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Do Lawyers Underestimate the Impact of a “Mild” TBI?

Categories: Being a Caregiver, Legal Issues, Living with Brain Injury

by Thomas A. Crosley
Crosley Law

Years ago, I represented a client who had suffered a violent, head-on collision. While the insurance company was willing to cover his physical injuries, it rejected the man’s TBI claim, arguing that his brain trauma was mild at best. However, my client and his family reported profound mood swings, personality changes, memory deficits, and other symptoms that were anything but mild.

I’m sure some lawyers would have glossed over this crash victim’s TBI, believing that his diagnostic studies killed his claim since they were “within normal limits.” We took a different approach, consulting with world-renowned experts and scheduling cutting-edge brain scans that explained the client’s severe emotional and cognitive symptoms. In the end, a jury awarded our client over $16 million for his family’s losses.

This story highlights the complexity of mild traumatic brain injury claims — and why victims need to work with an injury lawyer who truly understands the nuances and technical details of a TBI claim.

What Is a Mild TBI?

  • Mild: If you lose consciousness, it’s for less than 30 minutes. Your brain studies are “within normal limits.” 
  • Moderate: You’re unconscious for up to 24 hours, and your brain scans show signs of trauma.  
  • Severe: You’re unconscious for more than 24 hours, and your imaging studies (like CT scans) show obvious damage. 

Notably, this ranking system focuses on the victim’s reported symptoms at the time of the trauma and the objective findings of their MRI and CT scans. It does not acknowledge the ways that a so-called “mild” TBI can impact day-to-day functioning. 

While studies show that most mild TBI survivors eventually return to their pre-injury lifestyle, recovery isn’t always easy. And some people face a lifetime of challenges due to subtle brain damage and post-concussion syndrome. Mild TBIs are associated with memory and concentration problems, mood swings, chronic headache, fatigue, and other issues. 

Addressing the Challenges of a “Mild” Brain Injury Claim

Every brain injury claim poses unique challenges. When someone suffers a moderate or severe TBI, it is important to carefully calculate their long-term care needs, which may include ongoing medical care, in-home nursing services, or time in a long-term care facility. With mild brain injuries, lawyers often need to carefully investigate their clients’ injuries, combat the insurance company’s attempts to minimize the losses, and stay up to date on rapidly evolving medical research. Let’s explore some of these challenges in more detail:

Not All Imaging Studies Are Created Equal

Many people assume that all MRI and CT scans provide the same level of detail and insight. However, many factors can impact the accuracy of an imaging study, including:

  • The machine’s age and technical specifications
  • The skill of the professionals who take and interpret the studies
  • Whether the radiologist has a detailed understanding of the patient’s symptoms and the purpose of the MRI or CT scan

For example, immediately after a traumatic incident, most radiologists are looking for severe findings like internal bleeding. However, while looking for acute trauma, radiologists may miss subtle axonal damage. It’s not uncommon for an ER doctor to interpret a CT scan of the brain as “within normal limits” if they don’t see damage that requires emergency medical care.

Sometimes, TBI lawyers must consult with other doctors who can re-read imaging studies or order tests that offer more detail and insight. Other times, it’s best to perform new studies on more advanced machines.

Insurance Companies Minimize Subjective Symptoms

Many TBI symptoms, like poor concentration, headaches, and blurred vision, are primarily subjective and cannot be fully explained by a CT scan. While there are neuropsychological and other tests that can help us understand these complaints, it often comes down to the victim’s credibility and consistency to support their claims.

Insurance companies are for-profit businesses, and if they can deny a claim, they will. Adjusters, the people who make claims decisions for insurance companies, often try to damage a TBI survivor’s credibility by implying that the victim is exaggerating their problems and is primarily interested in financial gain. These tactics are hurtful, but victims and their attorneys can fight back.

An experienced TBI lawyer can help judges and juries understand the science behind brain trauma and a victim’s unique symptoms. It’s not always a simple process; proving the claim may require expert witnesses, intense research, and sophisticated trial presentations. But with diligent work and expertise, an attorney can link your reported symptoms to your mild TBI.

Pre-Existing Conditions, Like Occasional Migraines and Depression, Can Complicate Your Claim

Studies suggest that some people, especially those with a history of pre-existing head trauma, migraines, anxiety disorders, and learning disabilities, are more prone to post-concussion syndrome and other TBI complications. Insurance companies will sometimes use your complicated medical history against you, arguing that your symptoms are due to your pre-existing conditions and not the crash or traumatic event.

For example, one of my clients was diagnosed with autism. This client suffered a significant brain injury during a car-pedestrian accident. While the client’s injuries were undeniable, the insurance companies argued that many of his TBI symptoms were due to his autism, not brain trauma. We aggressively fought back, linking our client’s symptoms to the crash and demonstrating how his brain injury had impacted his life.

5 Questions You Should Ask a Traumatic Brain Injury Lawyer

Before you hire an injury lawyer, it’s a good idea to carefully assess their credentials and TBI experience. When you’re meeting with a lawyer, we suggest asking the following questions: 

  • How frequently do you handle TBI claims?
  • Have you ever taken a traumatic brain injury claim to trial? What was the result? 
  • How often do you consult with neurologists, neuropsychologists, and other TBI experts?
  • When was the last time you got TBI-specific training or continuing education? 
  • Are you one of the Brain Injury Association of America’s Preferred Attorneys?

If the lawyer cannot readily answer these questions to your satisfaction, you should continue your search for a qualified TBI lawyer. You should also be very clear about your specific needs. For example, if you have a hard time processing or remembering information, don’t be shy about asking for written communications or materials that can help you understand what’s going on with your case. An experienced TBI lawyer should realize that you need a different level of support and patience during your claim. 

How COVID-19 is Impacting mTBI Victims and How to Respond

There is increasing evidence that COVID-19 can negatively impact brain health and cause neurological disease. However, more practically for TBI survivors, the coronavirus pandemic is affecting access to care. Suddenly, it may be much more difficult to schedule your rehabilitation appointments.

Telehealth appointments can be an effective way to treat your mild traumatic brain injury during a shutdown or local spike in COVID-19 cases. Studies show that video visits and other telemedicine solutions are effective in delivering care to those with mild TBIs, although people with severe cognitive or intellectual deficits may need more care. If you’re unable to see your doctors and therapists in person, please explore a telehealth appointment.

Get the Help You Deserve and Consult with an Experienced TBI Lawyer

If you or someone you love suffered a TBI, whether mild, moderate, or severe, I would encourage you to consult a well-qualified brain injury attorney. The Brain Injury Association of America’s Preferred Attorney list is a good place to start, since these individuals have a proven track record of handling complex brain injury claims.

A lawyer can help you understand your claims, provide you with the information and emotional support you deserve, and fight on your behalf. Most, if not all, injury lawyers offer free consultations and contingency fee structures, so you won’t have to pay for their services unless they win at trial or negotiate a settlement.

Other Resources

In addition to consulting with a BIAA Preferred Attorney, TBI survivors can also use these resources to learn more about brain injuries.

References

Cutting-edge tactics result in $16M jury award: Jerry M’s story. (2020). Crosley Law.

Ellul, M., Benjamin, L., Singh, B., Lant, S., Michael, B., & Easton, A. (2020, July 2). Neurological associations of COVID-19. The Lancet.

Scopaz, K. A., & Hatzenbuehler, J. R. (2013). Risk modifiers for concussion and prolonged recovery. Sports Health, 5(6), 537–541.

Severity of TBI. (2010). Northeastern University. 

Turkstra, L. S., Quinn-Padron, M., Johnson, J. E., Workinger, M. S., & Antoniotti, N. (2012). In-person versus telehealth assessment of discourse ability in adults with traumatic brain injury. Journal of Head Trauma Rehabilitation, 27 (6), 424–432.

The content provided here is for informational purposes only and should not be construed as legal advice on any subject