concussion

The existence and severity of a concussion is a frequently contentious issue in personal injury litigation. One hurdle faced by concussion victims is the lack of medical evidence that can reliably diagnose the condition without additional reliance on a generous dose of medical judgment.

If this hurdle is overcome, the defendant is likely to raise other objections as well. MRIs become an issue in a personal injury lawsuit when a defendant asserts that a healthcare provider’s failure to perform one indicates that the concussion is not as serious as the victim claims it is, or that the plaintiff did not suffer a concussion at all. This objection cannot withstand scrutiny.

What a Concussion Is

The human brain contains a multitude of nerve fibers. In a concussion, these fibers are disrupted and the cells in the brain’s blood vessels are damaged at a microscopic level. Since your brain is fragile, with the consistency of gelatin, the microscopic nature of the damage doesn’t mean that a concussion isn’t a serious injury. A concussion is considered a mild form of traumatic brain injury (TBI), and it does not cause macroscopic structural changes in the brain.

How Doctors Diagnose Concussions

If the doctor suspects that you sustained a concussion, he will ask you about the accident; test your speech, memory, balance, and coordination; and check your head, eyes, ears, and neck. Experiencing some or all of the following symptoms may indicate that you sustained a concussion:

  • Headaches
  • Vomiting and nausea
  • Dizziness and problems maintaining your balance
  • Blurred vision
  • Ringing in the ears
  • Confusion and poor concentration
  • Memory loss
  • Sensitivity to light or noise
  • Loss of consciousness for a brief period (when a boxer is knocked out, for example, it is because his opponent deliberately inflicted a concussion on him)

Although CT scans are not useful for diagnosing concussions, your doctor may also order a CT scan if he suspects a skull fracture or bleeding in the brain because you lost consciousness, were injured in a traffic accident, or fell more than three feet, for example. The existence of a skull fracture or bleeding in the brain can be used as circumstantial evidence of a concussion.

How an MRI Works

Magnetic resonance imaging (MRI), is an advanced technique that can be used to scan various parts of the body. MRIs are preferred in certain head injury cases because (i) an MRI can sometimes generate images that are clearer and more detailed than images generated by X-rays, CT scans, and ultrasound, and (ii) MRIs do not generate radiation the way that CT scans and X-rays do.

Nevertheless, an MRI can only detect macroscopic structural changes in the brain. The assertion, that a healthcare provider’s failure to perform an MRI undermines a plaintiff’s claim to have suffered a concussion, is based on the false assumption that MRIs are useful in diagnosing concussions. They are not. Although MRIs are frequently performed after a concussion, the purpose is not to diagnose a concussion but rather to rule out a more serious injury.

To understand why an MRI is not useful in diagnosing a concussion, imagine trying to use a device similar to an X-ray to detect internal damage to a computer. Although such a device might readily detect damage to the computer’s hardware, it could not be expected to detect damage to software. Although this is a rather crude analogy, it is a rough description of the limitations of MRIs in diagnosing a concussion.

Winning a Personal Injury Case Based on a Concussion Claim

A concussion claim suffers from a similar infirmity as a whiplash claim does. Unlike a broken leg, which is hard to argue with once X-ray results are in, concussion cannot be proven through direct medical evidence. After all, a concussion involves microscopic damage, and you can’t exactly insert a microscope into a patient’s brain (although that may change someday). Nevertheless, plaintiffs frequently win concussion claims.

Building a case for the existence and severity of the claimed concussion

To win a personal injury lawsuit over a concussion, you must prove that you suffered a concussion; that the defendant caused the accident that produced the concussion (or is otherwise responsible for it); and that your concussion is responsible for the damages you are claiming. To do this, you must establish the existence and severity of the concussion.

The question of the existence and severity of your concussion is likely to come down to whether the court believes the testimony of your doctors or the testimony of the medical experts brought in by the other side (an insurance company, for example). Even in settlement negotiations, the value of your claim will be affected by how persuasive the defendant believes your claim would be at trial should settlement negotiations fail.

Whose word versus whose?

Either way, in the typical case, a jury is likely to discount the testimony of the medical experts called in by the other side because they have an obvious financial interest in refuting your claim. Your own doctors, however, have nothing to gain if you win your claim, and as such, a jury is likely to treat them as credible expert medical witnesses.

If you were treated by more than one doctor and your doctors disagree, however, proving your case could become problematic. In such a situation, it might be worthwhile to retain the services of an independent medical witness, who is known for his objectivity, to review your case and, if his review supports your claim, testify in your favor.

Refuting the defendant’s claim that the failure to order an MRI undermines the defendant’s concussion claim

A defendant’s attempt to use a doctor’s failure to order an MRI to dispute a plaintiff’s concussion claim can be answered by:

(i) proving that an MRI detects only substantial structural (macroscopic) damage to the brain;

(ii) proving that a concussion, by its very definition, involves only microscopic damage to the brain; and

(iii) noting that, given these facts, the plaintiff’s claim to have suffered a concussion does not amount to a claim that he suffered any injury that an MRI could be expected to detect – even if it were performed.

The conclusion is inescapable: the failure of a healthcare provider to order an MRI for a patient he suspects of suffering from a concussion is irrelevant to the question of whether a concussion was actually sustained.

Establishing the true extent of your damages

Proving the mere existence and severity of your concussion might not be enough on its own to be enough to win you fair compensation. To receive full compensation for your injury, you are going to have to prove the full extent of your damages. Some of the items you might claim for (and must prove) include:

  • Post-concussion syndrome: The symptoms of post-concussion syndrome can persist for a year or more after a concussion. Since this condition affects only about one in ten people who suffer concussions, however, your proof will have to be convincing.
  • Lost earnings: If you took time off work due to your injuries, or if you expect your concussion to limit your future ability to earn money, it is critical that you prove lost earnings through witness testimony and documentary evidence.
  • Pain and suffering: Pain and suffering are intangible by its very nature. Nevertheless, courts award generous pain and suffering damages with regularity in all kinds of personal injury cases.
  • Punitive damages: Punitive damages are usually not available, but they might be if your concussion resulted from, for example, an intentional beating.

Legal Issues Arising from Sports Injuries

About one-fifth of all concussions in children and adolescents result from participation in sporting activities. The manner in which a concussion can be detected is extremely relevant to a concussion that arises in the context of contact sports. This is because returning an athlete to play, despite symptoms of a concussion, could result in civil liability or even criminal charges.

The Danger Zone: Second Impact Syndrome

Once an athlete has sustained a concussion, the greatest risk is likely to be second-impact syndrome (SIS). If a second concussion occurs before the athlete has fully recovered from the first one, SIS can set in even if both concussions were mild when considered in isolation. SIS is characterized by rapid swelling of the brain that almost always results in severe disability or death. Take care – it sometimes takes several weeks to recover from an initial concussion.

Civil and Criminal Liability

The issue of the civil (monetary) liability faced by someone in authority who sends an athlete back out to play after a concussion is still developing, and gray areas remain. Suffice it to say that it is a terrible idea to send an athlete with a head injury back out to play unless you are absolutely certain that either (i) no concussion was sustained, or (ii) the athlete has fully recovered from any previous concussion. The following are some of the legal risks:

Medical Malpractice Liability

A team physician, ringside doctor, or other healthcare professional who has established a doctor-patient relationship with the athlete can be sued for medical malpractice for issuing an ill-advised medical clearance that causes an athlete to be re-injured. The professional will be liable for the subsequent injury if his clearance failed to reflect a professional standard of care. The same standard might not apply to a spectator who renders first aid, even if he is a doctor.

Ordinary Negligence Liability

If an athlete is re-injured due to the conduct of an athletic trainer (or someone else in authority who is not a healthcare professional), the trainer will be held to the standard of care of an ordinary person, which is much lower than the medical malpractice standard of care. Athletic trainers have been held liable for failing to refer an athlete to a qualified doctor when the need for one was obvious.

Wrongful Death Liability

In Connecticut, the probate estate of a deceased athlete can file a wrongful death lawsuit against an athletic trainer or healthcare professional who causes the death of an athlete. The estate representative is likely to be a family member of the victim.

Criminal Negligence Liability

At some point, the ordinary negligence that can justify a civil lawsuit becomes severe enough to be characterized as criminal negligence – thereby justifying criminal charges. If the athlete dies due to criminal negligence, manslaughter charges might be filed against the responsible party.

Take Decisive Action Immediately

If you or your loved one have suffered a concussion that you believe someone else may be liable for, don’t delay seeking medical treatment or contacting a personal injury lawyer – evidence can deteriorate rapidly with this type of injury. Contact Berkowitz Hanna today to schedule a no-obligation case evaluation. Call now or contact us online to get started.