Catastrophic Damages in aTraumatic Brain Injury TrialDecember 18, 2012 · CONFIDENTIAL MATERIALS
TABLE OF CONTENTSI.     What is a Traumatic       Brain Injury (TBI)?II.    How do I Identify the       TBI Case?III.   Ho...
What is a Traumatic Brain         Injury?
DEFINITION OF TBITraumatic brain injury (TBI) is a non-degenerative, non-congenital insult to the brain from an external m...
DEFINITION OF PTSDPTSD is an anxiety disorder that comprises five major criteria.First, one must have been exposed to or w...
What Does the Literature Tell Us?The intersection between traumatic brain injury (TBI) and post-traumatic stress disorder ...
Identifying the TBI Case
Cognitive Dissonance versus Cognitive DeficitCognitive dissonance is a psychological factor which disruptsconcentration an...
The Various Classifications of TBIBrain injuries are typically classified as mild, moderate orsevere. These classification...
Mild Traumatic Brain InjuryA "mild" traumatic brain injury is defined as an injury resultingin unconsciousness of less tha...
Moderate and Severe Traumatic Brain InjuryA "moderate" brain injury is one resulting in unconsciousnesslasting from 30 min...
A Neuropsychologist’s Definition of Axonal InjuryQ And I dont think that we have got a definition of a diffuseaxonal injur...
When Can a TBI Be Diagnosed?Q If a patient has incurred a mild traumatic brain injury, when-- or Im sorry, how long would ...
Mild Traumatic Brain Injury—How Is It Diagnosed?Q Are all three of these items, the retrograde amnesia, the lossof conscio...
How Important Are Neuroimaging Findings?Q Is there some type of a diagnostic testing or scan that youcan do to determine i...
What Are Neuropsychological Findings?Neuropsychological testing is utilized to assess cognitivefunction prior to and follo...
What Are Neuropsychological Findings?Despite the super-sophisticated names and seeminglysophisticated nature of neuropsych...
Example of Neuropsychological Testing
Defending the TBI Case
OBTAINING THE RIGHT RECORDSRaw Test DataFirst Responder Records • Look for Glascow Coma Scale Scores and loss of conscious...
Glascow Coma Scale in Medical Records
Glascow Coma Scale in Medical Records
Obtain the Right RecordsRaw Testing Data•One set of records that is an absolute must is the raw datagenerated by the plain...
Example of Raw Test Data
Cognitive Dissonance Can Distort The TestingQ Are there any psychological components that can affect apatients score on th...
Thoroughly Review Medical Records
Obtain the Right RecordsPre-Morbid I.Q. Level
Obtain the Right RecordsPre-Morbid I.Q. LevelQ How do you compare the results to a pre-morbid IQ?A Theres a couple of diff...
Obtain the Right RecordsPre-Morbid I.Q. LevelIf there is no prior I.Q. test then the best method for thedefense lawyer to ...
Obtain the Right RecordsPost-Accident Function LevelCurrent employment records, school records, etc., can be usedto demons...
Obtain the Right RecordsPost-Accident Function Level
HIRING THE RIGHT EXPERTSNeuropsychologist to refute treatingneuropsychologistNeurosurgeon (if needed)Radiologist/Neuroradi...
Hire the Right ExpertTBI cases are first and foremost brain cases. A neurologistmust be retained. If the plaintiff underwe...
Hire the Right Expert
Treating Expert Versus Forensic Expert—Conflict?
Treating Expert Versus Forensic Expert—Conflict?
Robert R. Foos, Jr.Partnerrfoos@lewiswagner.com          501 INDIANA AVENUE • SUITE 200 • INDIANAPOLIS, INDIANA 46202     ...
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Damages In A Tbi Trial

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  • fluid attenuated inversion recovery (FLAIR) MRI, is more sensitive to traumatic lesionsDiffusion tensor imaging (DTI) examines the integrity of the white matter tracts by measuring the degree and direction of water diffusion, providing a potential marker for white matter injury.single-photon emission computed tomography (SPECT) have demonstrated frontal and/or temporal hypometabolism following MTBI at rest and during working memory tasks.Magnetic Source Imaging (MSI). MSI integrates anatomic data from MRI with electrophysiology data from Magnetoencephalography (MEG).
  • PASAT--Paced Auditory Serial Addition Test assess auditory information processing speed, flexibility and calculation ability.MCMI-III—Millon Clinical Multiaxial Inventory is a personality measure.MMPI2—Minnesota Multiphasic Personality Inventory is a personality measure.CLVT—California Verbal Learning Test
  • PASAT--Paced Auditory Serial Addition Test assess auditory information processing speed, flexibility and calculation ability.MCMI-III—Millon Clinical Multiaxial Inventory is a personality measure.MMPI2—Minnesota Multiphasic Personality Inventory is a personality measure.CLVT—California Verbal Learning Test
  • The personality measures contain built in questions designed to measure patient effort, the effect of psychological factors, and other non-organic variables on the test results.
  • The personality measures contain built in questions designed to measure patient effort, the effect of psychological factors, and other non-organic variables on the test results.
  • The personality measures contain built in questions designed to measure patient effort, the effect of psychological factors, and other non-organic variables on the test results.
  • The personality measures contain built in questions designed to measure patient effort, the effect of psychological factors, and other non-organic variables on the test results.
  • The personality measures contain built in questions designed to measure patient effort, the effect of psychological factors, and other non-organic variables on the test results.
  • The personality measures contain built in questions designed to measure patient effort, the effect of psychological factors, and other non-organic variables on the test results.
  • The personality measures contain built in questions designed to measure patient effort, the effect of psychological factors, and other non-organic variables on the test results.
  • The personality measures contain built in questions designed to measure patient effort, the effect of psychological factors, and other non-organic variables on the test results.
  • The personality measures contain built in questions designed to measure patient effort, the effect of psychological factors, and other non-organic variables on the test results.
  • The personality measures contain built in questions designed to measure patient effort, the effect of psychological factors, and other non-organic variables on the test results.
  • Damages In A Tbi Trial

    1. 1. Catastrophic Damages in aTraumatic Brain Injury TrialDecember 18, 2012 · CONFIDENTIAL MATERIALS
    2. 2. TABLE OF CONTENTSI. What is a Traumatic Brain Injury (TBI)?II. How do I Identify the TBI Case?III. How do I Defend the TBI case?
    3. 3. What is a Traumatic Brain Injury?
    4. 4. DEFINITION OF TBITraumatic brain injury (TBI) is a non-degenerative, non-congenital insult to the brain from an external mechanicalforce, possibly leading to permanent or temporary impairment ofcognitive, physical, and psychosocial functions, with anassociated diminished or altered state of consciousness.The definition of TBI has not been consistent and tends to varyaccording to specialties and circumstances. Often, the term braininjury is used synonymously with head injury, which may not beassociated with neurologic deficits. The definition also has beenproblematic with variations in inclusion criteria.
    5. 5. DEFINITION OF PTSDPTSD is an anxiety disorder that comprises five major criteria.First, one must have been exposed to or witness an event that isthreatening to safety, and one must respond to this event withfear, horror, or helplessness. Second, one must report a re-experiencing symptom, which may include intrusivememories, nightmares, a sense of reliving the trauma, or psychologicalor physiological distress when reminded of the trauma. Third, thereneed to be at least three avoidance symptoms, which can includeactive avoidance of thoughts, feelings, or reminders of thetrauma, inability to recall some aspect of the trauma, withdrawal fromothers, or emotional numbing. Fourth, one must suffer markedarousal, which can include insomnia, irritability, difficultyconcentrating, hypervigilence, or heightened startle response. Thesesymptoms must cause marked impairment to ones functioning, andcan only be diagnosed when they are present at least 1 month afterthe trauma.
    6. 6. What Does the Literature Tell Us?The intersection between traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) has become a major focus ofattention in recent years. Stimulated largely by injuries sustainedin the Iraq and Afghanistan wars, and recent concussion issues inprofessional sports, this issue has been debated widely becausethese conditions, both independently and additively, are regardedas being responsible for much reported impairment followingdeployment and/or injury. There is a substantial probability youwill see overlaps between symptoms. The challenge forattorneys is sorting out the differential diagnosis and determiningthe extent to which presenting symptoms can be attributed toorganic or psychological factors.
    7. 7. Identifying the TBI Case
    8. 8. Cognitive Dissonance versus Cognitive DeficitCognitive dissonance is a psychological factor which disruptsconcentration and may result in neuropsychological test resultsthat may be misinterpreted as an organic injury, or a cognitivedeficit. Whether a symptom’s origin is psychological or organicis the basic difference between a TBI and PTSD diagnosis.Q And I think Dr. Unknown used the term that I findhelpful, cognitive dissonance as opposed to a cognitive deficit?A Yes, sir. Thats absolutely correct.Q So these components can cause a breakup inconcentration, but that doesnt necessarily impute a cognitivedeficit.A Thats beautifully put.
    9. 9. The Various Classifications of TBIBrain injuries are typically classified as mild, moderate orsevere. These classifications can be misleading because they arebased on an initial assessment of the life threatening nature ofthe injury and not the long term consequences of the injury onthe individual. The Glasgow Coma Scale (GCS) was developedto quantify brain injury in acute trauma patients. The scale isbased on a separate assessment of eye, verbal and motorresponsiveness. The GCS may provide some indication of longterm prognosis, particularly in cases of severe brain injury, but ingeneral it is poor at predicting long term outcome.
    10. 10. Mild Traumatic Brain InjuryA "mild" traumatic brain injury is defined as an injury resultingin unconsciousness of less than 30 minutes or an initial GlasgowComa Scale of 13-15. It includes an injury that causes theinjured person to become dazed or disoriented but not acomplete loss of consciousness. It is now widely recognized thatan individual may suffer brain injury resulting in long termcognitive deficits without loss of consciousness.
    11. 11. Moderate and Severe Traumatic Brain InjuryA "moderate" brain injury is one resulting in unconsciousnesslasting from 30 minutes to 6 hours or an initial GCS of 9-12.Severe TBI involves more extended loss of consciousness andpost-traumatic amnesia, which typically results in more severecognitive impairment.
    12. 12. A Neuropsychologist’s Definition of Axonal InjuryQ And I dont think that we have got a definition of a diffuseaxonal injury. Could you describe that for me?A So the brain tissue has different densities, and white matterwhich is the connectivity between different brain regions iscoded -- those axons are coded with whats called a myelinsheath, and thats a fatty substance. And the reason it’s there isbecause it’s kind of like the rubber on an electrical wire that is-- it protects the neuron and it speeds electrochemicaltransmission of the cell. And so if a trauma does occur, injuryto those wires, or the axons can occur, and it disturbs theeffectiveness of that cell to function. And it tends to occur inthe large white matter bundles in the brain which we have allover the place.
    13. 13. When Can a TBI Be Diagnosed?Q If a patient has incurred a mild traumatic brain injury, when-- or Im sorry, how long would you have to wait in order tomake the diagnosis?A Oh, you could make that diagnosis within hours of injury.The issue is youre not going to know how that unfolds formaybe three months or six months or three years depending onthe situation. Let me say, the vast majority of patients withmild traumatic brain injury are perfectly normal six to monthspost-injury. And by that, I mean 70 percent.
    14. 14. Mild Traumatic Brain Injury—How Is It Diagnosed?Q Are all three of these items, the retrograde amnesia, the lossof consciousness, and the post-traumatic amnesia required for adiagnosis of a traumatic brain injury?A So the reality is that there is a fairly poor correlation betweenduration of post-traumatic amnesia and long-term functionaloutcome. Even loss of consciousness doesnt correlate all thatwell with one-year outcomes. And so these measures, like theGlasgow Coma Scale, of the acute circumstances give you somepicture of what youre dealing with. But, if you look at howpeople function in day-to-day life, those relationships arent allthat clear. So the diagnosis of mild TBI is based on that, butultimately its based on neuropsychological findings and alsobased to some extent on neuroimaging findings like CT or MRI.
    15. 15. How Important Are Neuroimaging Findings?Q Is there some type of a diagnostic testing or scan that youcan do to determine if a diffuse axonal injury has occurred?A So -- and I dont mean this in a negative way. But unlessyour patient is willing to have their brain biopsied, then no.However, in the cases of really severe traumatic braininjury, you can see the effects of diffuse axonal injury onscanning usually three to six months post-injury because whathappens, you get ventricular expansion. And so you can seethat on imaging on a case of very severe injury.•Note—new diagnostic testing methods may have better results[CT, MRI (FLAIR, T2, functional), SPECT, MSI, MEG, DTI]
    16. 16. What Are Neuropsychological Findings?Neuropsychological testing is utilized to assess cognitivefunction prior to and following mTBI. Neuropsychologicalbatteries are also utilized for assessment of short and long termpost concussive symptoms. The choice of specificneuropsychological tests varies, but a battery is chosen toassess cognitive skills including immediate and delayedrecall, orientation, verbal memory, attention span, wordfluency, visual scanning and coordination.•Note—tests include PASAT, MCMI-III, MMPI2, CLVT
    17. 17. What Are Neuropsychological Findings?Despite the super-sophisticated names and seeminglysophisticated nature of neuropsychological testing, these testsare actually quite basic. They consist of a number of physicaltasks, i.e., connecting circles with numbers insequence, copying a figure, repeating a string of numbers. Theresults are a measurement based on accuracy and speed incompleting the assigned task. Test results are then compared to―normal‖ people who completed the same tasks.
    18. 18. Example of Neuropsychological Testing
    19. 19. Defending the TBI Case
    20. 20. OBTAINING THE RIGHT RECORDSRaw Test DataFirst Responder Records • Look for Glascow Coma Scale Scores and loss of consciousnessPre-accident • Medical, school, employment, mental health, military, drug history • Establish a baseline IQPost-accident • Medical, school, employment
    21. 21. Glascow Coma Scale in Medical Records
    22. 22. Glascow Coma Scale in Medical Records
    23. 23. Obtain the Right RecordsRaw Testing Data•One set of records that is an absolute must is the raw datagenerated by the plaintiff’s neuropsychologist orneuropsychiatrist. This data is generated during theneuropsychological tests that will be relied upon by theplaintiff’s experts to allege objective proof of the plaintiff’sbrain injury.•These are records that generally the defense team must relyupon and must have their own expert review.•While the tests given to a plaintiff are arguably objective, theyare subject to interpretation.
    24. 24. Example of Raw Test Data
    25. 25. Cognitive Dissonance Can Distort The TestingQ Are there any psychological components that can affect apatients score on the digital span and digital symbol test?A Sure. Anxiety, depression can have -- the research wouldsuggest that anxiety and depression can influence cognitiveperformance to about a standard deviation in terms of level offunctioning.
    26. 26. Thoroughly Review Medical Records
    27. 27. Obtain the Right RecordsPre-Morbid I.Q. Level
    28. 28. Obtain the Right RecordsPre-Morbid I.Q. LevelQ How do you compare the results to a pre-morbid IQ?A Theres a couple of different ways that we make estimatesof pre-injury level of cognitive functioning. One is you canacquire school records. But school records can be useful inthat respect, and there are some tests -- theres one test inparticular referred to as the Wechsler Adult Reading Test. Ifyou add their score on the Wechsler Adult Reading Test to theirage and their level of education, you get a predicted, full scaleintelligence quotient that has, of course, a measurementassociated with it and all the other stuff, but nonetheless givesyou a benchmark of within a standard deviation or so wheresomeones pre-injury functioning probably was.
    29. 29. Obtain the Right RecordsPre-Morbid I.Q. LevelIf there is no prior I.Q. test then the best method for thedefense lawyer to estimate a plaintiff’s pre-morbid I.Q. leveland function is to gather all records that deal with evaluating aperson’s abilities. These include past schoolrecords, employment records, military records, and every othersimilar record that can be obtained for that plaintiff. Frequentlythese records reveal that the plaintiff displayed many of thesame functional disabilities he/she now claims are due to braindamage.
    30. 30. Obtain the Right RecordsPost-Accident Function LevelCurrent employment records, school records, etc., can be usedto demonstrate that a plaintiff is functioning quite well in thereal world post-accident, and has conveniently forgotten to letthe neuropsychologist know that she is obtaining favorableoccupational evaluations after the accident.
    31. 31. Obtain the Right RecordsPost-Accident Function Level
    32. 32. HIRING THE RIGHT EXPERTSNeuropsychologist to refute treatingneuropsychologistNeurosurgeon (if needed)Radiologist/NeuroradiologistAccident Reconstructionist
    33. 33. Hire the Right ExpertTBI cases are first and foremost brain cases. A neurologistmust be retained. If the plaintiff underwent surgery, aneurosurgeon should be brought onto the defense team. Aradiologist, or better yet, a neuroradiologist, should examinethe films to determine the cause of the injury. If a prescriptionor over-the-counter drug is blamed, a pharmacologist shouldmake the defense expert team. In traditional trauma cases –e.g. involving a blow to the head, or injury resulting from amotor vehicle accident – accident reconstructionists andengineers may be needed to refute plaintiff’s theory of how theaccident occurred.
    34. 34. Hire the Right Expert
    35. 35. Treating Expert Versus Forensic Expert—Conflict?
    36. 36. Treating Expert Versus Forensic Expert—Conflict?
    37. 37. Robert R. Foos, Jr.Partnerrfoos@lewiswagner.com 501 INDIANA AVENUE • SUITE 200 • INDIANAPOLIS, INDIANA 46202 317.237.0500 800.237.0505 F: 317.630.2790 www.lewiswagner.com

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