Do not let the term “mild” fool you.  The effects of a “mild” traumatic brain injury (“TBI”) can be severe.  There are so many definitions of “mild TBI” that if you asked 10 neurologists you would receive 10 different responses.  But, the general consensus is a mild TBI is defined as the result of a forceful motion of the head or impact causing a brief change in mental status or a loss of consciousness for less than 30 minutes. These symptoms may not be noticed for days, weeks, or months after the incident; sometimes, even an MRI or CAT scan will show the brain suffered no trauma.  Fortunately, there are numerous tactics defense counsel can use when facing a claim for mild TBI.

Defense Strategies

First, it is important to build a timeline from the moment of the incident to present day.  You should focus on things like (1) noting the injuries plaintiff complained of after the incident (2) identifying when the plaintiff first began complaining of mild TBI (i.e. before or after the hiring of  a lawyer); (3) who the plaintiff told about the injury; and (4) what the plaintiff did in response to the injury.  If an ambulance took plaintiff away from the incident scene, pay close attention to see if plaintiff mentioned any head injury.

A wide body of research supports the medical finding that pre-existing medical conditions produce similar symptoms of mild TBI such as prior head injuries, alcohol abuse, drug abuse, or mental illness.  So it is vital to obtain pre-existing medical records and the identities of prior treating medical providers.  Prior complaints of headaches, memory loss, confusion, depression, and the inability to concentrate may be related to a prior trauma.

Pre- and post-incident academic and employment records should be obtained. This information will assist in establishing whether other stressors could be causing complaints of plaintiff’s mild TBI. It will also assist in assessing what a plaintiff’s pre- and post-cognitive condition was. A plaintiff who had been receiving stellar grades prior to an incident, who after the incident began to receive low marks, would be more believable to a jury.

Take the deposition of lifestyle witness. These are witnesses such as a plaintiff’s mother, father, spouse, sibling, coach, boss, and best friend who have known plaintiff both pre and post incident. Plaintiff lawyers will attempt to use these witnesses to show plaintiff’s pre and post incident cognitive condition. Plaintiff lawyers may also try and paint a picture their client is “getting by” and then use the lifestyle witnesses to paint a picture of a now forgetful, confused, or depressed plaintiff.

Obtain a copy of all brain scans and testing performed both before and after the incident. Request all raw data from all tests. Hire a radiologist or neuroradiologist to review the scans to identify any pre-existing issues and to assess the severity of what is depicted on the scans.

In addition to a radiologist or neuroradiologist, retain a neurologist to diagnose the nature and extent of the alleged mild TBI. Have the neurologist perform an independent medical examination on plaintiff. A biomechanical expert may also be needed to opine as to whether the force of the incident was sufficient to cause injury. In cases involving claims where a plaintiff’s personality, mood, demeanor, and activities changed because of the incident, retain a neuropsychologist who can perform cognitive tests on plaintiff to assess whether their claims are responsible.

Conclusion

Defending a mild TBI case can be complex. A proper timeline, with detailed discovery requests, will assist in evaluating the merits of an alleged TBI. The retention of the correct expert witnesses is vital in assessing plaintiff’s TBI claims and whether the force exerted in the subject incident was sufficient enough as to cause a mild TBI.

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