A traumatic brain injury lawyer is frequently faced with the challenge of proving this “hidden” injury. A TBI is a hidden injury because it is not readily visible, like a fracture or dislocation would be. In fact, injury victims with significant brain damage might have imaging, like a brain MRI or a head CT scan, that appears completely normal. Oftentimes, the only objective proof of organic brain damage is found on autopsy when a pathologist finds evidence of chronic traumatic encephalopathy (CTE) under a microscope.
Proving the Existence of a TBI
Proving the existence, nature, and extent of a TBI has been made even more difficult due to a cottage industry of defense experts who will exploit ambiguities in neuropsychological testing and the injury victim’s post-injury actions as the injured person attempts to resume a normal life while coping with intellectual, cognitive, and emotional abnormalities.
Neuropsychological testing has inherent limits, as the testing only shows abnormalities after the injury has occurred. No injury victim has pre-injury test results to which their post-injury test results can be compared. Neuropsychologists and neuropsychiatrists are left to compare abnormal results to societal norms in order to establish that the brain injury victim has cognitive, intellectual, or emotional deficits. The defense medical examiner will argue that the neuropsychologist has arbitrarily assigned the patient a “normal” pre-injury assessment without evidence to confirm that status. The defense medical examiner will also argue that the plaintiff’s neuropsychologist or neuropsychiatrist has misinterpreted or ignored test results while suggesting that the plaintiff is malingering, exaggerating, or faking their deficits.
The TBI Checklist
To combat the lack of objective test results to prove the existence of a traumatic brain injury at trial, a skilled traumatic brain injury lawyer will interview friends, family members, and coworkers of the plaintiff with the TBI in an effort to provide anecdotal evidence of the injured party’s preinjury and postinjury state. He or she might use the following traumatic brain injury checklist to assist in interviewing friends, family members and coworkers. Was there:
- Loss of consciousness
- Abnormal twitching
- Blurred vision
- Sleep disorders
- Memory Loss
- Bothered by noise
- Temperament changed
- Ambition changed
- Speech problems
- Diction affected
- Able to control emotions
- Math abilities
- Sexual dysfunction
- Ability to recall the events before and after the accident, including the accident itself
- Ability to recall numbers, symbols, etcetera (birthdays, phone numbers, and addresses)
- Have you observed any behavior by the victim which causes you concern?
Personal injury lawsuits that include a closed head injury resulting brain damage pose a significant challenge to a traumatic brain injury lawyer. Friends, family members, and coworkers can provide vital assistance in establishing the injured party’s condition before and after the personal injury. If you or someone you love was involved in an accident that resulted in a TBI, contact a brain injury lawyer, like a brain injury lawyer in Cleveland, OH, today.
Thanks to Mishkind Kulwiki Law for their insight into traumatic brain injuries.