Rethink cross-exams in traumatic brain injury cases

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Damages

April 2012, Volume 48, No. 4

Rethink cross-exams in traumatic brain injury cases 

Bruce H. Stern

Mild traumatic brain injuries don’t have telltale signs, which is why the defense is likely to call a medical expert to testify that there is no objective evidence to support your client’s injury. Don’t try to discredit this witness; instead, get that expert to prove your case for you. Here’s how.

If you’ve ever represented a client with a mild traumatic brain injury, you know what it’s like at trial to have to sit patiently while the defense leads its medical expert witness through his or her testimony, selectively presenting your client’s history. The expert may emphasize the lack of a direct blow to your client’s head, no loss of consciousness, and post-injury medical test results within normal ranges—basically arguing that there is no objective evidence to support your client’s subjective complaints. You want to scream when he or she testifies that even if your client did sustain a minor concussion, everyone recovers within six to eight weeks.

Then the judge turns to you and says, “Your witness, counsel.” The urge is to jump up and attack—to eviscerate opposing counsel’s medical expert.

But consider another approach: Make the defense’s medical expert witness your own. It seems counterintuitive to one of the purposes of cross-examination, which is to discredit the testimony of the opposing counsel’s witness, but by not putting the witness on the defensive, he or she may prove your case for you.

Trial lawyer Carl Bettinger cautions that in cross-examination, “You need not ‘destroy’ every witness by discrediting everything one says or showing that each expert is a hired gun.”1 Trial consultant David Ball says, “Most often the defense case pushes your harms case out of the spotlight. Don’t let it. Keep the jurors thinking about harm at every opportunity.”2 Using this advice as a springboard, the following lines of questioning will get the defense’s medical expert to bolster your client’s case during cross-examination.

But this cross-examination does not start when the trial judge turns to you and says, “Your witness.” It starts when you are preparing for trial. You must familiarize yourself with the scientific literature on traumatic brain injury, including peer-reviewed journals such as the Journal of Head Trauma Rehabilitation, Brain Injury, and the Archives of Clinical Neuropsychology.3

Investigate which aspects of traumatic brain injuries are not open to interpretation. When medical experts are on the stand, they are inclined to provide their medical opinions. Instead, you’ll want to get them to acknowledge facts. It’s unlikely for experts to disagree with you when asked to acknowledge the objective scientific evidence. However, solicit their medical opinions and you’ll find very little agreement.

On the stand

Start with obtaining concessions from opposing counsel’s medical expert that help undermine the defense’s theme but, more important, debunk any myths about traumatic brain injuries.4 For example, ask the witness:

  • Would you agree that a person could sustain a brain injury—for example, in a car crash—even if that person does not strike his or her head? Perhaps simply due to the stop-and-go forces that occur in a rear-end collision?

  • Does a person have to lose consciousness to sustain a brain injury?

  • Can you rule out or reject the diagnosis of traumatic brain injury simply because a person did not lose consciousness?

  • Does a normal neurological examination rule out the diagnosis of traumatic brain injury? That is, can a person with a traumatic brain injury still have normal results from a neurological examination?

  • Do you agree that MRI and CT scans are often normal when performed on a patient who has suffered a mild traumatic brain injury?

  • Is it true that MRI and CT scans are often not sensitive enough to detect brain damage?

  • Is it true that the reason a doctor orders an MRI or CT scan is to look for a brain bleed?

  • Isn’t it true that emergency department physicians often fail to diagnose traumatic brain injury even when the patient has sustained such an injury?5

  • A person who has sustained a traumatic brain injury may experience the symptoms for a long time, correct?

  • Is it true that some people with traumatic brain injuries never fully recover?

Define the injury

Using an accepted definition of mild traumatic brain injury will force the defense’s medical expert to acknowledge that your client sustained this type of injury. One of the most widely accepted definitions, developed by the American Congress of Rehabilitation Medicine, states: “[P]atients with mild traumatic brain injury can exhibit persistent emotional, cognitive, behavioral, and physical symptoms, alone or in combination, which may produce a functional disability.”6

First, get the defense’s medical expert to agree that this definition is widely accepted and relied on by experts in the field to diagnose mild traumatic brain injury. And get him or her to agree to the definition itself. Then connect each of your client’s symptoms to the definition. Symptoms fall under one of the following categories.

  • Physical symptoms (nausea, vomiting, dizziness, headache, blurred vision, sleep disturbance, quickness to fatigue, lethargy, or other sensory loss) that cannot be attributed to other causes.

  • Cognitive deficits (involving attention, concentration, perception, memory, speech/language, or executive functions) that cannot be completely accounted for by emotional state or other causes.

  • Behavioral changes or alterations in the degree of emotional responsiveness (irritability, quickness to anger, disinhibition, or emotional lability) that cannot be accounted for by a psychological reaction to physical or emotional stress or other causes.

This is a lot of information for jurors to grasp, so a visual aid may help them understand the concepts. I create an enlarged chart that lists each symptom under these three categories. Then, I go through the chart with the defense’s expert, checking off each of my client’s symptoms to demonstrate that he or she meets the definition.7

Get the defense’s expert to acknowledge that your client experienced these symptoms following the injury and to acknowledge how these symptoms affect your client’s activities of daily living. For example, ask him or her:

  • My client has complained of problems of attention and concentration since the injury and underwent neuropsychological testing. The results demonstrated problems with attention and concentration. Is neuropsychological testing objective?

  • Problems with attention and concentration are cognitive deficits consistent with mild traumatic brain injury, correct?

  • Would you agree that the symptoms that my client has complained about meet the criteria in this scientifically accepted definition?

  • Would you agree that people with mild traumatic brain injury who have physical, cognitive, and behavioral symptoms experience problems in activities of daily living?

  • Can they also experience problems at work?

Establish a baseline

Even when you can get opposing counsel’s medical expert to acknowledge that your client has trouble with activities of daily living, you still need to tie your client’s problems to the specific trauma that is the basis of the lawsuit. The defense will try to attribute your client’s problems to some prior injury or illness even if unable to specifically identify it. Use lay witnesses, such as family and longtime friends or coworkers, to counter this defense. Their testimony will go a long way in refuting the defense’s allegations that your client’s symptoms, impairments, or disabilities pre-dated the traumatic incident.

To establish a patient’s overall level of functioning in activities of daily living, psychiatrists use a tool called the Global Assessment of Functioning (GAF) Scale.8 It identifies the patient’s functioning on a scale of 0 to 100. Patients with a rating from 91 to 100 are “superior functioning”; essentially, they are without symptoms. A rating of 41 to 50 is for symptoms that lead to antisocial behavior or social dysfunction. Patients who score at the bottom of the scale, such as between 1 and 10, pose a threat to themselves or others, cannot maintain their personal hygiene, or are suicidal. These patients are mostly dysfunctional on a daily basis and in need of immediate help.

Although the GAF Scale is for evaluating a patient’s level of functioning at the time of administration, a psychiatrist can also use it to evaluate your client’s functioning prior to the injury. Establishing a normal pre-injury baseline can help defeat the defense’s prior injury or preexisting illness defense.

Ask the expert if he or she assessed your client’s level of functioning using the GAF Scale. The answer is likely to be “no,” but if he or she answers “yes,” ask for your client’s score. Also ask if he or she assessed your client’s level of functioning within a day or week of the injury so that a pre-injury baseline can be established.

If the defense’s medical expert did not do this assessment, make him or her do it on the stand. Say to him or her:

  • Let’s determine that baseline now. Do you have any evidence that my client was having any problems at home or work?

  • In preparing your report, did you interview any of my client’s family, friends, or any of the people who work with him or her?

  • Were you provided with the names and statements of my client’s family, friends, or people who work with him or her?

  • Did any of those statements suggest that my client was experiencing any problems?

  • Returning to the chart that defines mild traumatic brain injury, was there any evidence that my client was experiencing any of these problems before the crash?

  • Would you agree that my client’s level of functioning shortly before this crash would put him or her in the 90–100 range, which is normal to superior?

Your client’s case isn’t weakened if he or she has a preexisting psychiatric condition, such as a history of depression or anxiety, or drug abuse or dependence. People with a history of psychiatric conditions are at higher risk for poorer outcomes following mild traumatic brain injury,9 which can explain why your client did not fully recover.

If your client has a history of a psychiatric condition, ask the defense’s medical expert the following questions:

  • You testified that my client fully recovered from any injury that he or she might have sustained. Is that based on population statistics that 85 to 90 percent of people with mild traumatic brain injuries fully recover within the first 6 months?

  • Were you provided with my client’s medical records?

  • Does my client have a history of a psychiatric condition?

  • Would you agree that people who have a history of depression or anxiety, for example, have worse outcomes following an injury?

  • Is a history of depression a risk factor for a poor outcome following a traumatic brain injury?

  • Would a person such as my client, who has a history of a psychiatric condition, be expected to have a worse outcome than someone with no history?

  • Could my client’s history explain why he or she did not fully recover?

The defense will likely try to undermine your client’s mild traumatic brain injury case by calling to the stand a medical expert witness who can obfuscate the facts. Cross-examination enables you to use the defense’s own expert to tell your client’s story. It is an opportunity to debunk the myths of mild traumatic brain injury, to establish a pre-injury baseline, and to demonstrate that your client’s symptoms meet the definition of traumatic brain injury. While the natural inclination may be to attack, think again. Don’t let a golden opportunity to enhance your client’s damages through cross-examination go to waste.

Bruce H. Stern is a shareholder with Stark & Stark in Princeton, N.J. He can be reached at bstern@stark-stark.com.

Notes:

  1. Carl Bettinger, Twelve Heroes, One Voice: Guiding Jurors to Courageous Verdicts 128 (Tr. Guides 2011).
  2. David Ball, David Ball on Damages: The Essential Update: A Plaintiff’s Attorney’s Guide for Personal Injury and Wrongful Death Cases, 189 (2d ed., Natl. Inst. Tr. Advoc. 2005).
  3. See also Brain Trauma Found, www.braintrauma.org; Ctrs. for Disease Control & Prevention, Injury Prevention and Control: Traumatic Brain Injury, www.cdc.gov/traumaticbraininjury; Natl. Insts. of Health, Natl. Inst. of Neurological Disorders & Stroke, NINDS Traumatic Brain Injury Information Page, www.ninds.nih.gov/disorders/tbi/tbi.htm.
  4. Ten common myths are: mild traumatic brain injury is not serious; loss of consciousness is necessary to sustain a traumatic brain injury; one must strike one’s head to suffer a traumatic brain injury; negative MRIs, CT scans and electroencephalograms rule out brain injury; the effects of traumatic brain injury are immediate; neuropsychological testing is subjective; cognitive impairments on neuropsychological testing must fit a predictable pattern; children with traumatic brain injury all get better; mild traumatic brain injury is not permanent; and mild traumatic brain injury is not disabling. Bruce H. Stern & Jeffrey Brown, Litigating Brain Injuries, ch. 2 (AAJ Press 2011).
  5. Janet M. Powell et al., Accuracy of Mild Traumatic Brain Injury Diagnosis, 89 Archives Physical Med. & Rehab. 1550 (Aug. 2008). The study found that emergency department physicians missed the diagnosis of brain injury in 56 percent of cases.
  6. Mild Traumatic Brain Injury Committee of the Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine, Definition of Mild Traumatic Brain Injury, 8 J. Head Trauma Rehab. 86, 87 (1993); see also David K. Menon et al., Position Statement: Definition of Traumatic Brain Injury, 91 Archives Physical Med. & Rehab. 1637 (Nov. 2010).
  7. See also Ctrs. for Disease Control & Prevention, Facts About Concussion and Brain Injury: Where To Get Help 1–2, 4–7, www.cdc.gov/concussion/pdf/Facts_about_Concussion_TBI-a.pdf; Heads Up: Facts for Physicians About Mild Traumatic Brain Injury (MTBI), www.cdc.gov/Ncipc/pub-res/tbi_toolkit/physicians/mtbi/mtbi.pdf.
  8. Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. text rev., Am. Psychiatric Assn. 2000).
  9. See George Mooney & John Speed, The Association Between Mild Traumatic Brain Injury and Psychiatric Conditions, 15 Brain Injury 865 (Jan. 2001); Jeffrey M. Rogers & Christina A. Read, Psychiatric Comorbidity Following Traumatic Brain Injury, 21 Brain Injury 1321 (2007).


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