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If you or your family member has suffered a brain injury due to a car accident, and you're pursuing litigation for compensation, there are typical defenses that they will use to contest your brain injury cases. To be clear, this is not an exhaustive list, but common defenses that we see in litigation of brain injury cases in our practice.

1. They will contest that you are injured at all. In most brain injury cases, there typically will not be positive findings on MRIs or CT scans. That's because when it comes to brain injury, the science is not yet there. Therefore, many people suffer a brain injury at the cellular level, and these scans cannot detect it. Given the gap in science that still exists, insurance companies will take advantage of this fact to argue to the jury that you did not suffer a brain injury. Unlike a broken bone or a torn rotator cuff, where you can see damage on X-rays or MRI scans, a brain injury is more difficult to prove simply because you can't show the jury a picture.

Because of that, you will be required to rely on the science behind brain injury medicine to prove your case. What that means is your medical doctors will be required to justify their diagnosis of you of a brain injury. They will be required to state the criteria upon which they diagnosed you with a brain injury immediately following the accident. They will further be required to testify as to why you showed ongoing signs and symptoms of brain injury, why their diagnosis and treatment were appropriate, and why any symptoms you complain of after the accident aren't due to non-brain injury-related symptoms.

While your brain injury may be self-evident to you, your friends and family, the insurance company will likely bring in expert doctors who will require you to undergo medical examinations and ultimately contest the injury that you claim. This may seem invasive, however, in litigation, the courts will require it so long it's a reasonable request. Typical examination by the defense of you is standard given that the defense has the right to develop a defense in their case. However don't be surprised or discouraged when the defense experts determine that you weren't injured in the accident, because it's very common that they do that regardless of whether or not you suffered an injury.

2. They will claim that any symptoms of brain injury that you are experiencing are due to pre-existing conditions. Therefore, if before the accident, you had any conditions that may in any way have symptoms that overlap with a brain injury they will argue that that's really the cause of your ongoing symptoms. Pre-conditions such as sleep apnea, diabetes, hypothyroidism, and other conditions which often can result in symptoms such as fatigue, memory loss, cognitive issues, are very important. Given that, it's important that you fully disclose and discuss any issues and pre-existing conditions with your brain doctors. The reason is simple: If you don't do it up front and immediately, the insurance company will claim that you are being dishonest. They will also further claim that you were hiding your illness, and that's further evidence that you don't actually have a brain injury.

3. The insurance company will claim that you haven't done enough to get better. When it comes to brain injuries, as you know, you will be interacting with a lot of doctors, and be given a lot of recommendations. Likely because of the nature of your brain injury, which affects your ability to follow through with recommendations, there will be points in time where you're not 100 percent compliant. In my view, this is absolutely natural given the nature of your injuries. However, the insurance company will claim that you were not injured because if you truly were injured you'd do everything to get better. This is yet another attempt by the insurance company to seize upon the lack of understanding within the scientific community as well as the general community about what brain injuries are and what symptoms they produce. Therefore, if you're going through a brain injury recovery, whether or not it's related to a car accident, you should have friends or family help out. That means them helping you scheduling appointments, following up with doctors, following through with therapy, and any other advocacy role they can help out with. I know it's hard given that you're likely an independent person, however, you need to do what you can to not only actually get better, but demonstrate that you're trying to get better. Even if it's unfair ask.

4. They will actually argue that because you were able to make it through the litigation process, you couldn’t be brain injured. Yes. Read that again. Litigation is hard work, it's stressful, and it takes hours. Because of this, the defense will likely argue that because you are able to survive it, that remarkably proves that you're not actually brain injured. Again I tell you this because it demonstrates the ironic nature of brain injury claims and how insurance companies defend them. But it's something to be prepared for and not surprised by.

I write this article not to discourage you, however, I write it, so that you're prepared for pursuing your brain injury case. This is not an extensive nor exclusive list of all the defenses that will likely be used in your case. But it's things to think about and not be surprised by.

Should you have any additional questions about your brain injury case, feel free to reach out to Ben Glass Law at 703-591-9829. We wish you the best of recovery, and we look forward to hearing from you.

Brian Glass
Virginia personal injury lawyer selected to SuperLawyers Rising Stars List and the NTLA's Top 40 Under 40.