2014

Has Your Plaintiffs' Mild Brain Injuries Gone Undetected? What the NFL Concussion Litigation means for PI

NEW YORK, Sept. 24, 2013 /PRNewswire/ -- MDL No. 2323 – the NFL Players' Concussion Litigation has reached settlement with a degree of controversy. The premise of liability and the extent to which the NFL owed its players a duty to warn amid now decades of private medical research, was likely one of the most difficult and publicized TBI litigations in recent years.  While the league is positioned to carry on 'business as usual' this season, it is disappointing not to see the claims of the former NFL players tested at trial with a jury.

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The term "traumatic brain injury" (TBI) covers a wide range of severity.  Less obvious and more difficult to diagnose and prove are mild traumatic brain injuries (mTBIs), characterized by short and mild interruptions of normal brain activity and no change to normal mental status after the injury – commonly called concussions.  An obvious risk to participants of the game of football and other contact sports, but sometimes a not so obvious a risk in personal injury cases.  Attorneys well versed in MVA litigation have made this consideration for years in their cases, but client intake for other case types should also look for signs of mTBI in clients.  Research dedicated to mTBI in the last decade has lead the medical community to increase concern for mTBI – improving both methods and technology for diagnosing mTBI that many juries may not be aware of.  While medical care and securing an expert witness for an mTBI case can be expensive, solutions for both attorneys and plaintiffs exist to make proving an mTBI claim more realistic.

FINANCING CASE COSTS

Case Funding offers law firms many flexible options for financing case costs for mTBI cases and other types of PI cases.  Funds can be used for any service used to mount a successful mTBI action – including video presentation services, securing the right experts and medical summaries. Read more about loan programs for attorneys here.

FINANCING MEDICAL CARE FOR THE UNINSURED

For mTBI plaintiffs without sufficient medical insurance, securing neurological care can be very financially daunting. Case Funding offers two programs that can help plaintiffs secure the care they need and strengthen their mTBI claim. With Medical Lien/LOP purchasing, Case Funding will work with a plaintiff's medical providers to secure a plan of care and medical service upfront. Our Plaintiff Advance program can also assist plaintiffs make up for time away from work while they undergo the treatment necessary to recover from their injuries and prove their claim. Read more about solutions for plaintiffs here.

mTBI and TBI Basics

mTBI often goes undiagnosed by ER doctors, so it is imperative to get a timely second opinion from a qualified expert if you suspect a client may have suffered a mTBI.  Not the easiest task if a client is received many days after the injury, but if documented quickly enough, could be crucial in building a client's case.  Common mTBI symptoms include loss of consciousness, temporary confusion or disorientation, and brief memory loss.  More common symptoms, like headaches, fatigue, dizziness, and lack of concentration can bolster a mTBI claim if there was also altered consciousness.  Severe traumatic brain injuries are often more obvious, with clear symptoms traditionally associated with brain injury such as severely reduced mental ability or dementia.  The master complaint for the NFL Players' litigation sought to show that persons who sustain a mTBI, are up to four times more likely to sustain a second injury and exacerbate the first. The long term effects associated with brain injury include increased risks for depression, PTSD, dementia, recurrent headaches, reduced cognitive function and more. One recent medical study (de Beaumont, L.) even found patients to have symptoms 30 years after the initial injury and concluded that approximately 15% of patients who suffer even a single mTBI could have longstanding health consequences!

Any impact to the head can cause a TBI, but impacts to other parts of the body that cause sudden acceleration or deceleration of the head can cause Mild TBIs.  There are also cases where TBI was found due to an incorrect prescription that caused brain damage.  TBIs can manifest themselves  in a number of symptoms including :

  • Recurring Headaches or Balance Problems
  • Lack of Concentration or Understanding
  • Sleep Disorder or Chronic Fatigue
  • Sensory Perceptions
  • Alteration of Temper, Mood, or Depression
  • Inability to Work, Read, or Organize Tasks
  • Questionable Judgment
  • Altered Social Interaction

The Potential Long-Term Effects of a Mild Brain Injury

Mild traumatic brain injuries (mTBI) don't seem very serious in many cases.  After momentary unconsciousness or disorientation, people will often seem to recover after a short rest.  Even "mild" brain injuries can have effects that are not immediately apparent, and linger for months after the accident.  While the mechanisms, effects, and best treatments for mTBI are not completely understood, recent attention to the problem consistently brings new insights and hope for injured people.

Mild traumatic brain injury has been defined as a disruption of brain function with any of the four following manifestations.

  1. Any loss of consciousness less than 30 minutes;
  2. Any loss of memory around the moment of trauma, and amnesia lasting less than 24 hours;
  3. Any alteration in mental state at the time of the accident;
  4. Focal neurological deficits

It is also important to know that mTBI does not require direct impact to the head.  Sudden, rapid movement can also cause mTBI when the brain moves within the skull, and researchers who study mTBI have found that mTBI can cause neurons to move within the brain, which disrupts their ability to transmit nerve impulses.

Contrary to the outward appearance of quick, complete recovery in many mTBI incidents, 10-20% of mTBI victims have symptoms of their brain injury for over a year after the incident, and research has shown evidence of brain atrophy up to a year after a single mTBI event.  In another study people tested a year after experiencing a mTBI performed worse than a control group in tests of cognitive ability. Some mTBI symptoms have been compared to the beginnings of Alzheimer's disease, including sleep disruption, which can in turn affect many facets of brain function.

The injured person, friends, and family may fail to correctly attribute the effects of mTBI, because symptoms do not always develop immediately, and because many symptoms can be attributed to other causes.  Dizziness, headaches, sleep problems, fatigue, lack of concentration & attention, irritability, and emotional stress are all potential symptoms of mTBI that are easily ignored or attributed to other causes.  It is important for personal injury attorneys to be aware of the possibility of mTBI in many different kinds of cases, particularly car accidents, which are the second leading cause of TBI in the US, behind falls.

Informing the judge and jury of the facts and long-term effects of mTBI is equally important.  Advances in neurophysiology happen faster than most people can hope to keep up with, and many people have longstanding misconceptions about the nature, effects, and duration of mTBI's.  Careful examination and cross-examination of experts will inform the fact-finder of the truth about mTBI and its effects on patients.

Proving a Mild Traumatic Brain Injury

Proving a traumatic brain injury (TBI) to a jury can be difficult, particularly with mild TBI (mTBI) when the symptoms and effects are not extreme, and the jury may be skeptical of an injury that is not readily apparent.

Updates and Advancements in Medical Diagnosis and Categorization: The Diagnostic and Statistical Manual of Mental Disorders (DSM) made significant updates and changes to its 5th edition published in May of 2013 to expand upon and include definitions for mild neurocognitive disorder.  The DSM is one of the most readily accepted manuals in both the legal and medical communities, and the inclusion of mTBI diagnosis and treatment is a major advantage in validated a mTBI claim for a client.  mTBI's are often difficult to detect with physical tests like MRIs and CT scans, and are better detected through functional cognitive examination.  It is important to think in terms of changes to lifestyle and activities for the plaintiff.  What could she do before that she cannot do now?  What has become more difficult or time consuming?  Assessing these changes from the perspective of both the plaintiff and others is important.  Not only does it lend credibility when others can confirm changes in ability, but victims of TBIs are not always aware of their new limitations and disabilities and may claim to have no problems where problems exist.  The testimony of people close to the plaintiff can help discover and prove TBI related injuries.

Expanding the knowledge of the Jury: It is important to define TBI with the jury, and dispel misconceptions.  People can suffer TBI without losing consciousness and without a direct blow to the head due to the movement of the brain within the skull.  TBI symptoms don't always develop immediately; they can take days to manifest as everyday mental challenges are reintroduced to the victim.  MRIs and CT scans don't always detect TBIs.  Emergency room staff can fail to diagnose TBI because it is sometimes difficult to diagnose, and they are often focused on other medical issues.  Informing the jury about the facts of mTBI is one of the most important things you can do with your experts and with the opposition's experts as well.

Utilizing the Medical Care of the Plaintiff: Treating physicians are also important sources of information about an individual victim of TBI.  They can confirm the existence of certain disabilities and problems and can explain how brain injuries happen and affect functional ability.  If there is physical evidence of a TBI from a scan or test, a treating physician can refer to and explain it as well.

Case Funding has assisted attorneys as much as quadruple settlement amounts by enabling them to hire the best experts and by financing the medical monitoring (exams and rehabilitation) for clients/patients – establishing a defined medical history that will hold in court in as few as three months of treatment.

Neuropsychologists are experts in brain function and cognitive ability.  They can test injured plaintiffs for specific functional and behavioral problems and explain the impact of these impairments on normal life and work activities.  They can also use background materials and information to determine the plaintiff's abilities before the accident and assess the severity and impact of a TBI and the changes it has caused in the plaintiff.

Getting to know the Technology for Diagnosis: A major difficulty of proving mTBI is the difficulty of obtaining a nice clear image of a physical problem in the brain.  mTBI is defined functionally, in terms of symptoms and effects, not in terms of the underlying physical and biological causes, so there is no guarantee that there will be any detectable physical cause.  Improvements in medical imaging technology make this less and less true every day.  Advanced imaging techniques can make the physical effects of mTBI's in the brain easily visible in some cases, making them an invaluable asset to proving your client's injuries in court.  Imaging tests currently available include:

Functional MRI (fMRI) Oxygenated blood and deoxygenated blood have different magnetic properties that allow MRI machines to detect changes in blood oxygenation, in a technique called Blood Oxygenation Level Dependent (BOLD) imaging.  When specific regions of the brain are used the body responds by sending more blood to those areas to fuel their activity.  This increased blood flow can be detected with fMRI.  Researchers can use this information to see which regions of the brain are being used at any particular moment, and has helped determine which parts of the brain are responsible for particular functions and activities.  Typically the patient will perform a simple task, and doctors will see which brain areas receive blood when that task is performed.

Resting State functional MRI (RS-fMRI) RS-fMRI uses the same technology as fMRI, but is used to analyze a resting brain instead of a brain performing a task.  Brains are never completely at rest, and this technique can reveal connections between different brain regions.  This can be used to detect neurological disorders that alter the connectivity of brain regions, including mTBI in some cases.  There is some risk of adverse reactions to contrast agents, but these are rare for most approved agents.

Contrast MRI MRIs can be much more accurate and sensitive by adding contrast agents to the blood, stomach/intestines, or particular organs.  Contrast agents alter the magnetic properties of the body, changing how it reacts to the magnetic field in an MRI machine.  This technique can reveal otherwise hidden problems, or greatly increase the sensitivity and information available about a known problem.

dMRI & Diffusion Tensor Imaging
Diffusion MRI (dMRI) measures the rate and direction of water diffusion in the body.  Diffusion is the natural process by which molecules move randomly.  In a neutral environment, like a glass of water, diffusion will be equal in all directions, but some conditions can cause more diffusion in a certain direction.  Diffusion tensor imaging (DTI) is a type of dMRI that detects the direction of water diffusion in a particular location.  Water diffuses better along nerve fibers, and slower across nerve fibers, so DTI scans of the brain can show the direction of nerve fibers in white matter.  In healthy brains nerves in white matter are predominantly parallel, causing greater diffusion in that direction.  Research has shown that the nerves in white matter of mTBI patients are arranged more randomly than in the white matter of uninjured people, and has correlated this with decreased mental performance.

CT Scans CT scanners use a series of x-ray images to construct a 3-D image of the body.  CT scans are very well suited to examining bony structures, and can detect dramatic problems with soft tissue, but MRIs are much more sensitive to soft tissue injuries.  CT scans are also much cheaper and faster than MRIs.

Positron Emission Tomography In a PET scan the patient is first injected with a radioactive version of a bodily chemical, called a tracer.  A machine detects the radiation given off by the radioactive tracer, which shows where the tracer is being gathered in the body.  For example, if a radioactive form of glucose is used, the PET scan will show which tissues are using the most glucose.  These scans can help to show brain activity, and are often used in conjunction with other scanning techniques.

Awards and Settlements for Brain Injury Cases

Recent award valuation studies have shown that if the legal team can successfully prove a claim of mTBI in a plaintiff, awards can range between $87K-$1.6M, with 34% of plaintiffs awarded over $1M. Awards for mTBI have been steadily increasing over the past decade, dovetailing the proliferation of medical research dedicated to mTBI. Reported settlements over the past decade have fallen within a range of $77K - $1.1M.

Non-economic damages are also very important for TBI victims.  Even where there is not significant pain and suffering from the accident, there may be significant loss of enjoyment of life in the future as a result of inability to enjoy or perform hobbies and other favorite activities, and generalized loss of enjoyment of life due to mental impairment. As in the case of the recent NFL litigation, the risk of symptom or condition development in the future should be explored with juries and experts.

Getting a client into an expert rehabilitation facility can be a watershed moment for a TBI case.  Facilities that specialize in TBI victims provide the best care and get your client the best outcomes by dramatically improving their functional ability and quality of life.  They can also get the best outcomes for your client's case by providing detailed medical records by experts who can track the progress of your client and demonstrate the extent of injury and disability.  Assessments of reading, math, problem solving, and social skills can also form the basis for other experts to estimate the future earning potential and care needs for the plaintiff.

These facilities are expensive, and have limited spaces for patients.  Case Funding has helped plaintiffs secure treatment in premier brain injury treatment and recovery centers.  If up-front, cash payment is required, preferred, or discounted at a treatment center or hospital, Case Funding can provide an advance to secure treatment at those facilities, and has negotiated placement and pricing for clients at leading brain injury treatment centers.  Case Funding also purchases letters of protection, and can make arrangements to purchase the medical liens for these types of treatment plans.

In one case, after being offered a $2 million settlement for his brain injury, one plaintiff was able to secure an $8 million settlement after Case Funding helped him pay for rehabilitation.  This treatment established the extent of his injuries and the need for lifetime treatment and care, and improved his condition significantly.  This new information and evidence pushed the defense to quadruple their settlement offer.

This information is informational, and is not intended as legal advice.  Attorneys and clients who are concerned with TBI should contact expert attorneys and physicians who are experienced with TBIs.

Sources


  • acrm.org/pdf/TBIDef_English_Oct2010.pdf
  • uphs.upenn.edu/news/News_Releases/2010/02/mild-traumatic-brain-injury/
  • sciencedaily.com/releases/2013/03/130312092642.htm
  • frontiersin.org/Human_Neuroscience/10.3389/fnhum.2013.00030/abstract
  • cdc.gov/traumaticbraininjury/pdf/tbi_blue_book_externalcause.pdf
  • rsna.org/timssnet/media/pressreleases/pr_target.cfm?ID=675
  • neurography.com/about-mr-neurography/84-diffusion-tensor-imaging-now-available
  • westchestermedicalcenter.com/neuroradiology-imaging
  • pro. psychcentral.com/2013/dsm-5-changes-neurocognitive-disorders/004418.html#
  • asha.org/uploadedFiles/June-2011-DSM-V-Development-Comments.pdf
  • ceams-carsm.ca/en/louis.html
  • psychiatry.org/dsm5
  • commons. pacificu.edu/cgi/viewcontent.cgi?article=1203&context=pa
  • jpml.uscourts.gov/sites/jpml/files/MDL-2323-Tag-Along_Transfer-07-12.pdf
  • medscape.com/viewarticle/553967
  • nflconcussionlitigation.com/wp-content/uploads/2012/01/NFL-Master-Complaint1.pdf
  • 2011 WL 5528456: Jury Verdict Research Series: Personal Injury Valuation Handbook: Basic Injury Values for Claims of Mild and Moderate Brain Injuries

For more information, visit www.casefunding.com or call Leon Branam at 888 796-7594.

SOURCE Case Funding Inc.



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