedy people bringing false or exaggerated claims.
Often this requires strong opening and closing statements at trial, and a team of witnesses whose testimony and reports “objectify” your brain injury as best as possible.
When preparing your mild TBI case, you should focus on the following to increase the settlement offer or to get a favorable verdict when the objective imaging is not helpful:
Read my article on medical providers involved in traumatic brain injury cases for more information on how to select the right experts to teach the jury about the seriousness of your TBI and how it affects you.
Your attorney may even use a day in the life video during mediation or trial to show your struggle more effectively than your trial testimony may do.
Many people are unable to recognize when a friend, family member, or acquaintance is struggling with a traumatic brain injury. So it is no surprise that insurance adjusters and jurors are sometimes hesitant to pay or to award a fair amount for your traumatic brain injury caused by someone else’s negligence or a work accident when they cannot see direct evidence of the injury itself.
But with the help of an experienced brain injury attorney, a team of expert witnesses, and before and after witnesses who know you best, you can overcome this hesitation and win your claim. Even when the MRI and CT scan are normal.
Call now for help: (804) 251-1620 or (757) 810-5614.