Brain Injury Litigation Today

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1 MILD TRAUMATIC BRAIN INJURY PAPER 3.1 Brain Injury Litigation Today These materials were prepared by Joseph E. Murphy, QC, of Murphy Battista LLP, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, November Joseph E. Murphy, QC

2 3.1.1 BRAIN INJURY LITIGATION TODAY I. Medical Knowledge and Understanding of Mild Traumatic Brain Injury... 1 A. Testing for mtbi... 3 II. The Presentation of a mtbi Case and Important Evidence... 4 A. Educating the Trier of Fact on mtbi... 4 B. Pre-Accident Records... 4 C. Ambulance Report... 5 D. Post-Accident Health Records... 5 E. Collateral Information... 5 III. Judicial Judgments and Trends... 5 A. Holistic Approach... 5 B. Different Causes for Symptoms... 6 IV. Conclusion... 7 I. Medical Knowledge and Understanding of Mild Traumatic Brain Injury There is no set definition for an mtbi and the Courts in BC and Medical Experts have adopted a variety of definitions and approaches. 1. American Congress of Rehabilitation Medicine (ACRM) (http://www.acrm.org/wpcontent/uploads/pdf/tbidef_english_10-10.pdf) The ACRM is an organization of researchers and professionals around the world that focus on rehabilitation, research, and education for people with disabling conditions. In 1993, they published in the Journal of Head Trauma Rehabilitation, one of the first definitions for mtbi that is still used today: Definition A patient with mild traumatic brain injury is a person who has had a traumatically induced physiological disruption of brain function, as manifested by at least one of the following: 1. any period of loss of consciousness; 2. any loss of memory for events immediately before or after the accident; 3. any alteration in mental state at the time of the accident (e.g, feeling dazed, disoriented, or confused); and 4. focal neurological deficit(s) that may or may not be transient; but where the severity of the injury does not exceed the following: loss of consciousness of approximately 30 minutes or less; after 30 minutes, an initial Glasgow Coma Scale (GCS) of 13-15; and posttraumatic amnesia (PTA) not greater than 24 hours.

3 3.1.2 This definition has be referred to and used by experts in recent BC cases such as McCluskey v. Desilets, 2013 BCSC In Young v. Anderson, 2008 BCSC 1306 at para 93, Dr. Hashimoto rejected the ACRM definition for mtbi. Justice Boyd did not find Dr. Hashimoto s evidence as persuasive and stated specifically: 94 With all due respect to Dr. Hashimoto, I did not find his evidence particularly persuasive. His opinion regarding the definition of MTBI struck me as both general and simplistic. He testified that he, like "many neurologists", dismissed the notion that such a brain injury could occur without a loss of consciousness. Yet he made no reference to any body of medical literature or medical journal extracts to support his opinion. There has been no explicit rejection of the ACRM definition and it appears that is continues to guide experts in identifying and diagnosing mtbi s. In addition, the courts have accepted the evidence of experts using the ACRM definition. 2. The Centers for Disease Control and Prevention (CDC) (http://www.cdc.gov/ncipc/pubres/mtbi/mtbireport.pdf) In 2003, the CDC published a report called The Report to Congress on Mild Traumatic Brain Injury in the United States: Steps to Prevent a Serious Public Health Problem. Included in that report was a definition for mtbi: A case of mild traumatic brain injury is an occurrence of injury to the head resulting from blunt trauma or acceleration or deceleration forces with one or more of the following conditions attributable to the head injury during the surveillance period: Any period of observed or self-reported transient confusion, disorientation, or impaired consciousness; Any period of observed or self-reported dysfunction of memory (amnesia) around the time of injury; Observed signs of other neurological or neuropsychological dysfunction, such as: Seizures acutely following head injury; Among infants and very young children: irritability, lethargy, or vomiting following head injury; Symptoms among older children and adults such as headache, dizziness, irritability, fatigue, or poor concentration, when identified soon after injury, can be used to support the diagnosis of mild TBI, but cannot be used to make the diagnosis in the absence of loss of consciousness or altered consciousness. Further research may provide additional guidance in this area. Any period of observed or self-reported loss of consciousness lasting 30 minutes or less. In Jampolsy v. Shattler, 2011 BCSC 494, experts adopted various passages regarding the symptoms of mtbi from the CDC. Overall, the CDC definition for mtbi has not been explicitly adopted by experts or the BC Courts but it has expanded on the ACRM definition from World Health Organization (WHO) (http://www.concussionsontario.org/faq/) The WHO Collaborative Centre Task Force defined an mtbi as: MTBI is an acute brain injury resulting from mechanical energy to the head from external forces. Operational criteria for clinical identification include: (i) 1 or more of the following: confusion or disorientation, loss of consciousness for 30 minutes or less, post-traumatic amnesia for less

4 3.1.3 than 24 hours, and/or other transient neurological abnormalities such as focal signs, seizure, and intracranial lesion not requiring surgery; (ii) Glasgow Coma Scale score of after 30 minutes post-injury or later upon presentation for healthcare. These manifestations of MTBI must not be due to drugs, alcohol, medications, caused by other injuries or treatment for other injuries (e.g. systemic injuries, facial injuries, or intubation), caused by other problems (e.g. psychological trauma, language barrier or coexisting medical conditions) or caused by penetrating craniocerebral injury. A. Testing for mtbi Various tests are used to help diagnose and identify mtbi. However, there is no singular determinative test that can conclusively eliminate the possibility of an mtbi. This is likely the reason for the large number of legal disputes revolving around the issue of the existence of an mtbi. The damage that results from an mtbi injury is often microscopic. As a result, MRI and CT Scans are often unable to identify mtbi due to a lack of resolution. However, there are situations where an MRI s or CT scan will be able to identify mtbi so they are still recommended. In Goguen v. British Columbia, 2002 BCSC 1598, experts stated that normal MRI and CT results do not preclude an mtbi diagnosis as the results may fail to disclose microscopic details required for a proper diagnosis. When determining whether an mtbi has occurred, it probably best to complete an MRI and CT scan in the event that it might have conclusive results. However, if the desired results are not present, it does not preclude experts or the court from concluding the presence of an mtbi. There has also been significant controversy and divergence in the applicability of PET scans. In Wolfin v. Shaw (1998), 43 B.C.L.R. (3d) 190 (S.C), PET Scans were found to be of limited application in the diagnosis of an mtbi. However, it is inconclusive whether the courts will begin accepting PET scans universally. In concert with other tests, the use of PET scans may be a valid and reliable tool to diagnose an mtbi. Experts have also used various neuropsychological tests to help diagnose an mtbi. These include the Wechsler Memory Scale (Adamson v. Charity, 2007 BCSC 671). However, evidence from Neuropsychological testing has been given limited weight by the courts and experts. In Latuszek v. Bel-Air Taxi, 2009 BCSC 798, Justice Stromberg Stein stated at para 78: There is clear evidence, in my views, that the results of the neuropsychological testing are erratic and have given unpredictable results, and therefore I conclude that there is no evidence of a traumatic brain injury. Psychometric testing to measure cognitive and psychological function has also been used to help diagnose mtbi. Similarly to the other tests, the courts have recognized that standing alone, psychometric testing fails to reveal specific causes for any detriments (Gilbert v. Bottle, 2011 BCSC 1389). Once again, this testing is simply one piece of a larger puzzle. Psychometric testing along with other evidence can help diagnose an mtbi, but in isolation, is of limited probative value to the courts. The view from Latuszek and Gilbert confirm that no singular test is determinative in diagnosing an mtbi. Instead, a variety of tests are necessary to demonstrate a proper diagnosis. Even with such testing, definitive evidence may not be present but an mtbi may still exist.

5 3.1.4 II. The Presentation of a mtbi Case and Important Evidence A. Educating the Trier of Fact on mtbi One of the most important factors in trying an mtbi case is educating the trier of fact. Regardless whether there is a judge or jury, it is important to define mtbi, problems with conclusive diagnosis, and the symptoms associated with mtbi. For example, it must be communicated effectively that the lack of diagnostic imaging results does not preclude an mtbi. There should be an emphasis on the consciousness of the Plaintiff. If you are able to provide to the judge or jury with evidence that the Plaintiff had some sort of altered consciousness after the accident, the injuries will likely fit the definitions of mtbi. This approach is focused on educating the trier of fact of the broad definitions for mtbi. Stating the recovery rate on mtbi is a strategy often used by Defence counsel. Experts have stated that the rates of people who experience a full recovery from an mtbi are 85% to 95%. This number may seem overwhelming but has minimal impact on the case at hand. The small percentage of people that fail to recover will likely suffer symptoms for the rest of their lives. The trier of fact must be made to realize that your client is unfortunately in this small minority that will never fully recover. Regardless of the general rate of recovery, your client has NOT recovered. You must ensure that the trier of fact is not misdirected by statistical generalization that has no applicability to the case at hand. To counter this, there should be an emphasis on the ongoing symptoms that are experienced by those that do not fully recover. B. Pre-Accident Records Some information will need to be specifically addressed by Plaintiff s counsel when presenting their case. In regards to Pre-Accident Health, Defence counsel and their experts will often try to attribute the Plaintiff s symptoms to other causes, including depression, post-traumatic stress disorder, and drug abuse. In Anderson v. Kozniuk, 2014 BCSC 1206, the Plaintiff was injured while crossing the street as he was struck by a vehicle. One major issue was whether Mr. Anderson sustained an mtbi as a result of the accident. Defence counsel attributed many of his symptoms, including confusion, fatigue and low motivation, to a history of alcoholism: [137] I find the evidence does not prove on a balance of probabilities that Mr. Anderson s brain functioning was impaired by the Accident. I also find that the complaints reported by Mr. Anderson (described as fatigue, not having feelings, easily confused and low motivation) are more likely than not the result of overall emotional complications from a medically untreated anxiety issue and possible after-effects of a history of excessive alcohol use. I find they are not caused by the Accident (on a balance of probabilities) but are mostly likely appearing because his decreased alcohol consumption renders his underlying anxiety to be more prominent. It is vital for Plaintiff s counsel to directly address these issues. In addition, it will be important for Plaintiff experts to confront the pre-accident health issues because skilled defence counsel will attribute the Plaintiff s symptoms to pre-accident conditions.

6 3.1.5 C. Ambulance Report In the presentation of the Plaintiff s case, it is important for counsel to compile as much evidence that supports an mtbi as possible to present to the court. Meeting one, and ideally multiple, definitions of mtbi is compelling evidence. The Ambulance Report often provides information that will enable you to immediately meet the mtbi definitions. The consciousness of the Plaintiff, different/strange behaviors, emotional/cognitive behaviors, and the Glascow Scale can all be used demonstrate an mtbi. In addition, there is often reference to trauma or bruising to the head which also aids in demonstrating an mtbi. If there is any reference altered consciousness of the Plaintiff, this MUST be brought to the court s attention. This information is extremely persuasive in demonstrating an mtbi. D. Post-Accident Health Records It is important to diligently review all the post-accident records for symptoms of an mtbi. This may include dizziness, headaches, memory issues, and confusion. Although none of these factors are determinative, together, they help reveal what the Plaintiff is experiencing. In addition, chronologically listing the continuous symptoms of the Plaintiff provides further evidence that the Plaintiff is part of the minority of mtbi patients that will not fully recover. Continuous symptoms that begin on the date of the accident also combats the Defence s attempts to attribute the symptoms to other causes, such as PTSD. E. Collateral Information Without a definitive test for diagnosing mtbi, collateral information can be extremely beneficial. Collateral information can include school records, work performance, standardized test scores, and lay witnesses. Despite developments in the scientific study of mtbi, collateral information will always have a place in determining whether the Plaintiff is suffering from mtbi and identifying the specific symptoms. It is important to present evidence that definitely describes the Plaintiff before and after the accident. Specific to mtbi, due to the high recovery rates, lay witnesses should be questioned about the ongoing problems and progression of the Plaintiff s symptoms they personally observed. A. Holistic Approach III. Judicial Judgments and Trends The holistic approach to determining mtbi has continued to be the predominant trend. This is likely due to the lack of determinative scientific evidence of mtbi. In many recent cases, there have been a multitude of issues with the Plaintiff s evidence of mtbi. However, the courts have applied a flexible approach and specifically take into account the totality of the evidence, despite the shortfalls. This is evident in Fadai v. Cully, 2014 BCSC 290, at para 196: [196] I take counsel for Mr. Cully s points that the observations of Mr. Fadai s supporting witnesses are fragmentary and spread out over time; and that there is a danger that even honest witnesses will over-emphasize the timing and significance of events once their attention has been drawn to them.

7 3.1.6 [197] Even after allowing for those dangers, I am still persuaded based on the supporting evidence that there has been some actual change in Mr. Fadai s behaviour since the accident, although not of the proportions that he has claimed, and that it centers on his ability to regulate his impulses and anger. I am satisfied that there were originally also some difficulties with his short-term memory, but given his various answers to questions about the duration of that symptom, I conclude that they resolved no later than two years after the accident. In Hill v. Murray, 2014 BCSC 1528, Justice Macaulay specifically described the lay witness evidence as impressive and helpful. The medical evidence was based mainly on subjective and invisible symptoms, but Justice Macaulay was persuaded by the evidence from the Plaintiff s lay witness to conclude an mtbi occurred: [73] The evidence of family members, friends and associates who Ms. Hill relies on to demonstrate the effects of the accident on her physical well-being, cognition and emotional state is impressive and helpful. Ms. Hill s contention that she suffered a concussion or mild traumatic brain injury ( MTBI ) as a result of the accident relies heavily on her reporting to various doctors and therapists largely invisible symptoms such as pain, partial amnesia, forgetfulness, dizziness, balance issues and fatigability. Leaving aside questions of causation, the evidence discussed below satisfies me that others noticed Ms. Hill having problems of the type that she described after the accident and continuing to the time of trial. Counsel has adapted to this judicial approach and has begun utilizing a large number of lay witnesses to help demonstrate mtbi by highlighting the changes in the Plaintiff. In Curtis v. MacFarlane, 2014 BCSC 1138, the Plaintiff called ten lay witnesses to provide evidence on the changes in the Plaintiff since the motor vehicle accident. B. Different Causes for Symptoms The symptoms from mtbi overlaps significantly with symptoms from other diagnoses such as PTSD and substance abuse. Defence counsel has been using a strategy to attribute the symptoms to alternative causes to avoid a determination of mtbi. In Drodge v. Kozak, 2011 BCSC 1316, as a result of the motor vehicle accident, the Plaintiff suffered headaches and problems with concentration, memory, directions, and basic arithmetic. The Plaintiff failed to accumulate enough evidence to demonstrate an mtbi. From this case, it appears like that the judiciary treats mtbi similarly to a scale. With the increased weight on lay witness evidence for mtbi cases, Plaintiff counsel should attempt to compile as much subjective evidence as possible to combat defence counsel s attribution of the symptoms to other causes. In Gilbert, Justice Dixon acknowledged the difficulty when distinguishing symptoms of mtbi with symptoms of substance abuse: [148] To complicate matters further, substance abuse may produce problems similar to those caused by traumatic brain injury. For example, memory loss, poor motivation and emotional dysregulation may also be associated with chronic substance abuse. In addition, substance abuse is itself a risk for brain injured individuals. As noted by Dr. Travlos, a physiatrist, reduced inhibition and increased impulsivity caused by traumatic brain injury may accelerate or accentuate alcohol and drug abuse. It appears that substance abuse can create an almost insurmountable barrier to a finding of mtbi. It is difficult to differentiate the symptoms and effectively attribute it to a specific cause. Experts are in a similar position and can simply speculate as to which cause is more likely. This once again brings greater emphasis on lay witnesses to provide a detailed account of the changes since the accident. However, this may only be helpful if the substance abuse is constant pre-accident and post-accident.

8 3.1.7 IV. Conclusion The field of mtbi is still being explored scientifically and judicially. The courts are unpredictable in their determination of mtbi cases due to the usual lack of determinative medical evidence. The heavy reliance on lay witnesses will likely continue until medical developments can aid the court s analysis. The unpredictability is of great concern in mtbi because of the financial risk involved. Taking these cases to trial usually involve multiple experts and vast amounts of evidence. The investment required from counsel is daunting, especially with the significant risk involved. Therefore, determining whether to represent a client and pursue a claim is of the greatest importance.

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