The document discusses strategies for defending a traumatic brain injury case, including obtaining relevant medical records to establish baseline cognitive function and post-injury functioning, hiring expert witnesses such as neuropsychologists and radiologists to analyze test data and medical imaging, and addressing the potential for psychological factors like anxiety or depression to influence cognitive test performance.

1. Catastrophic Damages in a
Traumatic Brain Injury Trial
December 18, 2012 · CONFIDENTIAL MATERIALS

2. TABLE OF CONTENTS
I. What is a Traumatic
Brain Injury (TBI)?
II. How do I Identify the
TBI Case?
III. How do I Defend the
TBI case?

3. What is a Traumatic Brain
Injury?

4. DEFINITION OF TBI
Traumatic brain injury (TBI) is a non-degenerative, non-
congenital insult to the brain from an external mechanical
force, possibly leading to permanent or temporary impairment of
cognitive, physical, and psychosocial functions, with an
associated diminished or altered state of consciousness.
The definition of TBI has not been consistent and tends to vary
according to specialties and circumstances. Often, the term brain
injury is used synonymously with head injury, which may not be
associated with neurologic deficits. The definition also has been
problematic with variations in inclusion criteria.

5. DEFINITION OF PTSD
PTSD is an anxiety disorder that comprises five major criteria.
First, one must have been exposed to or witness an event that is
threatening to safety, and one must respond to this event with
fear, horror, or helplessness. Second, one must report a re-
experiencing symptom, which may include intrusive
memories, nightmares, a sense of reliving the trauma, or psychological
or physiological distress when reminded of the trauma. Third, there
need to be at least three avoidance symptoms, which can include
active avoidance of thoughts, feelings, or reminders of the
trauma, inability to recall some aspect of the trauma, withdrawal from
others, or emotional numbing. Fourth, one must suffer marked
arousal, which can include insomnia, irritability, difficulty
concentrating, hypervigilence, or heightened startle response. These
symptoms must cause marked impairment to one's functioning, and
can only be diagnosed when they are present at least 1 month after
the trauma.

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 of
attention in recent years. Stimulated largely by injuries sustained
in the Iraq and Afghanistan wars, and recent concussion issues in
professional sports, this issue has been debated widely because
these conditions, both independently and additively, are regarded
as being responsible for much reported impairment following
deployment and/or injury. There is a substantial probability you
will see overlaps between symptoms. The challenge for
attorneys is sorting out the differential diagnosis and determining
the extent to which presenting symptoms can be attributed to
organic or psychological factors.

7. Identifying the TBI Case

8. Cognitive Dissonance versus Cognitive Deficit
Cognitive dissonance is a psychological factor which disrupts
concentration and may result in neuropsychological test results
that may be misinterpreted as an organic injury, or a cognitive
deficit. Whether a symptom’s origin is psychological or organic
is the basic difference between a TBI and PTSD diagnosis.
Q And I think Dr. Unknown used the term that I find
helpful, cognitive dissonance as opposed to a cognitive deficit?
A Yes, sir. That's absolutely correct.
Q So these components can cause a breakup in
concentration, but that doesn't necessarily impute a cognitive
deficit.
A That's beautifully put.

9. The Various Classifications of TBI
Brain injuries are typically classified as mild, moderate or
severe. These classifications can be misleading because they are
based on an initial assessment of the life threatening nature of
the injury and not the long term consequences of the injury on
the individual. The Glasgow Coma Scale (GCS) was developed
to quantify brain injury in acute trauma patients. The scale is
based on a separate assessment of eye, verbal and motor
responsiveness. The GCS may provide some indication of long
term prognosis, particularly in cases of severe brain injury, but in
general it is poor at predicting long term outcome.

10. Mild Traumatic Brain Injury
A "mild" traumatic brain injury is defined as an injury resulting
in unconsciousness of less than 30 minutes or an initial Glasgow
Coma Scale of 13-15. It includes an injury that causes the
injured person to become dazed or disoriented but not a
complete loss of consciousness. It is now widely recognized that
an individual may suffer brain injury resulting in long term
cognitive deficits without loss of consciousness.

11. Moderate and Severe Traumatic Brain Injury
A "moderate" brain injury is one resulting in unconsciousness
lasting from 30 minutes to 6 hours or an initial GCS of 9-12.
Severe TBI involves more extended loss of consciousness and
post-traumatic amnesia, which typically results in more severe
cognitive impairment.

12. A Neuropsychologist’s Definition of Axonal Injury
Q And I don't think that we have got a definition of a diffuse
axonal injury. Could you describe that for me?
A So the brain tissue has different densities, and white matter
which is the connectivity between different brain regions is
coded -- those axons are coded with what's called a myelin
sheath, and that's a fatty substance. And the reason it’s there is
because it’s kind of like the rubber on an electrical wire that is
-- it protects the neuron and it speeds electrochemical
transmission of the cell. And so if a trauma does occur, injury
to those wires, or the axons can occur, and it disturbs the
effectiveness of that cell to function. And it tends to occur in
the large white matter bundles in the brain which we have all
over the place.

13. When Can a TBI Be Diagnosed?
Q If a patient has incurred a mild traumatic brain injury, when
-- or I'm sorry, how long would you have to wait in order to
make the diagnosis?
A Oh, you could make that diagnosis within hours of injury.
The issue is you're not going to know how that unfolds for
maybe three months or six months or three years depending on
the situation. Let me say, the vast majority of patients with
mild traumatic brain injury are perfectly normal six to months
post-injury. And by that, I mean 70 percent.

14. Mild Traumatic Brain Injury—How Is It Diagnosed?
Q Are all three of these items, the retrograde amnesia, the loss
of consciousness, and the post-traumatic amnesia required for a
diagnosis of a traumatic brain injury?
A So the reality is that there is a fairly poor correlation between
duration of post-traumatic amnesia and long-term functional
outcome. Even loss of consciousness doesn't correlate all that
well with one-year outcomes. And so these measures, like the
Glasgow Coma Scale, of the acute circumstances give you some
picture of what you're dealing with. But, if you look at how
people function in day-to-day life, those relationships aren't all
that clear. So the diagnosis of mild TBI is based on that, but
ultimately it's based on neuropsychological findings and also
based to some extent on neuroimaging findings like CT or MRI.

15. How Important Are Neuroimaging Findings?
Q Is there some type of a diagnostic testing or scan that you
can do to determine if a diffuse axonal injury has occurred?
A So -- and I don't mean this in a negative way. But unless
your patient is willing to have their brain biopsied, then no.
However, in the cases of really severe traumatic brain
injury, you can see the effects of diffuse axonal injury on
scanning usually three to six months post-injury because what
happens, you get ventricular expansion. And so you can see
that 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. What Are Neuropsychological Findings?
Neuropsychological testing is utilized to assess cognitive
function prior to and following mTBI. Neuropsychological
batteries are also utilized for assessment of short and long term
post concussive symptoms. The choice of specific
neuropsychological tests varies, but a battery is chosen to
assess cognitive skills including immediate and delayed
recall, orientation, verbal memory, attention span, word
fluency, visual scanning and coordination.
•Note—tests include PASAT, MCMI-III, MMPI2, CLVT

17. What Are Neuropsychological Findings?
Despite the super-sophisticated names and seemingly
sophisticated nature of neuropsychological testing, these tests
are actually quite basic. They consist of a number of physical
tasks, i.e., connecting circles with numbers in
sequence, copying a figure, repeating a string of numbers. The
results are a measurement based on accuracy and speed in
completing the assigned task. Test results are then compared to
―normal‖ people who completed the same tasks.

18. Example of Neuropsychological Testing

19. Defending the TBI Case

20. OBTAINING THE RIGHT RECORDS
Raw Test Data
First Responder Records
• Look for Glascow Coma Scale Scores and loss of consciousness
Pre-accident
• Medical, school, employment, mental health, military, drug history
• Establish a baseline IQ
Post-accident
• Medical, school, employment

21. Glascow Coma Scale in Medical Records

22. Glascow Coma Scale in Medical Records

23. Obtain the Right Records
Raw Testing Data
•One set of records that is an absolute must is the raw data
generated by the plaintiff’s neuropsychologist or
neuropsychiatrist. This data is generated during the
neuropsychological tests that will be relied upon by the
plaintiff’s experts to allege objective proof of the plaintiff’s
brain injury.
•These are records that generally the defense team must rely
upon and must have their own expert review.
•While the tests given to a plaintiff are arguably objective, they
are subject to interpretation.

24. Example of Raw Test Data

25. Cognitive Dissonance Can Distort The Testing
Q Are there any psychological components that can affect a
patient's score on the digital span and digital symbol test?
A Sure. Anxiety, depression can have -- the research would
suggest that anxiety and depression can influence cognitive
performance to about a standard deviation in terms of level of
functioning.

26. Thoroughly Review Medical Records

27. Obtain the Right Records
Pre-Morbid I.Q. Level

28. Obtain the Right Records
Pre-Morbid I.Q. Level
Q How do you compare the results to a pre-morbid IQ?
A There's a couple of different ways that we make estimates
of pre-injury level of cognitive functioning. One is you can
acquire school records. But school records can be useful in
that respect, and there are some tests -- there's one test in
particular referred to as the Wechsler Adult Reading Test. If
you add their score on the Wechsler Adult Reading Test to their
age and their level of education, you get a predicted, full scale
intelligence quotient that has, of course, a measurement
associated with it and all the other stuff, but nonetheless gives
you a benchmark of within a standard deviation or so where
someone's pre-injury functioning probably was.

29. Obtain the Right Records
Pre-Morbid I.Q. Level
If there is no prior I.Q. test then the best method for the
defense lawyer to estimate a plaintiff’s pre-morbid I.Q. level
and function is to gather all records that deal with evaluating a
person’s abilities. These include past school
records, employment records, military records, and every other
similar record that can be obtained for that plaintiff. Frequently
these records reveal that the plaintiff displayed many of the
same functional disabilities he/she now claims are due to brain
damage.

30. Obtain the Right Records
Post-Accident Function Level
Current employment records, school records, etc., can be used
to demonstrate that a plaintiff is functioning quite well in the
real world post-accident, and has conveniently forgotten to let
the neuropsychologist know that she is obtaining favorable
occupational evaluations after the accident.

31. Obtain the Right Records
Post-Accident Function Level

32. HIRING THE RIGHT EXPERTS
Neuropsychologist to refute treating
neuropsychologist
Neurosurgeon (if needed)
Radiologist/Neuroradiologist
Accident Reconstructionist

33. Hire the Right Expert
TBI cases are first and foremost brain cases. A neurologist
must be retained. If the plaintiff underwent surgery, a
neurosurgeon should be brought onto the defense team. A
radiologist, or better yet, a neuroradiologist, should examine
the films to determine the cause of the injury. If a prescription
or over-the-counter drug is blamed, a pharmacologist should
make the defense expert team. In traditional trauma cases –
e.g. involving a blow to the head, or injury resulting from a
motor vehicle accident – accident reconstructionists and
engineers may be needed to refute plaintiff’s theory of how the
accident occurred.

34. Hire the Right Expert

35. Treating Expert Versus Forensic Expert—Conflict?

36. Treating Expert Versus Forensic Expert—Conflict?

37. Robert R. Foos, Jr.
Partner
rfoos@lewiswagner.com
501 INDIANA AVENUE • SUITE 200 • INDIANAPOLIS, INDIANA 46202
317.237.0500 800.237.0505 F: 317.630.2790 www.lewiswagner.com