Mild Traumatic Brain Injury: Proving the “Invisible” Injury

Posted in Injury Law

Mild traumatic brain injury is defined as traumatically induced physiological disruption of brain function as manifested by the loss of consciousness, memory loss, altered mental status (dazed, disoriented, or confused), OR a focal neurological deficit.   

Often times, however, at the time of the injury we see no loss of consciousness, or a negative hospital evaluation, no documented complaints, and no contemporaneous injury or damage. Further, the diagnostic test results, such as X-rays, CT Scans, MRIs, and EEGs, are normal. So, how do we prove this “invisible” injury?                 

Notwithstanding the negative hospital findings and test results, the mildly brain injured person continues to experience some of the following symptoms:

  • Headaches
  • Inability to speak/understand clearly
  • Concentration and/or attention issues
  • Reading issues
  • Unusual fatigue
  • Inability to function in noisy environments
  • Inability to work or perform schoolwork
  • Inability to see clearly
  • Smell issues
  • Irritability, hopelessness and depression
  • Inability to exercise good judgment
  • Organization difficulties
  • Dizziness
  • Antisocial traits

In order to treat these symptoms (as well as prove the existence of this “invisible” injury), the brain injured person should obtain comprehensive evaluations performed by a medical doctor including a neurologist or neuro-psychiatrist. Further, to confirm and prove the existence of any cognitive deficiencies, neuro-psychological testing should be performed. Other objective diagnostic tests of the brain, such as PET and/or Spect scans, may also be obtained. Finally, appropriate referrals should be made to other specialists such as a neuro-opthomalogist or neuro-optomitrist (for vision problems) and an ontolaryngologist (for balance or dizziness problems).

While all of the treatment and diagnostic test records should always be collected and marshaled for litigation, “baseline” evidence should also be obtained. “Baseline” evidence is any information that reflects the injured person’s cognitive functioning before the traumatic injury. This includes school records, employment reviews, writing samples, etc. Further, credible lay witnesses, such as supervisors and/or co-workers, should be developed to testify at trial to the brain injured person’s cognitive functioning both before and after the trauma.

In additional to calling the treating physicians to testify at trial, other experts may also be retained to testify. These include a neuro-radiologist (a sub-specialist trained and focused on the diagnosis and characterization of the central and peripheral nervous system) and a vocational-economist (an expert with respect to future economic loss).