Defense Considerations in Traumatic Brain Injury Cases


A defense lawyer typically gets involved after a lawsuit has been filed. At times, there will be a significant amount of investigation done by the insurance company adjuster. Rarely is it well-focused on the Traumatic Brain Injury (TBI), however. If a thorough gathering of records has occurred, it will be quite useful for the defense of the TBI.

In the more successful cases, the greatest part of the defense will be developed through records and history. If the defense can rest on an "exposure" of prior similar complaints, or an "exposure" of exaggerations or outright false histories, counsel probably does not have to hire an opposing expert.

The following is an outline of the thought process of a defense lawyer as he/she evaluates and then prepares a defense to a claim of TBI.

Accident Details

Obviously, the injuries purportedly arise from an incident. Whether it is a car accident, a slip and fall, an industrial accident, or any other occurrence, the defense lawyer must know the details of the event. Eventually, the facts are going to be presented to a jury. The jury will not have the experience or insight of the lawyers or doctors. The jury may well have its own preconceptions about the likelihood of injury from the various types of accidents.

If a lawyer knows the details of the accident, it may be possible to play to those stereotypes. Even if one does not "play to stereotypes," the details of the accident will be (or should be) quite important to the medical experts who will be testifying. When a case or claim of TBI arrives, the following information should be uncovered and evaluated.

  • What was the nature of the accident? Rear-ender, T-bone, sideswipe
  • Amount of damage
  • Photos
  • Speeds involved; Change of velocity
  • Witness statements and observations of claimants functioning
  • Claimant's self-report at scene
  • EMT reports and observations
  • Accompanying physical injuries

Prior Medical History

Few claimants in this business lack a significant history. Treating doctors (who become claimant's key witnesses at trial) may ignore, overlook or minimize past history. This is contrary to the way most people think and most jurors think. We instinctively recognize that a person's past medical history plays a role in their presentation after an accident.

At times it appears that claimants instinctively try to hide their past medical care. That can only backfire. It is almost always discovered. Then, the defense has two options: portray the claimant as a liar who tried to hide records, or portray the medical providers as well-intentioned but uninformed due to the concealment of relevant information.

Neither is good for the claimant. When defending a TBI claim, always look for the following in the pre-accident medical records:

  • Physical complaints and treatment
  • Emotional/Mental history and treatment
  • drug abuse, alcohol abuse, sexual abuse, emotional abuse
  • Prior emotional problems/stressors divulged to treating doctors
  • Similar complaints or symptom complexes
  • Any opportunity to allege hiding of records

Prior Claims History

For a defense lawyer it can be surprising that so many TBI claimants have prior injury claims. Such cynicism is necessary to defend cases, but it has to be substantially true to be useful. Think about your own practices. Can any of us truly say we had a TBI case involving a person with no claims history?

There are some, but those are the relatively rare, and good, cases. For the most part, you will be fighting over the significance (or lack thereof) of prior claims. An experienced claimant makes a defense lawyer and an insurance adjuster wary. Rather than pity the poor fortune of this injured person, we tend to suspect ulterior motives.

In every TBI case, look for the following to determine if you have an experienced claimant. The evaluate whether they may have an impact on the injuries claimed in the subject accident, or if they will impact the claimants ability as a witness.

  • Automobile accidents
    • nature of accidents
    • types of injury claims
    • settlement amounts
  • Workers Compensation claims
  • Atypical claims
  • Discovery developed in other suits/claims (new witnesses, doctors, IME's)

Chronology of Symptoms

The way the TBI symptoms develop is another area in which the parties may battle. Often, they are not recognized right away. It is only weeks or months later that the diagnosis of TBI arises. On behalf of the claimant there are several arguments to explain this delay in diagnosis. Of course, the defense will invariably argue that the development of symptoms is the result of suggestion by the providers or attorneys. To support this defense, the following items are examined to see if a more sinister angle can be ascribed to the delay.

  • Injuries reported at scene
  • Injuries reported in EMT/ambulance records
  • Emergency Room records
  • Acute phase treatment
  • Intervention of attorney
  • Practice Fields of initial providers
  • Referral chains

Doctors/Attorneys Involved

An attorney or insurance adjuster would not be doing their job if they didn't evaluate the parties involved aside from the injured claimant. We all know that doctors and lawyers have reputations. To ignore this is simply short-sighted. Reputations will necessarily impact settlement evaluations. They will also impact the type of defense which will be generated. The defense side typically will consider the following.

  • Reputations of treating doctors
  • Reputations of involved attorneys
  • Connections between doctors and lawyers
  • Referral chains
  • Disciplinary files or history

Additional Discovery

As always, important tidbits of information will come from non-medical records. In TBI cases, even the health care providers need to gather educational records so they can identify a probable baseline of functioning. We on the defense side often suspect certain doctors of doing a half-hearted job of investigating past educational functioning, so it is imperative to do a thoroughcollections of records. The records we like to have include:

  • All educational records, including standardized testing to compare to accomplishments
  • Employment records, including applications, job performance evaluations, and separation records
  • Military records
  • Social security disability applications, if any
  • Other health or disability insurance applications and records, if any

IME's are a special consideration in the TBI case. It is quite difficult to get an expert in the field willing to make the firm statements needed to convince a jury. More often, they frame their testimony in non-argumentative questions about the findings or testing of the claimants doctors.

If the defense is lucky enough to find an expert willing to make the strong, affirmative opposition testimony, that expert immediately becomes a target for the plaintiff's attorneys and plaintiff's doctors. We have seen several conservative doctors literally run out of town by an orchestrated effort of doctors and lawyers. (This only affirms for most conservative defense lawyers and adjusters that the fields of expertise usually encountered in TBI cases are loaded with frauds or non-scientific procedures.)

If the defense decides not to undertake an IME, it should be ready to retain an advisory expert. Since that witness is not going to testify, he/she is more likely to help formulate good cross-exam of the other side's witnesses. The advisory expert will also help you sort through the "pseudo-scientific mumbo-jumbo" used by the testifying witnesses.

Develop a Theme

Most lawyers begin developing a theme for the case as soon as they get hired. This is no different in TBI cases. It does not usually help a jury to do the shotgun approach, where you list off a bunch of disjointed disputes with the plaintiff's evidence. That is not to say that any areas of dispute should be ignored.

Rather, all of the areas of dispute should be organized into a theme to the extent possible. If some issues do not fit the theme, they can be raised as side issues so long as the jury still knows your primary theme.

If the TBI is the primary injury, then the theme will probably present itself as you are gathering discovery. Don't be afraid to change your focus if discovery uncovers a more persuasive argument. When thinking about the them, keep the following in mind.

  • Start early in the process, but be willing to change focus
  • What is the weak link, i.e., what should be attacked
    • Claimant
    • Primary Doctor
    • Attorney
    • The Test Results
    • Testing Itself (Is this medicine, or science, or hocus-pocus?)
    • Inconsistent History
    • Prior History

Trial

Your first thought maybe "why should I tell all my secrets? Shouldn't I leave some things unsaid?" Of course, after one or two trials, there really aren't any secrets in our profession. The trial should be a recitation of the defense theme of the case. If you can get the jury to keep an open mind, and to piece together your theme of the case through the cross-exam of plaintiff's witnesses, you will have accomplished 75% of your goal. The things a defense lawyer tries to get during trial include the following.

  • Admissions by plaintiffs experts that fit defendant's theory
  • Admissions by the plaintiff of exaggeration, concealment, or misrepresentation
  • If plaintiff refuses to admit to the above, then use of exhibits to ram it down plaintiff's throat is even better
  • Create the impression that this is not scientific
  • Create the impression that there is a bias in the medical testimony and testing to find TBI when normal human variances would explain the tests
  • Convince the jury that even if there are some measurable deficits, they have no impact on plaintiffs normal functioning
  • Finally, suggest that greed and attorney intervention are really why the jury is being asked to give up its time.