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Posted on: Jun 16, 2020

Neurocognitive deficits caused by a mild traumatic brain injury (TBI) remain one of the most challenging injuries to prove in personal injury litigation.  Often, mild TBIs are not diagnosed by emergency personnel, who are more focused on more obvious injuries.  Careless or unskilled PCPs may miss the diagnosis on follow up, particularly when the patient does not complain of a concurrent physical manifestation such as tinnitus, dizziness, loss of hearing or visual impairment.  In some cases, the injury victim’s lawyer is the first professional to suspect brain damage, which fact is used against the injured party.

In the recent past, there were no objective tests to confirm the presence of a TBI.  Lawyers were left with the vagaries of neuropsychological testing to prove their case.  In the past few years, however, some exciting technologies have been developed that increase the likelihood of making objective proof of injury available for litigation.  In my last update on TBI medicine (OAJ Quarterly, Jan. 2018), I discussed the development of tau radiotracers and FDG-PET imaging, which showed promise.  More recently, researchers using Diffusion Tensor Magnetic Resonance Imaging (DT-MRI) were able to detect areas of brain injury in U.S. military veterans up to a year following injury.  The DT-MRI evaluates water movement within the brain, reflecting brain cells that are not functioning properly.  Diffusion Tensor Imaging can be used to track nerve fibers to measure deficits in white matter.  The resulting “tractography” can map abnormal pathways.  Volumetric testing is also available to detect subtle abnormalities and atrophy.  Both will likely be standard tools in the future, but currently are used only by subspecialists.

Another promising test for mild TBI is a blood test that measures metabolites that are elevated after a concussion.[1]  These blood assays are not yet being used clinically at this time. 

Another area of interest is damages.  TBI affects the whole person, meaning that work, social and familial relationships suffer.  Beyond loss of earning capacity and non-economic losses, such as emotional distress and loss of enjoyment of life, TBI victims are prone to significant long-term medical and life care expenses.  In addition to those cited in my last update, several new studies link TBI to an increased risk of dementia.[2]  The JAMA study included 178,779 VA patients who were diagnosed with TBI.  It showed that there was a more than two-fold increase in the risk of dementia even in patients who did not have a documented loss of consciousness.  Another study showed that one in six adults over the age of 65 years develop dementia after a concussion.[3] 

The repercussions of a TBI-dementia link are huge.  The cost of caring for patients with dementia is significant.  The Alzheimers Association estimates that the lifetime costs of dementia care is $341,840.00.  Capturing this element of damages in litigation will be challenging.  Since the prevailing medical literature does not prove that a TBI victim is “more likely than not” to develop dementia, courts are likely to conclude that such damages are not “reasonably certain,” and therefore, not recoverable.  However, stress and anxiety caused by this potential diagnosis and its costs may be captured as noneconomic losses.

In addition to dementia, TBI is causally related to other devastating complications.  For example, studies have linked an increased rate of suicide to TBI.[4]  None of these studies suggest that the victim of TBI will likely commit suicide.  However, expert testimony may establish a causal connection in the right case when a victim of TBI does commit suicide, thereby forming the basis for a wrongful death lawsuit.

Another study reports that TBI is associated with sexual dysfunction in women.[5]  The incidence of TBI among women is fast-growing.  The authors concluded that “women who have a concussion have a significantly increased risk of sexual dysfunction” compared to women who suffer other types of injuries. 

Finally, a study reported a link between TBI and Parkinson disease.[6]

Mild TBI cases continue to post challenges for the brain injury lawyer.  While a number of advances have come out of increased publicity brought to TBI by athletes and military combatants, a cure remains elusive. 


[1] Fiandaca, et al. (2018), Plasma Metabolomic Biomarkers Accurately Classify Acute Mild Traumatic Brain Injury From Controls.  PLoS ONE 13(4): e0195318.

[2] Barnes, et al. (2018), Association Of Mild Traumatic Brain Injury With And Without Loss Of Consciousness With Dementia In U.S. Military Veterans.  JAMA Neurology, DOI:10.1001/JAMANeurol.2018.0815; Nordstrom, et al. (2018) Traumatic Brain Injury And The Risk Of Dementia Diagnosis: A Nationwide Cohort Study, PLOS Med 15(1): e1002496; Fann, et al., Long-Term Risk Of Dementia Among People With Traumatic Brain Injury In Denmark (2018), DOI: https://doi.org/10.1016/S2215-0366(18)30065-8.

[3] Redelmeier, et al. (2019), Statins And Risk Of Dementia Following Concussion, JAMA Neurology.

[4] Madsen, et al. (2018), Association Between Traumatic Brain Injury And Risk Of Suicide, JAMA, 320(6): 580-588; Iverson (2015), Suicide In Chronic Traumatic Encephalopathy, https://doi.org/10.1176/appi.neuropsych.15070172.

[5] Anto-Ocrah, et al. (2019), Risk Of Female Sexual Dysfunction Following Concussion In Women Of Reproductive Age, brain injury, doi:10.1080/02699052.2019.1644377.

[6] Gardner, et al, mild TBI and risk of Parkinson disease (2018), DOI: https://doi.org/10.1212/WNL.0000000000005522.

Shared by Mishkind Kulwicki Law Co., L.P.A.
www.mishkindlaw.com/blog

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