Brain injury cases (traumatic brain injury) are some of the most complex types of personal injury cases. This is because the scientific understanding behind brain injuries is still developing. Unlike a broken bone or a torn tendon, often people that suffer brain injuries have no “objectively” visible injury. It’s only through their own mind do they realize something isn’t right.
Because of that, it’s often difficult to prove brain injury (or traumatic brain injury cases), particularly here in Virginia. While every case is different, of course, over my years of practice, I’ve noticed that insurance companies are looking for various factors in brain injury cases to assess their value.
Here’s a List of Things that I’ve Noticed:
- Significant impact. Like any injury case, an insurance company will be looking to see if you were involved in a serious accident – meaning was there a significant impact. They look for things such as property damage to the cars involved, whether the vehicles were physically moved as a result of the impact, and did you have bruise, scrapes, abrasions, fractures and/or any other injuries that would indicate significant impact. While we on the plaintiff’s side know that even minor impact cases can lead to devastating injury, the insurance company will use the level of impact to analyze the claim.
- Did you suffer loss of consciousness? One common symptom that often accompanies a brain injury is that the victim loses consciousness as a result of their accident. The issue, though, is that insurance companies attempt to define loss of consciousness as an affirmative fact that an injury victim is knows. I find this odd because inherently in losing consciousness, a person often isn’t aware that they “blacked out.” For instance, they tell me, “well the impact happened, and all of the sudden I’m talking to emergency personnel.” To me, that's a loss of consciousness because the person has no recollection of a distinct period. But that same person told doctors that they didn’t lose consciousness. If someone asks you that question, make sure to give it some thought. But to be clear, not all brain injury cases require loss of consciousness. Indeed, many people don’t lose consciousness.
- Where there any “positive” findings on your MRIs (or other imaging tests). One misconception that insurance companies love to exploit is that there's no head injury if there's normal MRI results. I want to be clear, though, you may still have suffered a head injury even if your MRI comes back as normal. One doctor explained it to me perfectly – MRIs (and other current testing for head injuries) are not yet to the level of technology where they can see all injuries to the brain. Indeed, there may be visible injury to your brain at the cellular level, but that’s not enough to show up on an MRI. Of course, if your testing has come back as abnormal, for instance, you have a brain bleed, that’s a strong indicator of a brain injury. But you still may injury one without such a finding. In fact, most head injuries still result in normal MRI findings.
- Where you referred to a neurologist (and what was their findings?) Typically a head injury victim will be seen at the ER, follow up with their primary care doctor, and will ultimately be referred to a neurologist. A neurologist specializes in the brain and as you might expect regularly treats brain injuries. Of course by the time you get to a neurologist, you likely will have been diagnosed with a concussion, TBI, and/or other diagnoses, but your neurologist specializes in brain injury diagnosis and treatment. Should your injury symptoms persist, you will likely see the neurologist multiple times, he or she will likely prescribe you medication, refer you for therapy, order additional imaging testing, and request you obtain neuropsychological testing.
- Did you have neuropsychological testing? For individuals with chronic or permanent brain injury, this type of testing will be invaluable in establishing your claim. Neuropsychological testing is essentially when a doctor runs you through a battery of cognitive tests to determine whether your brain is functioning at the level it should, and it also includes testing that can evaluate whether the test taker is actually trying to manufacture false results. Typically this type of testing is ordered several months into a victim’s head injury recovery. And if the victim’s head injury symptoms persist, there’s additional testing a year or so after the initial test. That way the doctors can evaluate whether there’s improvement or not.
- Did you have any pre-accident medical conditions that the insurance company can claim are the real reason you’re experiencing cognitive issues? Let’s face it, most of us are not Olympic athletes. We suffer from natural human conditions such as being overweight, having high blood pressure, sleep issues, headaches and migraines, memory issues, etc. Just be aware that the insurance companies will scour your medical records and history to see if they can find any such condition to point to as the reason for your brain injury symptoms. If you have any such pre-existing issues, though, rather than running from them, you’ll want to be upfront and honest because you don’t want the insurance companies to try to paint you as hiding something. Because these cases really deal with credibility, opening yourself up to credibility attacks by not being straightforward about medical history to your attorney (and when asked in discovery) can be more devastating to your case than any medical record.
While I see these points as important to any head injury case, there are also facts that I find important even if an insurance company doesn’t.
- Family and Friends who can attest to the change in your cognitive abilities and personality. Because head injuries in most cases aren’t visibility obvious (like a broken bone), juries will have a more difficult time relating to your claim. However, to assist them, it really helps to have people close to you who know you, and can see the change in you daily. People who can tell your story. While insurance companies may scuff at friends and family saying, “he’s just not the same,” I believe this aspect of your case can be the most compelling.
- Bosses and co-workers who can establish your inability to perform like you could before the accident. By being unable to perform your work duties, this provides juries an objective watermark that demonstrates your change due to your accident injuries. Just like a person who fractured their leg can no longer walk without a walker, your inability to serve as a project manager, for example, will provide the jury that tangible effect caused by your injury. To establish this though, there have to be people who worked with you closely who can clearly testify to what you can and can’t do, and they have to be credible. Obviously, this means that you can still work (even at reduced performation), you should do so as long as your doctors are OK with it.
- Demonstrated effort to be like you were before the accident. This is a point that many see as counter-intuitive. Some people I’ve spoken to in the past are concerned that their efforts to try to get the treatment they need, try to get back to work, or take other efforts to get better will hurt their case because they may perceive as being better. While I get this logic, in my view, I’d much rather being in the position of arguing to a jury that “this person has made every effort to get back to 100% as they can, but still are a fraction of what they were,” rather than a defense attorney arguing that there’s evidence of “the plaintiff is clearly faking it by not taking the steps they need to get better.”
These list are not meant to be exclusive of every issue in a head injury case. They are also not meant to be “medical” advice. It’s simply observations that I’ve noticed over my time in practice while handling head injury cases.
In reality, head injury cases are very difficult to prove. And it’s unfairly difficult for their victims to be properly compensated for their injuries. In my view, this is because of the still-developing scientific understanding of these injuries and the insurance exploitation of this lack of knowledge. But if you’ve been the victim of a head injury case, I think these are useful things to think about.