There has been a great deal of advancement in the field of traumatic brain injury in the past twenty years, but unfortunately the insurance industry would just assume go back in time to the 1970’s and stay there. This is because the recent advances in neuroscience and study of the brain have shown us that many of our earlier ideas about the brain were wrong.
Insurance companies continue to defend brain injury cases as they did twenty years ago by relying on medical ideas that are no longer valid – that someone must be rendered unconscious to suffer a traumatic brain injury, that a person with a normal CT or MRI cannot have a brain injury, that there is no mechanism by which brain injury can occur in the context of a mild traumatic brain injury. How do they get away with treating claimants in this way, as if science had not progressed in the last twenty-years? They do it, in part, by relying upon hand picked doctors to perform their compulsory medical exams (CME’s). These examinations are part of every significant case that goes into litigation. The court, the claimants and plaintiff’s attorney have no say over which doctor is chosen. In most cases, even involving moderate or severe TBI, their doctors will find a way to blame the victim or ignore part of the medical evidence. How is this done?
Hiring older or retired doctors who went to medical school and got their training before these discoveries were made. They can then attempt to ignore more modern ideas unless plaintiff’s counsel forces them to do so;
Doctors rely upon “cherry picked” facts out of the case, ignoring data consistent with TBI and relying upon data of limited quality to make opinions. An example of this, in one of my trials, was that a psychiatrist based his opinion that my client had a pre-existing personality disorder based upon a single sentence written in my client’s third grade school chart. This was despite the fact that in 11th and 12th grade she was noted to be “well adjusted and well liked.” This was despite ten independent witnesses that spoke to her ongoing character and work abilities. Which is more reliable, a single sentence written thirty years ago, or the testimony of current friends and co-workers?
Another example is the issue of loss of consciousness. When Plaintiff is claiming TBI and the medical records indicate that there was no loss of consciousness during or immediately after the accident, that fact is treated as the most important thing since the invention of the wheel by the defense doctors. Yet, if the initial medical records show that the plaintiff was unconsciousness and had a diminished Glasgow Coma Scale (GCS), that fact will hardly ever make it into the doctors report. Many of them feel that, while a lack of loss of consciousness can disprove a brain injury, a period of unconsciousness after an accident does not prove a brain injury.
Fortunately, a combination of the influx of our brave men and women from Iraq and Afghanistan, as well as new findings regarding NFL players, have sensitized both the public and younger doctors to the fragility of the brain. What a wonderful and positive change it has been for our soldiers. In the bad old days, and you might remember the movie Patton, when he slapped a “shell-shocked” soldier, there was no such thing as a mild or even moderate brain injury. If you could walk and talk, you were not hurt. There are many sad tales from these years of neglect, many lives in ruin through addiction, or criminal behavior following an injury.
However, the armed forces are currently doing a magnificent job studying mild traumatic brain injury, blast injuries and utilizing the latest tools such as DTI (Diffusion Tensor Imaging) to identify and rehabilitate traumatic brain injuries. Likewise, the NFL players whose brain autopsies have come to light, have shed light on the terrifying damage done during football careers.
The “old” notions about brain injury will live on in TBI litigation, and because of this, attorneys involved in these cases need to be unceasing in their efforts to drag all insurance companies into the bright lights of the 21st Century, so the can see reality, clearly.