As medicine has advanced, it has been harder for plaintiffattorneys to causally link pre-existing conditions to minoraccidents.

Disc injuries, meniscal tears, rotator cuff tears and TMJ areall areas where plaintiff attorneys have attempted to create valueout of existing problems. With the advances in MRIs and moreresearch, it is getting harder for the plaintiff to provecausation.

One area where plaintiff attorneys are trying to create value isin the brain.

Because of all of the news about concussions in the NFL and othersports, more people are aware of how dangerous a brain injury can be. Little leagues now requirevolunteer coaches to be trained on how to spot and treat aconcussion to prevent athletes from harming themselves.

The NFL now has a medical professional at all games whose solejob is to watch the game for potential concussion victims. A side effect ofthis increased awareness is that juries are now better informed onthose dangers and are more willing to award real money to aplaintiff who can show a traumatic brain injury.

Determining injury severity

Brain injuries run the gamut from mild to severe. The level ofbrain injury is defined by a score on the Glasgow Coma Scale (GCS).Mild brain injury is defined as a brain injury with a GCS of 13 to15. Moderate brain injury is defined as a brain injury resulting ina loss of consciousness from 20 minutes to six hours, and a GCS ofnine to 12. Severe brain injury is defined as a brain injuryresulting in a loss of consciousness of greater than six hours anda GCS of three to eight.

When defending such a claim, it's important to know thedifferences and where the plaintiff's claim falls on this scale.The Glasgow Coma Scale score can usually be found in either theambulance report or an emergency room report. A concussion isdefined as a mild traumatic brain injury.

If the GCS is in the moderate or severe range, then there is alegitimate brain injury and the best way to handle those claims isto focus on damage control because there will be a stronglikelihood of long-term consequences.

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It's also important to look for a CT scan or brain MRI. Whendefending a brain injury claim, look for any signs of internalbleeding. The CT scan will note if there any changes in the midlineshift or collections of fluid.

An MRI can detect injuries to the white matter of the brainthrough the use of a diffusion tensor imaging (DTI) technique.Smart plaintiffs will likely start having this type of MRI done inhopes of finding damage which is harder to see in a traditionalMRI.

Coaches and physicians are being more cautious when playerssuffer mild traumatic brain injuries because of the long-termeffects. (Photo: Shutterstock)

Concussion injuries

Concussions can occur if the brain moves toorapidly inside the skull. Car accidents, contact sports, violentencounters or falls can all cause a concussion. By pointing outthat a concussion is a mild traumatic brain injury, itlessens the impact.

For 50% of people, post-concussion symptoms go away within a fewdays to several weeks after the original injury occurs. In others,symptoms may remain for three to six months, but evidence indicatesthat many cases are completely resolved within six months.

The majority of symptoms are largely gone in about half of thepeople with a concussion one month after the injury, and abouttwo-thirds of people with minor head trauma are nearly symptom-freewithin three months. If symptoms are not resolved by one year, theyare likely to be permanent, though improvements may occur aftereven two or three years, or may suddenly occur after a long timewithout much improvement.

The symptoms of post-concussion syndrome include:

• Temporary loss of consciousness.

• Confusion.

• Headaches.

• Dizziness.

• Fatigue.

• Sleep problems.

• Lack of energy.

• Vomiting.

• Nausea.

• Delayed responsiveness.

• Amnesia regarding the injury.

• Slurred speech.

• Looking dazed.

Physicians and attorneys must consider multiple symptoms todetermine whether or not a patient has suffered a permanent braininjury. (Photo: Shutterstock)

Defending concussion claims

For purposes of defending these claims, it is easy forplaintiffs to argue that they have suffered a permanent braininjury if they are not healed within one year, since mostconcussions heal within this timeframe.

Frequently, they use neuropsychological testing to support thisargument. Such testing is the standard to determine cognitiveimpairments and there is a built-in mechanism to such testing formalingering and exaggeration of symptoms.

Obviously, to counter the neuropsychological testing of theplaintiff, the defendant must retain its own expert. However, itcan be even more effective to be able to argue that the symptomsare related to a different condition. In particular, a conditionwhich one can recover from as opposed to a permanent braininjury.

Depression has many of the same symptoms as post-concussionsyndrome and is a common occurrence following a concussion. One ofthe main differences is that with proper treatment, juries believethat people can recover from depression, whereas they are lesslikely to believe that a plaintiff can recover from a brain injurythat appears to be permanent because of symptoms lasting more thana year. This particular defense works because it is common forthose who have a concussion to become depressed during therecovery.

The symptoms of a major depressive episode include:

• Feeling sad.

• Loss of interest or pleasure in usual activities.

• Feeling worthless.

• Changes in sleep or appetite.

• Difficulty concentrating.

• Lack of energy.

• Slowed speech.

• Headaches.

While the symptoms are not exactly the same, there issignificant overlap, particularly the difficulty in concentrating,the altered speech and the lack of energy. In a study published inthe Journal of Clinical Neuropsychology in 2005, nine out of 10patients with depression met the liberal criteria forpost-concussion syndrome even though they did not have aconcussion. Using a conservative standard for post-concussionsyndrome, five out of 10 patients in the sample still met thatcriteria.

Related: NFL $765 million concussion accord upheld byappeals court

As such, a good defense counsel can effectively argue for amisdiagnosis of a permanent brain injury when the plaintiff merelyhas a treatable depression. In a young plaintiff, this cansignificantly reduce the future damages. The key is to convince thejury that the continued medical issues of the plaintiff aretreatable and not permanent. A diagnosis of depression can helpdiminish the value of concussion claims.

David A. Glazer, Esq. is a partner in thefirm of Shafer Glazer, LLP. The firm's practice is focused onInsurance and Corporate Liability Defense. Shafer Glazer is theYour House Counsel Member Firm in downstate New York, New Jersey,and Connecticut. To contact the author or for more information,visit www.ShaferGlazer.com or www.YourHouseCounsel.com.