Defenses to Mild Traumatic Brain Injury

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s topic focuses on brain injury victims and how to deal with insurance companies that try to minimize the injury.

We have in several other podcasts addressed traumatic brain injury cases or TBI.

In this podcast, we discuss several arguments we hear from insurance companies. While these defense arguments, on the surface, seem plausible, they have limited medical support. They are designed to mislead and confuse jurors.

One argument often voiced is that the injured party did not suffer a loss of consciousness; therefore, they could not have sustained a traumatic brain injury.

But there is a broad spectrum of injuries, and loss of consciousness is not necessary for a disturbance of brain function. Research indicates that nearly 90% of concussions do not involve loss of consciousness or LOC. High-powered MRI imaging studies often show brain injury where the patient remained conscious.

Low-powered CT scans and low-powered MRIs often miss brain structure injuries. If the patient is covered by Medicaid or Medicare, they will not receive the best MRI imaging available.

Regardless of what often inadequate brain imaging may show, a TBI may cause a related grouping of physical, cognitive, emotional, and sometimes sleep-related symptoms even when there is no loss of consciousness.

Another argument often voiced is that if there was no blow to the patient’s head, there could be no TBI. In reality, the force on the head may be indirect. A force to the body may accelerate the head forward and backward quickly. Or may result in quick side-to-side movement. The brain is much like a sack of water inside the skull; rapid front-to-back or side-to-side movement can result in injury.

An additional argument is that no such injury occurred if the emergency room doctor did not diagnose traumatic brain injury. But we know that emergency room personnel miss TBI injuries as much as 50 percent of the time. Again, if you are on Medicaid, the odds are higher that your injury will be overlooked.

Insurance companies disputing a claim for mild traumatic brain injury occasionally argue that symptoms always resolve over time. But this is simply not the case. Medical literature does not support the conclusion that TBI symptoms resolve in all cases.

Keep in mind that a patient with a TBI, particularly one that involves a relatively minor head injury, may appear normal, claim to be normal, and perform well on tests. Nevertheless, these patients often suffer potential symptoms, including indecisiveness, an inability to plan or anticipate, and a marked inclination to make errors of omission.

We would advise that every parent have their child who has suffered a TBI get screened for the hidden injury. Such injury can often be documented through careful, objective neuropsychological testing.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com.