Brain Injury Lawyer Cleveland Ohio

Neurocognitive deficits caused by a traumatic brain injury (TBI) remain one of the most challenging injuries to prove by personal injury lawyers.  Often, mild TBIs are not diagnosed by emergency personnel, who are more focused on more obvious injuries.  PCPs may miss the diagnosis on followup unless the patient complains of a physical manifestation such as tinnitus, dizziness, loss of hearing or visual impairment.  In some cases, the injury victim’s lawyer, like a brain injury lawyer Cleveland, OH trusts from Mishkind Kulwicki Law Co, L.P.A., is the first professional to suspect brain damage, which fact is used against the injured party.

In the recent past, there were no objective test to confirm the presence of a TBI.  Lawyers were left with the vagaries of neuropsychological testing to prove their case.  In the past few years, however, some exciting technologies have been developed that increase the likelihood of making objective proof of injury available for litigation.  In my last update, 2019 Update on Mild Traumatic Brain Injury Claims in 2019 Ohio Quarterly, discussed the development of tau radiotracers and FDG-PET imaging, which showed promise.  More recently, researchers using Diffusion Tensor Magnetic Resonance Imaging (DT-MRI) were able to detect areas of brain injury in U.S. military veterans up to a year following injury.  The DT-MRI evaluates water movement within the brain, reflecting brain cells that are not functioning properly.  Diffusion Tensor Imaging can be used to track nerve fibers to measure deficits in white matter.  The resulting “tractography” is being used to show objective evidence of traumatic brain injury

Another promising test for mild TBI is a blood test that measures plasma-based metabolomic biomarkers.  Researchers tested athletes after suffering a concussion and found elevations in metabolites when compared with non-concussed controls.[1]  These blood assays continue to be developed, but are not being used clinically at this time.

Another area of interest is damages.  TBI affects the whole person, meaning that work, social and familial relationships suffer.  Beyond loss of earning capacity and non-economic losses, such as emotional distress and loss of enjoyment of life, TBI victims are prone to significant long-term medical and life care expenses.  In addition to those cited in my last update, several new studies link TBI to an increased risk of dementia.[2]  The JAMA study included 178,779 VA patients who were diagnosed with TBI.  It showed that there was a more than two-fold increase in the risk of dementia even in patients who did not have a documented loss of consciousness.  Another study showed that one in six adults over the age of 65 years develop dementia after a concussion.[3]

The repercussions of a TBI-dementia link are huge.  The cost of caring for patients with dementia is monumental.  In 2018, the Alzheimers Association estimated that the lifetime costs of dementia care is $341,840.00.  Detail-oriented life care planners will show that the actual cost, before collateral sources, is significantly higher. Capturing this element of damages in litigation will be challenging.  Since the prevailing medical literature does not prove that a TBI victim is “more likely than not” to develop dementia, courts are likely to conclude that such damages are not “reasonably certain,” and therefore, not recoverable.  However, stress and anxiety caused by this potential diagnosis and its costs may be captured as noneconomic losses.

In addition to dementia, TBI is causally related to other devastating complications.  For example, studies have linked an increased rate of suicide to TBI.[4]  None of these studies suggest that the victim of TBI will likely commit suicide.  However, expert testimony may establish a causal connection in the right case when a victim of TBI does commit suicide, thereby forming the basis for a wrongful death lawsuit.

Another study reports that TBI is associated with sexual dysfunction in women.[5]  The incidence of TBI among women is fast-growing.  The authors concluded that “women who have a concussion have a significantly increased risk of sexual dysfunction” compared to women who suffer other types of injuries.

Some hired gun defense medical examiners take the position that TBI is a self-limiting condition that universally recovers, particularly when caused by a single insult to the brain.  This line of reasoning has been directly contradicted by a substantial body of literature.[6]  In fact, some studies show that brain damage may occur even when microtrauma to the brain occurs without concussion.[7]<.sup>

In addition to the foregoing, studies have led to some potential treatments for TBI.  For example, one study showed that light aerobic exercise may help adolescents recover from sports-related concussions.[8]  Another study showed that tranexamic acid, an antifibrinolytic, reduced the risk of head injury-related death in patients with mild-to-moderate TBI.[9]  Finally, in 2018, the Centers for Disease Control published guidelines for treating pediatric patients who sustain a mild traumatic brain injury.[10]  These guidelines address emotional support, return to school guidelines and management of posttraumatic headaches, sleep and cognitive impairment.  While these treatments and guidelines are a step in the right direction, there remains no known cure for traumatic brain injury.

Mild TBI cases continue to post challenges for the personal injury lawyer.  While a number of advances have been made, probably due to increased publicity brought to TBI by athletes and military combatants, a cure remains elusive.

By David A. Kulwicki, Esq.

[1] Fiandaca, et al. (2018), Plasma Metabolomic Biomarkers Accurately Classify Acute Mild Traumatic Brain Injury From Controls.  PLoS ONE 13(4): e0195318.
[2] Barnes, et al. (2018), Association of Mild Traumatic Brain Injury With and Without Loss of Consciousness With Dementia in U.S. Military Veterans.  JAMA Neurology, DOI:10.1001/JAMANeurol.2018.0815; Nordstrom, et al. (2018) Traumatic Brain Injury and the Risk of Dementia Diagnosis: a Nationwide Cohort Study, PLOS Med 15(1): e1002496. 
[3] Redelmeier, et al. (2019), Statins and Risk of Dementia Following Concussion, JAMA Neurology.
[4] Madsen, et al. (2018), Association Between Traumatic Brain Injury And Risk Of Suicide, JAMA, 320(6): 580-588; Iverson (2015), Suicide In Chronic Traumatic Encephalopathy,
[5] Anto-Ocrah, et al. (2019), Risk Of Female Sexual Dysfunction Following Concussion In Women Of Reproductive Age, Brain Injury, doi:10.1080/02699052.2019.1644377.
[6] King, et al, Permanent Post-Concussion Symptoms After Mild Head Injury, Brain Injury. May 2011, 25(5): 462-470; Nelson et al, Recovery After Mild Traumatic Brain Injury in Patients Presenting to US Level I Trauma Centers, JAMA Neurol.  Doi: 10.100/jamaneurol.2019.1313; The Late Contributions of Repetitive Head Impacts and TBI to Depression Symptoms and Cognition, Neurology (June 26, 2020); Conceptualizing Brain Injury as a Chronic Disease, Brain Injury Association of America (March, 2009); Victoroff, et al, Concussions and Traumatic Encephalopathy, 2019.
[7] Higgins, et al, Brain Network Disruption in Whiplash, AJNR (June, 2020); Manning, et al, Longitudinal Changes of Brain Microstructure and Function in Nonconcussed Female Rugby Players, Neurology (June 17, 2020).
[8] Leddy, et al. (2019), Early Subthreshold Aerobic Exercise For Sport-Related Concussion, JAMA Pediatrics, doi:10.1001/JAMAPediatrics.2018.4397.
[9] Roberts, et al. (2019), Effects Of Tranexamic Acid On Death, Disability, Vascular Occlusive Events And Other Morbidities In Patients With Acute Traumatic Brain Injury (CRASH-3), The Lancet, dol.394, Issue 10210, pp. 1713-1723.
[10] Lumba-Brown, et al. (2018), Centers for Disease Control and prevention guideline on the diagnosis and management of mild traumatic brain injury among children, JAMA Pediatrics, doi:10.1001/JAMAPediatrics.2018.2853.