Most trial lawyers have had cases involving “soft tissue” injuries. We all know the frustration in trying to communicate the impact of these injuries to others. Some believe that these injuries are fabricated or that the clients are “malingerers.” This results in part from the lack of objective evidence and the fact that such injuries are usually diagnoses of exclusion. Frequently, soft tissue cases are discounted or dismissed as “psychiatric,” and not enough careful consideration is given to evaluating them before a settlement is effected.
Most of us know that soft-tissue injuries are generally thought to be caused by the tearing of muscles, blood vessels and associated nerve fibers. What we often overlook is where the anatomical injuries actually begin or end. Infrequently considered by both lawyers and doctors is the extent of any closed head or brain injuries which arise from the underlying traumatic event.
Studies indicate that there are approximately eight million head injuries each year in the United States, with varying levels of severity. In so-called “whiplash” injuries involving acceleration or deceleration which are typically seen inautomobile accident cases, the damage can occur as a result of the “coup and contracoup” force, when the brain continues to move inside the skull after the head stops. This effect may occur, for example, when the head strikes the windshield and stops but the brain continues to move forward, striking the cranium wall and injuring the frontal and temporal lobes.
It is also widely accepted in the medical literature that this effect can occur even in the absence of a direct blow - caused by the shearing forces created as the body is thrown forward and back. In the process, critical nerve fibers and blood vessels of the brain may be torn and damaged. In more severe cases, swelling and internal bleeding may also occur. This phenomenon has been portrayed as being like the cracking of a whip, with the brain at the end.
The effects of a closed head injury may not appear for several days or weeks as it may take that long for swelling and hemorrhaging to start to compress brain tissue. Often, the victim will return home and to work after having been told by the emergency room physician that he or she could expect everything to be fine after a few days of rest. Because of the nature of the injury, the injured person may anticipate some temporary neck or back discomfort. He or she will not, however, expect the physical, cognitive and psychosocial problems that may develop, and which are typically associated with closed head injuries, including headaches, discoordination, sleep disturbance, depression, memory loss, difficulty with concentration and organization, fatigue, dizziness, nervousness, numbness, tinnitus, decrease in libido, irritability and other personality and social changes. Because many people may not connect such complaints with the original injury, they may not seek further medical treatment or, for many reasons, may be resistant to it. In fact, some may actually try to conceal and compensate for their problems.
Additionally, for similar reasons, some health care providers may fail to associate such late presenting complaints with the original injury. Such complaints may simply be dismissed as psychological and not physiological.
One reason for the lack of medical support in this area is the limited utility of traditional medical tests in diagnosing mild head injuries. Neurodiagnostic tests such as neurological exams, EEG, CT scan and MRI are often grossly normal in the face of the patient’s subjective complaints. They have limited use in showing the structural or functional changes underlying the kind of physical, cognitive and behavioral effects of injuries involving cerebral tissue damage and brain stem dysfunction. Often these kinds of cerebral changes can only be discovered by electron microscopy, a test usually not available outside the coroner’s office. Nevertheless, traditional neurodiagnostic tests should not be avoided as structural changes can sometimes be noted, particularly shortly after the initial trauma. In many instances these tests may provide valuable assistance in case assessment and in documentation of any gross physiological changes underlying the injury such as brain swelling intracranial hematoma, abnormal brain wave activity or other degenerative brain changes.
Of course, the lack of initial medical support may only increase the client’s level of frustration and injury. For that person, these problems often become a vicious cycle when spouse and other family members do not believe the extent of the injury. In such cases it may be up to the lawyer to take a more active role in intervening on behalf of the injured client. We should not lightly disregard a client whose subjective complaints have been dismissed and who is perceived as “strange,” hypochondriacal, or, worse yet, a “malingerer.” As legal advocates we must be prepared to recognize the types of physical, cognitive and psychosocial complaints described above which are typically associated with mild head injury cases.
When evaluating a client and diagnosing a case it is always important to find out all of the facts of the accident, with particular attention given to the specific mechanism of injury. What were the directions and speeds of the vehicles on impact? Did the client strike her head against anything? Was she thrown forward or back? What force was involved? Did she lose consciousness?
It is, of course, also important to document the early effects of injury and to obtain a complete history in order to fully understand how the injury has affected the client’s everyday functioning and her pre-accident strengths and weaknesses. Encourage the client to keep a diary to record his or her observations, limitations and feelings. Speak to family members and others who may have either witnessed the accident or observed behavioral changes in the client since the accident. You should also explore how the client’s injuries have affected family members and family life. It may also be helpful to talk with friends, co-workers, employers, teachers and others who can help establish the injury and its effects. Obtain specific examples and actual anecdotes.
Cases involving pre-existing psychological problems should also be completely explored. Studies have established that pre-existing psychological factors or other life stressors may impede the client’s return to the level of function he enjoyed before the accident. Cognitive limitations associated with the injury may also lessen the client’s ability to deal effectively with pre-existing psychological problems and cause further aggravation. Such predisposition should not deter you from pursuing a case when you have a true “eggshell” client whom the law will properly compensate. Even if the client had a pre-existing condition which made her more vulnerable to the injury than someone in good health, the tortfeasor may nevertheless be responsible for any injuries sustained. See Restatement (Second) of Torts Section 461.
If based upon the history taken and the observations made you suspect that the client has an underlying neuropsychological injury, you should arrange to have your client further evaluated. A neuropsychological work-up may prove invaluable to both your client’s case and future medical care.
Neuropsychologists are primarily concerned with measurement and diagnosis of the effects of brain damage. They can evaluate your client’s personality, behavior, sensory-motor skills, and intellectual functioning. Assessment is accomplished through observable behavior and by using individualized tests and widely accepted standardized test batteries.
The Hallstead-Reitan Neuropsychological Battery is perhaps the best known and most thoroughly validated neuropsychological battery for purposes of predicting brain damage or dysfunction. It consists of a number of different tests that may be employed by the clinician depending upon the case and her particular practice. The most frequently used tests include the Weschler Adult Intelligence Scale Revised (WAIS-R), which is used to test overall intellectual functioning, the Weschler Memory Scale Revised (WMS-R), which is designed to measure short and long term memory losses, and the Minnesota Multiphasic Personality Inventory (MMPI), which is the most widely used objective test to measure personality and behavioral traits, The Luria -Nebraska Neuropsychological Battery is also frequently used by clinicians for purposes of general patient assessment.
Such tests and others, including tests to discover sensory-perceptual, motor or problem-solving deficits, can be very valuable, because of their greater sensitivity in detecting changes in cerebral functioning, in aiding the clinician to understand the nature and extent of brain damage in a traumatic injury case. This is particularly true when the physiological evaluation through neurodiagnostic testing is not sufficient to detect the underlying organic causes of the physical, emotional and cognitive impairment.
The clinician’s input can serve many functions. First, the clinician can document whether the client’s complaint is genuine. There are, obviously, at least three potential causes for the persistence of problems: 1) a quest for secondary gain; 2) a psychological reaction to the injury (reactive depression); and 3) residual organic brain injury. Neuropsychological testing can help differentiate among these causes.
After establishing the genuineness of a complaint, the clinician can specifically identify the nature and extent of the patient’s problems. Is the person functioning differently than he was before the accident? If so, how? How have the injuries affected the client’s daily life? What can the client do and what is the client unable to do? The clinical neuropsychologist will be able to correlate specific areas of disruption in the client’s life with the objective data obtained, thereby demonstrating consistency and convergence. The clinician will also be able to help establish a prognosis for the client, which is, of course, essential to the medical-legal process. The clinician can also help in recommending appropriate treatments for the client, including coping and adaptation skills, psychotherapy, remedial reading, memory skills and others.
Testing should be repeated. Early testing is important to establish a baseline measure and to distinguish neuropathy from neurosis. Establishing a base-line will further assist the clinician in forming a prognosis as non-permanent injury will generally resolve itself within the first eighteen months.
The clinician will also be valuable in explaining the actual mechanism of injury to a jury in physical terms and in demonstrating the consistency between that mechanism of injury and any measured or observed deficits. For example, injury to the frontal lobe can typically cause changes in personality, abstract thinking ability and judgment and planning; injury to the temporal lobe, on the other hand, can cause changes in memory and sensory-perceptual abilities.
Critical to the clinical process, and one of the potential limitations inherent in this process, is the ability of the clinician to assess the client’s pre-injury level of functioning in order to make a valid comparison of pre- and post-injury status. Although there are obvious limitations in this task, including the lack of pre-injury data and the artificial environment of the clinician’s office, there are many tools available to the clinician. Of course, prior testing would be the most valuable, but such data is often unavailable. Comparison with age-matched peers will often provide an alternative basis for objective comparison. Discussion with family, friends, employers, and others will provide valuable historical information. Review of academic transcripts and other similar information will also be of assistance. The clinician can also match the client’s testing results against the known effects of the type of injury sustained to help establish the causal relationship between the accident and the reported areas of disruption in the client’s life.
The neuropsychologist can also assess pre-accident functioning by analyzing the various subtests contained within the neuropsychological battery. The subtests that measure long established learning and language abilities are relatively impervious to most minor head injuries. These subtests can be compared to other more common problem solving abilities and more immediate memory functions to help measure injury-caused deficits.
Neuropsychological and personality data can not only reflect the type and severity of specific behavioral and emotional impairment related to the underlying brain injury but can also document those psychological factors that may uniquely affect a client’s ability to recover from the mild head trauma. Again, this requires an analysis of the client’s prior level of functioning and psychological profile. Such tests as the MMPI can assist in this task by highlighting basic personality traits - such as hypochondriasis and hysteria - which may directly affect the prognosis. Again, we must keep in mind that the law recognizes the “eggshell” client who is entitled to be fully compensated.
Costs of neuropsychological evaluation may vary. In Maine, such an evaluation may cost between $500.00 and $1,000.00. In some cases, a less detailed initial screening may be sufficient and would only cost around $350.00.
Through objective documentation of an organic brain injury, the neuropsychologist will be able to assist a jury in understanding the nature and effect of that injury. By putting personality and test data into the context of an individual’s vocational, social and familial demands and aspirations, the clinician can assess the impact of the disability upon these important areas of the individual’s life. The neuropsychologist will be able to testify, for example, that there is actual organic brain injury, that there is real memory loss and diminished intellectual performance, and that the client is not malingering.
Depending upon the case, the client, of course, should be further assessed by other health care professionals and experts, including neurologists, psychiatrists, and vocational rehabilitation counselors. Again, the neurologist may be instrumental in doing the initial diagnostic workup and evaluation and in assisting in the neuropsychological referral. These two disciplines will often complement each other in the initial clinical input and at trial.
By establishing the organic basis for your client’s complaints, you can overcome the limitations and prejudices inherent in pure “psychological” cases. Only then will the client with a closed head injury be fully served.
- Silver, Yudofsky and Hales, “Neuropsychiatric Aspects of Traumatic Brain Injury,” Textbook of Neuropsychiatry (Hales and Yudofsky, ed. 1987, American Psychiatric Press, Inc.)
- Barth, Macciocchi and Giordani, “Neuropsychological Sequelae of Minor Head Injury,” Neurosurgery, Vol. 13, pp. 458-473, 1987.
- Cahn and Miller, “Closed head Injuries” Trial, April 1988.
- Forgette, Recognizing and Handling the So-called ‘Minor’ Head Injury Case,” National Head Injury Foundation, Inc.
- Gentilini, et al., Neuropsychological Evaluation of Mild Head Injury,” Journal of Neurology, Neurosurgery and Psychiatry, Vol. 48, pp. 137-140, 1985.
- Paschke and Much, Neuropsychological Evaluation in Traumatic Head Injury: A New Tool for Attorneys, Medical Trial Technique Quarterly (pp. 358-371, Vol. 34, 1988).
- Rimel, Gioirdani, Barth, Bull and Jare, “Disability Caused by Minor Head Injury,” Neurosurgery, Vol. 9, No. 3, 1981.
- Sbordone and Purisich, “Clinical Neuropsychological Medico-Legal Applications,” Trauma, 28:5:49, 28:6:61 and 29:1:17.
- Barth, Gideon, Sciara, Hulsey and Anchor, “Forensic Aspects of Mild Head Trauma,” Journal of Head Trauma Rehabilitation, Vol 1(2):63-70, 1986.