A brain injury is a very serious and very real injury, yet it is very difficult for attorneys to prove in court. Juries cannot "see" a brain injury, and the diagnostic testing will often be normal, even when the impairments are disabling. This leads to brain injury accident victims being routinely under-compensated as insurance companies choose to defend these cases more aggressively in court.
Another common problem is that many injury lawyers often do not understand how multiple injuries can affect, and exacerbate the symptoms of a traumatic brain injury. This interplay from multiple injuries - which is quite common after a serious car accident - causes a "combination effect" on the accident victim, as each of these injuries affects and often makes worse other injuries. This creates the vicious downward spiral that causes so many seriously injured accident victims to deteriorate over time - think of it as the combination effect of multiple injuries causing a vicious interplay of symptoms from a brain injury, other physical injuries, fatigue, depression and pain - all affecting one another and making each one worse in turn.
As many doctors who treat multiple injuries and chronic pain will say, when people have multiple injuries, problems go up by multiplication, not by addition. With multiple injuries, sadly, 1 + 1 does not always equal 2. Many accident victims begin to deteriorate under this vicious downward cycle of injuries exacerbating one another and the constant pain, fatigue, and lack of sleep, which makes everything worse.
People with Brain Injuries Often Also Have Depression
It is well accepted in medical and scientific literature that people who suffer traumatic brain injury often suffer from depression. Many defense doctors accuse accident victims of "malingering" by overlooking the effect that depression, or chronic pain (or both) will have on someone who also has this type of injury. Yet these are far more reasonable explanations for why an accident victim will perform worse over time on repeat neuropsychological testing, or in life, instead of improving as these defense doctors always expect.
Lang, Iverson, and Rose undertook a study to "examine the influence of depression on post-concussion symptom reporting and patients following mild traumatic brain injury." These researchers confirmed that people with mild traumatic injuries, concussions AND depression experienced significantly more post-concussion symptoms; and that these concussion symptoms were more severe than people who only suffered with depression and those who only suffered traumatic brain injury.
The study is called "Depression Strongly Influences Post-Concussion Symptom Reporting Following Mild Traumatic Brain Injury" and it can be found in the Journal of Head Trauma Rehabilitation, Volume 26, No. 2, pp 127-137.
People With Brain Injuries are Often Fatigued
There are also important facts about the connection between fatigue and brain damage that injury lawyers should know.
First and most importantly: Brain damaged patients tend to fatigue easily.
Easy fatigability can also be a chronic problem, and many brain damaged patients are fatigued most of the time.
Once fatigued, victims take longer to recuperate than normal people.
Some patients get fatigued so quickly that they can only work for brief periods of time.
Depression and frustration are often intimately related to fatigue in brain damaged patients.
Fatigue evidence can be more persuasive than other types of evidence in brain injury lawsuits, such as neuroimaging, in establishing why someone is disabled and why they cannot hold a job. There are tests that lawyers can use to better detect fatigue, such as Universal Work Skills Evaluations.
Someone who suffers from significant fatigability cannot hold a job. It is part of the challenge as attorneys representing people with head injuries to be able to make these significant deficits understandable in the courtroom.
Showing "invisible" Injuries With Medical Tests
While traditional forms of imaging tests like MRIs and CT scans often come out normal, there are now some tests such as diffusion tensor imaging (DTI) that hold opportunities for injury attorneys helping accident victims to show what would otherwise be "invisible" injuries. This will prove increasingly helpful as many insurance companies and defense lawyers still choose to defend these cases because TBI is difficult to prove in the courtroom. DTI is a scan that helps assess traumatic brain injuries and closed-head injuries after car accidents. To be specific, it's a form of MRI (magnetic resonance imaging) that measures the way water moves in several directions through the brain's white matter.
Although DTI is not enough to win a traumatic head injury lawsuit on its own, it can be used as an important tie-breaker to corroborate evidence when a treating doctor says there is an injury, but the defense doctor hired by the insurance company says there isn't.
A lawyer should never just point to an image from a DTI test and say, "There, that's my case". But what a lawyer can do a good job of is matching up the objective testing like the DTI, with the neuropsychological findings. Let's say the neuropsychologist findings show frontal lobe and temporal lobe damage. If the DTI shows defects or abnormalities in the same areas, then it's consistent with what the doctors are finding and with what the lay witness, the doctors and the victim are saying is wrong with him. It all becomes consistent and reinforces one another. Jury consultants refer to these multiple layers of evidence as "laminating the wood" as each layer makes the case stronger and more credible.
Diffusion tensor imaging will be an important part of proving the "invisible injury" case in court.
Education, Commitment, and Hard Work
With very few dedicated brain injury lawyers out there, it becomes more important than ever to educate lawyers on what to look for and how to better present these cases, so they can be fairly valued with insurance companies and head injury victims will no longer be deliberately undercompensated. This ultimately depends on lawyers who have chosen to undertake the task of representing these innocent victims in the courtroom to never stop educating themselves so that they may better serve clients.