Choose your plaintiff wisely
The phone will ring. A stranger will complain of distress. If an attorney looks at some preliminary medical records, he or she may see clues suggesting that an accident occurred, an injury occurred, and brain damage has persisted. Yet only a small proportion of those who complain after a head impact are viable plaintiffs in litigation. Too many seek a financial windfall when they ought to seek a return to good health.
One step can avert courtroom catastrophe and make your case bulletproof in the face of the expert rebuttal: pick your plaintiff wisely. How can you refine the gold from the dross? Here is a simple algorithm:
1. Verify that a brain rattling accident occurred. Pass on the case if the police report cannot be cited as evidence that the brain was rattled. (E.g., visible damage to the head or the interior of the vehicle.)
2. Verify that a person with medical training judged that a brain rattling accident occurred. Pass on the case if the EMT narrative conflicts with the plaintiff’s.
3. Verify that an immediate effort was made to seek treatment. The plaintiff whose first M.D. encounter was three days later will elicit juror doubt.
4. Pass on the case in which the plaintiff contacted an attorney immediately. They guy who calls you from the accident scene is unlikely to have suffered significant brain damage.
5. Pass on the case if the plaintiff failed to follow treatment or rehab recommendations. Failure to mitigate is a defense.
6. Do not conclude that severe harm has been done based on initial severity. One of the biggest advances in this century is the realization that initial severity has little value in predicting long-term outcome.
7. Do not assume that there has been disabling brain damage based on a neuroimage (see below)
8. Pass on the case if the plaintiff fails validity testing by a neuropsychologist.
9. Delay filing if only a few months have passed. The rebuttal expert will explain that it is impossible to predict long-term consequences so soon.
10. Even before retaining your physician expert witness, it is often worthwhile to follow the preliminary steps outlined below.
The first steps in record review are often misleading
For many attorneys the first step is to review the early records. Blood drips from her forehead! The police could not arouse her! The emergency room doctor wrote “Severe head injury”! The initial severity and early examinations are poorly predictive of the outcome. As a rule of thumb, much recovery often occurs over the first two years. If the attorney is swayed into taking the case by the dramatic early records and rushes into litigation, he or she may be flummoxed when the plaintiff recovers before the exchange of discovery.
For many attorneys the second step is to request that an expert M.D. review the records. That may not be the best choice. Until neuropsychological testing has ruled out faking, no M.D. can be confident that the plaintiff’s complaints are real. A neurologist may ask that the attorney contact him or her after the neuropsychological test results are in hand.
Do not get excited by a neuroimage
Some plaintiff’s attorneys–it’s human nature–become confident when they learn that their client had an abnormal neuroimage. They may rush to get the records into the hands of a physician…and then frown when they hear, “These imaging changes are not evidence of a traumatic injury with lasting effects.” The problem is that:
- An emergency room CT almost never predicts long-term outcome
- A later neuroimage–whether it is an MRI, functional MRI, SPECT, or PET scan–may show apparent brain change but does not predict outcome.
An abnormal neuroimage has a potent effect on jurors. However, the defense expert will correctly point out that abnormalities on images tend to vanish with time and do not predict cognitive, emotional occupational, or social disabilities.
A possible exception may be diffusion tensor imaging (DTI). Several courts have ruled that, if a board certified neuroradiologist opines that a DTI shows brain damage, it does.
Retain a neuropsychologist early
It may seem counterintuitive to retain your neuropsychologist even before you find your MD traumatic brain injury expert. Yet physicians may spend many hours analyzing a case they should never have received, because the plaintiff grossly exaggerates his or her symptoms.
One can save a great deal of time and money by first having the plaintiff examined by a neuropsychologist. In four hours, the psychologist can not only measure the plaintiff’s current functioning but–much more important for case selection–can determine whether the plaintiff is inflating his or her symptoms or failing to give his or her best effort. This is called validity or response bias testing. Validity testing is a good way to exclude perhaps half of the plaintiffs who request representation.
Obtain past medical and school records
Was the plaintiff brain damaged at birth? On the playground? A disciplinary nightmare by age nine? A high school drop-out? A migraineur and substance abuser? A serial litigant? None of these factors in any way precludes the possibility of the plaintiff having suffered a debilitating new brain injury. They will, however, require arguments by the TBI expert that may or may not be supported by today’s science.
Talk with impartial observers
It is remarkable how often an attorney will file a case, never having spoken to the plaintiff’s employer to determine whether there was any observable decline in function post-accident. Family members are all over the map, depending on personal biases and dreams of compensatory wealth. Even before the big expense of retaining an authentic traumatic brain injury expert witness, a couple phone calls to supervisors, coworkers, or ex-wives may offer revealing hints at the truth.
Choose your expert carefully
Homework done, having narrowed the list of plaintiffs to the few who seem to have suffered from a traumatic brain injury with lasting consequences, you are ready to find a capable and honest expert.
As summarized in the blog post titled “Who is a neurologist….?” five medical disciplines qualify a physician to testify about traumatic brain injuries. Neurologists, neuropsychiatrists, physiatrists, neurosurgeons, and Brain Injury Medicine specialists technically qualify. But, due to the rapid advances in TBI science, only a small proportion of doctors in each discipline is capable of analyzing causation and damages after a traumatic brain injury. Blog post #1 provides guidance for your search.
