Before tackling liability or damages where there is a head injury or past history of a brain injury or cognition issues, read this.

Understanding Common Brain Injuries

Brain injuries can result in long-term changes to personality and mental health, such as neurocognitive disorders, mood disorders, even psychosis. For example, the traumatic event that led to the brain injury or the brain injury itself may cause post-traumatic stress disorder (PTSD.)

This article describes:

• Types of brain injuries. E.g., TBI, ABI, Concussion
• Injured Brain vs. Degenerative Disease
• Diagnosis
• Causes
• Relevance to civil litigation or criminal cases

What Causes a Traumatic Brain Injury and/or Concussion?

Traumatic brain injury (TBI) is a brain dysfunction caused by an outside force, classified by the biomechanical forces involved, such as blunt trauma, penetrating injuries, or blast overpressure injury. A concussion is also caused by a blow to the head.

Examples of Injury Types

Dementia From a TBI

Dementia is normally considered a degenerative disease and not a brain injury, though research suggests it might be causally related to repeated concussions such as those acquired from sports injuries.

A diagnosis of Dementia or Parkinsons, at any stage in life can exist independently or be made worse by a TBI immediately before onset, or years before. Muhammad Ali developed Parkinson’s disease after enduring a years-long exposure to TBIs during his boxing career. However, there is no medical concensus by Neurologists if one caused the other.¹

Examples of blunt trauma include impact during a motor vehicle accident (MVA), falls, or assault.

Penetrating injuries include gunshot wounds (GSW) or injuries with sharp objects, such as knives, or car parts in a car accident. Blast injuries include improvised explosive devices (IEDs) or dynamite.

A person can be injured by multiple forces. For example, in a motor vehicle accident, impact on the head is followed by a penetrating injury from broken glass, then confusion and disorientation from a concussion.

TBI and ABI

TBI is a type of Acquired Brain Injury (ABI.)  ABI is defined by the World Health Organization as brain damage

“which occurs after birth and is not related to a congenital or a degenerative disease.”

An Acquired Brain Injury can include non-traumatic causes such as stroke, brain tumor, brain hemorrhage, or other conditions.

Dementia is not an Acquired Brain Injury because it is a degenerative disease. ² Dementias and Medicolegal Implications.]

How Is TBI Diagnosed?

Brain injuries are diagnosed using multiple diagnostic tools and measures, including:

• Imaging tests (CT, MRI, x-ray)
• Neurological exam
• Neurocognitive testing
• Blood tests

What Are the Effects of TBI?

TBI can cause a neurocognitive disorder, which impacts one’s

Cognition in various domains such as

• Memory
• Concentration
• Executive functioning

Mood disorders, such as depression or anxiety disorders.

Neurological issues, e.g.,

• seizures
• headaches
• speech disorders
• inability to walk

A TBI can be accompanied by other serious injuries such as spinal cord injury (SCI,) which I see in my work with patients at TIRR Hermann, a prominent rehabilitation and research hospital.

When there are multiple medical injuries factored in a lawsuit, a physician should conduct the forensic assessment. For example, a doctor Board-Certified in Psychiatry, Forensic Psychiatry, Brain Injury Medicine or Neurology might serve as an Expert Witness depending on the case-appropriate specialist knowledge.³

What Is a Concussion?

A concussion is a mild traumatic brain injury (mTBI). It also results from a direct impact to the head or a violent shaking of the head and body. It may be accompanied by a loss of consciousness (LOC) and post-traumatic amnesia (PTA).

There is no specific treatment for concussion.

Rest and activity restrictions are recommended to allow the brain to recover. Medications can help alleviate symptoms of post-concussive syndrome (PCS).

What Is Post-Concussive Syndrome?

PCS is a disorder in which symptoms last for weeks and sometimes months after the injury that caused the concussion. Typically, the symptoms occur within the first 7 to 10 days and resolve within 3 months. But sometimes they can persist for a year or more.

• Diminished concentration and memory
• Ringing in the ears (tinnitus)
• Blurry vision
• Noise sensitivity
• Light sensitivity (photophobia)
• Decreases in taste and smell

Medications to Avoid or Limit

Certain psychiatric medications should be avoided or limited in TBI. Strong antipsychotic drugs such as Haldol can impair brain recovery after a TBI. Certain anxiety medications such as Valium or Xanax are not advised as they can adversely impact memory and increase the fall risk. Some seizure medications can have neurocognitive side effects in TBI such as Tegretol.

Read more: Brain injury case studies.

Litigation

A brain injury can impact civil damages if there is a causal link. A person might be unable to work, attend school, or maintain relationships if they have suffered brain injury or permanent brain damage. These are critical factors in evaluating damages.

The effects of brain damage, depending on recovery, can be severe. An expert witness experienced in assessing brain damage in the context of damages is able to consider the complex medical information related to the injury. 

These are considerations for both plaintiff’s attorney or defense counsel. Ultimately, attorneys on either “side” can best represent their clients when they understand the health of a plaintiff in light of allegations.

The Qualified Expert Witness

A Psychologist is Not Qualified to Diagnose a Mood Disorder Associated with a Brain Injury

A Psychologist is not qualified to review MRIs, fMRIs, CT Scans, or other medical diagnostic tests to diagnose a brain injury. However, a Forensic Psychologist might be qualified to discuss psychological disorders outside the medical realm.

A Physician is Qualified to Review Imaging and Medical Diagnostic Tests

A Psychiatrist, or a psychiatrist and neurologist together, is qualified to diagnose brain injuries. A psychiatrist is qualified to assess, with a psychiatric IME, if psychological conditions are present, and if it is medically probable the psychological condition and injury are causally related.

Criminal Cases

The answer depends on factors like these:

• Severity
• Symptoms
• Context
• Recovery, or lack of recovery
• Relationship between the injury and behavior
• Executive function, e.g. problem-solving or making plans
• Which part of the brain is impacted

Traumatic brain injury can be relevant to Competency to Stand Trial, NGRI (Criminal Responsibility,) and sentence mitigation. Read more: “Can a Brain Injury Impact Criminal Behavior?”

Can You Fake a Brain Injury?

While it is difficult to malinger a brain injury given the extensive diagnostic tools used to diagnose TBIs, people still try.

Lying

History and consistency are relevant to an index of suspicion for malingering. The evaluator should review available medical records, including those about brain injuries preexisting the event underlying the litigation.

“Proving” a Brain Injury and Liability

Forensic Psychiatrists diagnose a brain injury and issue their findings. They can establish if a brain injury exists, and explain their findings and logic to a trier of fact. This includes the relationship among diagnoses and if there is a likely relationship with an event.

We do not, however, “prove liability.” Liability is for the court and jury to determine.

An articulate expert witness can be the key to giving information that is helpful to parse the evidence and render a legal judgment about liability.

An expert witness is not simply a physician but also a communicator, a translator of medical information for the lay person.

Forensic Psychiatrists receive training in medical legal interpretations, and legal concepts like liability. They generally testify during their Fellowship training. This is not the case in other specialty training. 

Ultimately, liability is not in the purview of a physician or psychologist.

An jury, however, is aided by expert witness testimony to make informed decisions.