News & Events:

ADDITIONAL EXPERTS BEING USED IN TBI CLAIMS

June 26, 2014

We are seeing a dramatic increase in Plaintiff's claims for mild traumatic brain injury (TBI).  Many of these cases are being supported by the use of expert witnesses not usually brought into play in the past.

An example of this trend is seen in a worrying verdict rendered by a California jury recently.  In this case, an 80 year old Plaintiff hit her head on the steering wheel in a low impact collision.  Plaintiff called a physical medicine specialist and a registered nurse, but no neurologist, neuro-psychologist or neuro-radiologist was consulted.  Plaintiff’s counsel focused on this to create doubt and won a verdict for a minor TBI of over $1.5 Million.
 
In the past,  the standards of no loss of consciousness and a normal Glasgow Coma Scale would have been barriers to claiming mild TBI.  This is no longer the case.

Traditionally defense counsel has retained a neurologist and a neuro-psychologist in working up the defense of TBI claims.  Now a very capable neuro-radiologist is frequently necessary as well.

In addition, MRI imaging is evolving.  What was common and standard up until three or four years ago is changing.  Gradient Recalled Echo Imaging (GRE MRI) is being supplanted frequently by Susceptibility Weighted Imaging (SWI) MRI technology.

Sometimes the SWI imaging can create false-positive results, or "show too much".  Our office had a case recently in which the Plaintiff relied upon a neuro-radiologist in Southern California to claim that the SWI image showed three lesions that could not be seen in GRE imaging, providing the basis for a mild TBI claim.

Our defense neuro-radiologist was able to basically defeat the plaintiff's claim with a knowledgeable explanation that the SWI image that the neuro-radiologist relied upon could be interpreted in several different ways, only one of which would indicate evidence of lesions.  Additionally, the defense neuro-radiologist was able to opine that the plaintiff's age and physical condition (including hypertension and diabetes) could very well explain the findings on the SWI MRI.

It is very likely that the SWI imaging is going to lead to an increase in "false positives".

Defense counsel need to be attuned to plaintiff counsel's skillful use of SWI imaging and retention of friendly neuro-radiologists to substantially advance claims of "objective" evidence of traumatic brain injury.  Unfortunately, this expanding use of Experts is likely to continue to rise.

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Author

James D. Emerson
James D. Emerson

Practice Area

  • Personal Injury Claims & Litigation
  • Motor Vehicle