[This is the second of two articles on Mild Traumatic Brain Injury.  Part 1 was published January 21, 2020.]

We recently went over the basics of Mild Traumatic Brain Injury (mTBI), especially from the perspective of anyone involved in litigation, insurance claims, bill audits and elsewhere.  It’s a complex issue that deserves the attention of business owners, insurance executives, claims administrators, attorneys and others.

In Part 1, we laid out how Mild Traumatic Brain Injury (mTBI) is a difficult condition to diagnose and to treat.  How it’s a complex issue with high-stakes legal and medical consequences.  We also re-capped the panel that Burton Bentley II, MD, FAAEM, and I presented last fall to the Atlantic Claim Executives Association (ACEA).

A deeper dive into possible neurocognitive issues in mTBI

When I’m looking at a claim involving mTBI, I know that associated conditions and diagnoses can develop or occur depending on the injury specifics.  Here’s an overview of areas of the brain and some of the basic functions…

  • Cognitive impact in the Cerebellum:  Impaired attention, learning, reasoning, memory, reaction time.
  • Behavioral/Emotional impact to the Frontal Lobe and Temporal Lobe:  Delusions, mood disturbance, impulse control issues, confusion.
  • Motor impact to the Brain Stem and Cerebellum:  Impaired coordination, balance.
  • Sensory impact to the Occipital Lobe, Parietal Lobe and Temporal Lobe:  Auditory/vision impairment, sensitivity to light.
  • Somatic impact to the Frontal Lobe:  Headaches, fatigue, dizziness, sleep disturbance, chronic pain.

I also know from my training and experience that there are several expected outcomes from mTBI.  These include that an overwhelming majority recover quickly (days to weeks); that objective data can reveal short-lived impairments; and that literature supports resolution in about 90 days.  Additionally, NOT following prescribed post-concussion or mTBI protocols, and treatment recommendations can delay recovery.  This means limiting computer and phone screen time, reducing or temporarily stopping sports, reduced school time, TV watching, and so on.  The key is to allow the brain to rest and recover.  If a person has sustained a mTBI or concussion, review the medical records for compliance to the treatment plan, as well as personal activity levels.  ALL should be consistent with typical post concussive participation (or lack of) and accepted protocols.

The plaintiff’s perspective…and weaknesses

I see several common threads to the typical plaintiff’s perspective and goals…and opening for defending against them.  These include the following:

  • “The Miserable Minority.” A small percent or subgroup of patients that suffer from chronic, associated complaints  or have an unfavorable outcome.  This subgroup is somewhat controversial and many studies have been done to attempt to determine the etiology of the persistent symptoms.  Having said that, this small population often drives or influences opposing counsel narrative.
  • The collective, popular perspective, such as recent movies, NFL, news, wars
  • You may not see anything:  even a dog has a normal Glasgow Coma Scale (GCS)
  • But if you can see it, it translates into a potentially lucrative claim
  • Give the jury anything they can see

The plaintiff’s bar has been leaning heavily into current and emerging testing as purported evidence in support of TBI claims and cases.  These include:

  • CT
  • MRI
  • Diffusion-weighted MRI
  • Diffusion Tensor Imaging (DTI)  Allows for visualization of these white matter tracts by imaging the anisotropy of water diffusion
  • Magnetoencephalography (MEG)
  • Growth hormone (GH) level

However, testing has limited validity and reliability. It is critical to understand the diagnostic testing and what each specific study is evaluating. Then, do the results align with the purported injury?  Could “positive” finding be attributable to something unrelated?  Often only a higher level medical consultant can answer these questions.   MKC has written extensively on these limits, particularly noting the complex similarities between mTBI and PTSD.  In “The importance of reliable, medical analysis in TBI and PTSD-related claims,” we noted the following:

“Since PTSD and TBI have similar symptoms and are both most commonly diagnosed in veterans, it may be increasingly difficult to distinguish between the two, particularly since anywhere from 6% to 44% of those with TBI also have PTSD.

“While PTSD generally results from past trauma, and TBI often follows a physical brain injury such as direct force, a blast injury, or diffuse axonal shearing, both can have similar Functional Magnetic Resonance Imaging (fMRI) findings, particularly within the dorsolateral prefrontal, orbitofrontal, medial frontal, and anterior cingulate cortices….

“These diagnostic similarities and the difficulty of a reliable analysis often come into play when reviewing the medical records for a TBI or PTSD claim for evidence of possible malingering.

“Since PTSD and TBI have similar symptoms and are both most commonly diagnosed in veterans, it may be increasingly difficult to distinguish between the two, particularly since anywhere from 6% to 44% of those with TBI also have PTSD.

“While PTSD generally results from past trauma, and TBI often follows a physical brain injury such as direct force, a blast injury, or diffuse axonal shearing, both can have similar Functional Magnetic Resonance Imaging (fMRI) findings, particularly within the dorsolateral prefrontal, orbitofrontal, medial frontal, and anterior cingulate cortices….

“These diagnostic similarities and the difficulty of a reliable analysis often come into play when reviewing the medical records for a TBI or PTSD claim for evidence of possible malingering.”

Three views of the post-injury brain imaging, explained

(A) T1-weighted inversion recovery prepared fast spoiled gradient-recalled (IR-FSPGR) postcontrast image. There is no ability to distinguish the different fiber tracts. For example, all of the white matter tracts within the centrum semiovale and the same intensity and directional information cannot be obtained.

(B) DTI fractional anisotropy gray scale image. There is varying signal intensities within the white matter tracts within the centrum semiovale and fiber tracts are visualized separately.

(C) DTI color-coded fractional anisotropy. The colors correspond to the direction of the fiber tracts with red, blue, and green tracts denoting transverse, superior-inferior, and anterior-posterior directions, respectively. Different components of white matter fascicles can be much more clearly delineated. 

SOURCE:  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6082670/

The DTI study analyzes the pathway of water through the brain.  The pathways are visually clearer and thus enable clinicians to better determine the cause behind an irregularity.  In mTBI cases, this study may identify associated irregularities that would NOT be seen on more traditional imaging.

When evaluating a mTBI or possible mTBI

There are several recommended best practices for evaluation.  Remember that…

  • TBI can exist even when you can’t see it. So, just because you have negative diagnostic studies does not mean a concussion/mTBI is not present.
  • Any positive radiological or physical finding could indicate a mTBI, even though the vast majority of patients recover completely with no residual.  Be sure to understand what that “positive” means to your specific case.
  • Any allegations of cognitive impairment need to be assessed through neuropsych and neurocognitive testing.  Obtain all raw test data and have it reviewed by a neuropsychologist.  It is important to determine the source of any “positive” findings, as these findings may be unrelated to the alleged mTBI.
  • Pay attention to the clinical documentation and how it unfolds. This is critical to any case.  Any positive finding or lack of positive will ultimately tell the story.  When in doubt, access medical consultants for assistance and input

Finally, don’t rely on the Glasgow Coma Scale (GCS), a measure of the level of consciousness in a person following a traumatic brain injury, putatively to help gauge the severity of an acute brain injury.  The GCS is NOT necessarily a good predictor (or not) of mTBI, as you can have a normal GCS and still sustain a concussion. 

Some typical plaintiff strategies

Plaintiff lawyers have leveraged the small percent of injuries that have lasting sequelae and/or secondary conditions resulting from a prior injury.  This drives the industry.  In addition, we see the following strategies from the plaintiff bar…

  • Mixing moderate/severe TBI with mTBI
  • Plaintiff-oriented providers and attorney driven care
  • More testing and more providers

Possible defense strategies

For starters, the literature overwhelmingly supports full recovery from mTBI. So, remember to research plaintiff providers and experts.  Also, take a look at…

  • What is the care OUTSIDE the TBI claim?
  • Obtain and review ALL data; examiner is key
  • Review ALL pre-DOL info (service, employment, school) for psychological and cognitive baselines
  • Nearly 40% cases involve malingering

Finally, look for possible substance use/abuse or somatization in an mTBI claim.

Actionable strategies

In summary, here’s a re-cap of the Top 12 ways to understand and defend against an mTBI claim.

  1. PREPARE, PREPARE, PREPARE
  2. Review and analyze the timeline
  3. Understand and know pre/post DOL medicals, treatments, medications and conditions
  4. What does the testing show
  5. Use medical experts
  6. Education all defense team members and ultimately the jury
  7. Investigate and know all treating providers
  8. Remember the ORIGINAL EMS AND ED diagnoses
  9. Understand the science of mTBI vs moderate and severe TBI
  10. Validity testing
  11. Review all prior education, service and employment histories to help establish a baseline
  12. Is a defense Independent Medical Exam (IME) indicated? But first, completely understand the nature, etiology, extent and prognosis of the injury and claim

Thanks again to Burton Bentley II, MD, FAAEM, with whom I presented last fall to the Atlantic Claim Executives Association (ACEA) on the topic of mTBI.