Tag: Prosecuting Traumatic Brain Injury Case

I am shortly scheduled to try a case for a woman who sustained a mild traumatic brain injury. In preparing, the issue arose as to whether she should be present in the courtroom during the entire trial, or, only when she is called to testify. My practice, as a general rule, is to only have the client in the courtroom when he or she is called to testify.

When people are called as jurors, they come to court with preconceived ideas and expectations. When jurors hear that they are going to be called upon to decide a case for an individual who has suffered a traumatic brain injury, their perception is that the plaintiff suffers with severe mental and motor deficits. The jurors expect to see a person who has difficulty speaking and walking. They are certainly not prepared to see a person with a mild traumatic brain injury that looks normal and in most situations, while on the witness stand, sounds normal. When a person with acquired traumatic brain injury sits in the courtroom day after day, the jury gets used to seeing a person who appears and acts very normal. My preference is to only have the plaintiff in the courtroom to testify.

Remember that like all the rules, there are exceptions and trials are dynamic, not static events, requiring the attorney to adapt to what is taking place during the trial.

The majority of TBI cases, from a medical standpoint as well as from a legal standpoint, involve “mild” TBI. Unfortunately, this term suggests, at least to those unfamiliar with brain injuries, that the injury is minor or trivial.

Addressing the confusion created by the nomenclature used within the field of neurology, Nathan Zasler, M.D., director of brain injury rehabilitation programs at Sheltering Arms Hospital in Richmond, Virginia, aptly cautions professionals:

“From both clinical and research perspectives, one of the major problems faced by rehabilitation professionals is inconsistent nomenclature…Modifiers such as subtle, minimal, and minor are to be discouraged. Practitioners must understand that the term “mild” describes only the initial insult relative to the degree of neurological severity; there may be no correlation with the degree of short-term or long-term impairment or functional disability.” Read More about Use of Medical Treatises – Terms (Severe, Moderate, Mild)

In an earlier post I discussed how the results of neuropsychological tests can impact the evaluation of a brain injury. Recently, the defense counsel in one of my cases filed a motion to dismiss my client’s complaint asserting that there was no objective proof of injury. My client had sustained a mild traumatic brain injury and was experiencing continued residual problems with attention and concentration. Read More about Brain injuries, the courts and neuropsychological testing

For the neurolaw attorney (the attorney whose practice focuses on representing persons with TBI), the difficulty and challenge presented by these cases become readily apparent. All too often, the plaintiff did not report a loss of consciousness, nor were there any positive findings in neurological examinations. Hospitalization may never have occurred or may have been markedly brief. There may be no objective neurodiagnostic studies, such as an MRI, CT scan, or EEGs, to demonstrate to the jury the presence of a traumatically induced brain injury. Read More about Use of Medical Treatises – Debunking Myths, Correcting Misconceptions

The trial attorney representing a client in a traumatic brain injury case must master the scientific and medical literature addressing this unique injury. Only then can the attorney hope to effectively wield the often con- fusing terminology by finding definitions and criteria that the defense cannot credibly refute. Read More about Use of Medical Treatises in the Traumatic Brain Injury Case – Intro