Defense attorneys in cases of traumatic brain injury (TBI) are mostly employed by insurance companies.  They often investigate alleged concussions or TBIs.  “Investigation” may not seem the natural assignment for an attorney.  Yet, absent wholehearted and sophisticated detective work, the insurance company will be blind to the medical reality of a case. 

This creates an strong incentive for the defense to find one of the few authentically qualified TBI expert witnesses–and to collaborate with him or her to assemble a team with the collective capacity to determine the truth and testify persuasively.

Your Physician Expert

A traumatic brain injury expert witness is, by definition and, in some jurisdictions, by law, a physician.  Members of only five disciplines need apply: neurologists, neuropsychiatrists, physiatrists, neurosurgeons, and Brain Injury Medicine specialists.  As explained in Blog post #1, however, only a minority of those with such credentials are really experts in this fast moving field.  Please apply the selection criteria suggested in that post.

The Team

It is surprising how often a defense attorney will ask the traumatic brain injury physician whether or not they really also need to retain, at the barest minimum,

• a neuropsychologist 
• and a Life Care Planner.

When the demand is less than a million dollars, perhaps one can scrimp on experts.  When the demand is higher, it is a fool’s errand to litigate with less than the minimal team.  In addition to the minimum, one often needs:

• a neuroradiologist 
• an accident reconstructionist 
• a day-in-the-life expert 
• an economist/annuity expert 

and/or a sub rosa investigator

This last deserves special comment.  Although 40% of plaintiffs exaggerate their symptoms, frank malingering is rare and devilishly hard to prove.  When the demand is for $5 million dollars and the plaintiff is active outside his or her home, it behooves the defense to invest in sub rosa scrutiny.  A $200,000 invoice from a videographer is often a tremendous bargain, since there is virtually no other way to persuade a jury that a plaintiff is faking his or her disability.

As ever, the problem in assembling a team is selection.  An experienced physician/TBI expert should be able to steer you toward a trustworthy neuropsychologist, neuroradiologist, and life care planner.  One can find reputable experts in the other disciplines via expert witness directories (see Blog post #1).  Yet word of mouth guidance from other attorneys is, by far, the most reliable resource.

Valuing the Case

To estimate what resources must be invested, the defense team should pay less attention to the demand letter and more to a rational evaluation of the case.  Plaintiff’s attorney often point to the initial “Severity of injury” as a predictor of lifelong disability.  But “severity” is a misnomer.  It is measured on day one based on the emergency room assessment.   It is poorly predictive of outcome.  

The real question is “what lasting effect will this traumatic brain injury have?”  That is never neurologically predictable on day one, and rarely predictable at three months post-injury.  In a sense, “severity” forever remains subjective, since the same kind of injury may produce different degrees of disability in different people.  A female hockey player with a 20% initial loss of brain connectivity may be raring to get back on the ice in a week.  A school teacher with the same brain change may be unqualified to teach for a year.

It is nonetheless a useful exercise to apply simple algorithms to narrow the estimate.

Special damages are not hard to calculate.  Medical expenses and foregone wages are objective numbers.  Acute hospitalizations average about six to ten days and cost an average of $55,000.  Acute inpatient rehabilitation costs an average of $46,000.  Lost wages depend on years of remaining productivity.  In California, for instance, median household income is $75,277.  The sole provider-survivor injured at age 50 may reasonably claim $1,129,000 in lost income.  Had he or she been injured at age 25, a reasonable estimate might be $3,011,000.

But there is a catch: only a subset of survivors will have established a fixed and predictable career.  A graduate student in molecular biology, thesis yet to be submitted?  A Lyft driver taking courses in nursing?  A valued intern at a renowned talent agency?  A junior manager, junior executive, newly hired legal associate, or up and coming sportswear buyer?  Your traumatic brain injury expert can help predict the duration and degree of disability, but you need an economist to generate a credible estimate of future earnings.

General damages are an entirely different kettle of fish.  They are non-objective.  They almost always involve emotional/psychiatric rather then cognitive, motor, or sensory disabilities.  Mental or physical pain and suffering; shock and mental anguish; emotional distress; loss of consortium.

Many jurisdictions place arbitrary limits on these damages.  Some courts provide rough guidance, for instance, specifying $800 per day of suffering.  Your TBI expert may or may not have applicable knowledge.  That expert characterizes the likely disability.  No one with a lifetime disability is ever “made whole.”  But a team can estimate the monetary value that society judges has been lost to a TBI survivor.

The defense attorney in cases of traumatic brain injury litigation finds him or herself in a tumultuous sea of new facts, unfamiliar to almost all of the participants in the litigation.  The neuroscience, imaging technology, and clinical expectations are changing at head spinning velocity.  It bears repeating to the point of redundancy: success depends on finding and collaborating with one of the few authentic traumatic brain injury experts. 

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. 

Consider five of neurology’s more egregious historical errors and how today’s attorney can collaborate with his traumatic brain jury expert witness to dodge the tiger traps lurking at the courtroom threshold.

1. Concussions does not usually involve loss of consciousness.

A concussion is a rattling of the brain due to external force.  Brain rattling only disrupts consciousness if it happens to impact the arousal system.  The arousal system is mostly in the brainstem, hypothalamus, and thalamus.  (Boxers aim for the side of the jaw because it twists the neck and harms the arousal structures.)  Since only a minority of concussions impact the arousal system, only a minority of concussions cause loss of consciousness. 

Legal implications:  Some defense attorneys argue, “She was not knocked out, so she did not have a concussion.”  This is nonsense.  A plaintiff’s expert must be able to educate all parties that a victim who remained consciousness possibly suffered a disabling injury.

2. Many, and possibly all TBIs, have lasting effects.

The majority of victims feels as if they have “recovered” after a week to six months.  Neuropsychological test scores often revert to normal.  But neuropsychological tests are grossly insensitive to brain damage.  Modern technology reveals that the brain remains changed for a year or a lifetime, even if the victim feels well.  That is because TBI often triggers an insidious process of degeneration–a process that may or may not cause symptoms during the remaining lifetime.  Unfortunately, we can only see this by examining the brain with a microscope.

Legal implications:  A defense attorney may argue, “He feels fine.  His scores are normal.  His scans are normal.  There is no lasting damage.”  This is misleading.  Neither self-report nor any single testing method (possibly excepting advanced neuroimaging) detects these subtle, long-term brain changes.  Honest experts on both sides should combine the observations of witnesses with multiple sensitive forms of examination to determine whether the victim is likely to suffer long-term disability.

3. TBI survivors may get much better, but later develop degenerative neurological disorders.

Decades of evidence shows that some TBI survivors suffer “late” effects.  A victim may seem to have recovered, but an inflammatory process may lurk in their brain for decades.  The most common late effect is Parkinson’s Disease.  Unfortunately, we cannot predict which TBI survivors will suffer early onset dementia.

Legal implications:  Although a plaintiff might be harboring progressive brain deterioration, there is no way to prove it until symptoms appear late in life.  One might mention the risk in passing, but attorneys on both sides should avoid a debate about this unpredictable effect.

4. The emergency room examination is a poor predictor of outcome.

The emergency room doctor is limited to three forms of investigation: history, neurological examination, and a neuroimage.  

• The history of the accident is valuable in confirming that the head was struck and the victim’s behavior changed.  That does not predict the outcome.
• The neurological examination, including the Glasgow Coma Scale Score, is valuable in detecting focal brain damage and duration of unresponsiveness.  These do not predict outcome.
• A CT is often performed.  It rarely shows any change at all, or any change that predicts outcome.  The exception: when the CT show devastating physical distortion of the brain, such as a severely herniating brain with hemorrhages, the prognosis is poor.

Legal implications:  A defense attorney may argue, “Her Glasgow scale was very low and her CT showed blood in her head.  She will never go back to work.”  This is illogical.  TBI experts on both sides should agree that problems observed on day one are poor predictors of long-term outcome.

5. Neuropsychological testing cannot detect brain damage.

Neuropsychological testing is valuable in measuring current level of function and in detecting plaintiffs who fail to give their best effort (“faking bad”).  But these tests only measure behavior such as poor memory or poor drawing.  No neuropsychological test or combination of test proves that there was brain damage

Legal implications: You will need a neuropsychologist on your team to determine whether the plaintiff is giving his or her best effort during testing.  That can help uncover the 40% of plaintiffs who exaggerate, and sometimes exposes malingering.  But if your neuropsychologist makes claims about brain biology, he or she may be impeached for falsely inflating the meaning of the tests.

Find a winner.  The explosion of recent knowledge about the lasting effects of traumatic brain injury means that only a small proportion of neurologists or neuropsychiatrists have the advanced training required to analyze a case of TBI.  Please see Blog post #1.  Both plaintiff’s and defense attorneys profit by retaining one of the few genuine experts.  

A Neurologist is an M.D. who has completed residency training in neurology, the study of the brain and nerves.  His or her job as a medical expert witness is to consult with an attorney in cases such as:

• Traumatic brain injury (TBI)
• Concussion
• Epilepsy
• Stroke
• Dementia

The neurologist expert witness must determine the diagnosis and prognosis to a reasonable degree of medical probability.  He or she strives to determine what happened to a plaintiff (causation) and how that problem may or may not alter the plaintiff’s life (damages).  

A Psychiatrist is an M.D. who completed residency training in psychiatry, the study of mental illness.  A psychiatrist expert witness consults in cases such as:

• PTSD
• Depression
• Anxiety
• Psychosis

A Neuropsychiatrist is an M.D. who has completed residency training in neurology or psychiatry or both, and has additional subspecialty training that integrates knowledge of brain and behavior.  Caution!  The majority of MDs who call themselves neuropsychiatrists are not.  They are psychiatrists who usurp the prefix “neuro” to embellish their credentials. There are three legitimate pathways to a career in neuropsychiatry:

Path #1. Complete residencies in BOTH neurology and psychiatry

Path #2. Complete a residency in neurology OR psychiatry, plus a two year fellowship in neuropsychiatry

Path #3. The best qualified neuropsychiatrists are those who, in addition to following pathways 1 or 2, go on to fulfill the practice and testing requirements of the United Council for Neurologic Subspecialties (UNCNS) in Behavioral Neurology and Neuropsychiatry.  

A neuropsychiatrist consults regarding disorders such as:

• Traumatic brain injury
• PTSD, especially when combined with mild traumatic brain injury (mTBI)
• Depression due to stroke, brain injury, or epilepsy
• Anxiety due to stroke, brain injury, or epilepsy
• Psychosis due to stroke, brain injury, or epilepsy
• Neurobehavioral change due to neurological or psychiatric disorders (for instance, stroke, post-concussive disorder, multi-infarct dementia, or “Chronic traumatic encephalopathy (CTE)”)

A neuropsychiatrist has some advantages over other TBI experts.  Advanced transdisciplinary training allows him or her to synthesize the results from the:

• neurological examination
• psychiatric examination
• neuropsychological testing
• blood tests
• neuroimaging
• electroencephalography

and other special tests to make a diagnosis, rule out malingering, and predict the long-term effects on the plaintiff’s life.

Dr. Victoroff completed both a neurology and a psychiatry residency at Harvard, as well as a two year neurobehavior fellowship at UCLA, and is also certified by the UCNS.

Who is a Traumatic Brain Injury Expert Witness?

By virtue of knowledge and sometimes by fiat of law, the traumatic brain injury expert witness is a physician.  He or she will be your team leader.  He or she must be the embodiment of the truth in the eyes of the triers of fact, the general who marshals the troops to provide a coordinated, coherent, and compelling narrative.  You must somehow find a capable and honest expert.  

How?  Physicians from five disciplines can theoretically be qualified traumatic brain injury expert witnesses.  

1. Some Neurologists can testify, chiefly those trained in the post-NFL era after which it became obvious that sub-concussions can cause permanent brain damage, and especially the small subgroup of neurologists who actually direct traumatic brain injury clinics.

2. Some Neuropsychiatrists can testify, chiefly those who are qualified by the United Council for Neurologic Subspecialties (UCNS) in Behavioral Neurology and Neuropsychiatry.

3. Some Physiatrists (physical medicine and rehabilitation doctors) can testify, chiefly those whose rehabilitation role is focused on traumatic brain injury.

4. Some Neurosurgeons can testify, chiefly on cases that required intervention, such as placement of a pressure monitor or evacuation of a hematoma.  Neurosurgeons rarely care for cases of concussion/mild traumatic brain injury, although a few have published on this subject.

5. Some Brain Injury Medicine specialists can testify.  Since 2014, the American Board of Physical Medicine and Rehabilitation (ABPMR) and American Board of Psychiatry and Neurology (ABPN) have offered certification in Brain Injury Medicine (BIM).  Certification in this new discipline requires:

• certification as a diplomate of the ABPMR or
• subspecialty certification in sports medicine, plus (c) completion of a fellowship in BIM.

Two other factors are critical in selecting your expert.  The first is having a track record of publications.  Peer-reviewed writings not only establish the credibility of the author but the validity of the science upon which she or he relies.

The second is attitude.  Jurors doubt the impartiality of experts.  The plaintiff’s expert who exaggerates the damages may be punished when jurors hear otherwise from more reasonable-sounding witnesses.  The defense expert who seems unsympathetic to the plaintiff may be punished for his or her apparent indifference to suffering.  Pick the expert with gravitas.

Where are these experts?  Experienced attorneys gradually compile a list of good experts, and this word-of-mouth wisdom is invaluable.  Expert witness compilations on websites such as

• Juris Pro (search brain injury),
• AMFS (search neurology expert witness), or
• ExpertPages (search traumatic brain injury)

can also be helpful, although the profiles are self-composed and require careful scrutiny.  It is worth the effort to find an experienced, credible expert who is able to present the truth.