Litigating a Brain Injury Case: Overcoming the term “Mild”

December 28, 2016 | Attorney, Matthew Dolman
Litigating a Brain Injury Case: Overcoming the term “Mild”

A traumatic brain injury (TBI) of any sort can be devastating to a person's life by leaving them with physical, emotional, and cognitive changes and deficiencies. Some TBIs are severe in nature, with diagnostics and symptoms obviously present. But the brain is complicated and little-understood organ. For this reason, even brain trauma that is classified as “mild” or “minor” may have a significant impact on how a person function. The so-called mild traumatic brain injuries (mTBI) cannot always be seen using standard imaging devices such as an MRI or CT scan. But just because it cannot be seen on an image of the brain, and just because the person is not obviously “out of it” doesn't mean that the injury is not significantly impacting their life.

Mild TBI Symptoms

A traumatic brain injury is often classified as mild” or “minor” if the victim only loses consciousness and/or experiences confusion and disorientation for less than 30 minutes (for example, a concussion). Likewise, they are often put into this category if an MRI or CT scans appears “normal”. When these indicators are present, some physicians tend to overlook the injury as minor, and provide very little follow up to ensure that there is not a more serious issue.

Other Names for Mild TBI:

  • Concussion
  • Minor head trauma
  • Minor TBI
  • Minor brain injury
  • Minor head injury

Mild Traumatic Brain Injuries are the most prevalent type of TBI, even though they are often missed during the initial examination. And although the initial indicators like loss of consciousness and disorientation to not last long, more persistent symptoms can. In fact, 15% of people with an mTBI have symptoms that last one year or more. These lingering symptoms are a result of something called post-concussive syndrome. And although these injuries cannot be seen, at least not easily, they effects can be devastating.

Common Symptoms of Mild TBI

  • Fatigue
  • Headaches
  • Memory Loss
  • Visual Disturbances
  • Sleep Disturbances
  • Seizures
  • Poor Attention/ Trouble with Concentration
  • Feelings of Depression
  • Dizziness/Loss of Balance
  • Irritability/Emotional Disturbances

Victims of mTBI may also experience:

  • Nausea
  • Sensitivity to Light
  • Sensitivity to Sound
  • Loss of Smell
  • Mood Changes/Swings
  • Confusion
  • Feeling Lost
  • Delayed Thinking

These symptoms may not appear until days or even weeks after the initial injury, which is a contributing factor to the missed diagnosis. This often due to the symptoms' subtleness and lack of obvious issues on the scans. Even the family members, friends, and doctors around an mTBI victim may miss the signs.

Brain Injuries Are Not Always Obvious

TBIs do not always manifest in obvious ways. Even though there is a list of symptoms above, the injury is not always easy to spot. Sometimes a person who receives a blow to the head might feel nauseas and can't stand to be in bright light. Sometimes they may experience severe mood changes, but have no other symptoms. This is a major reason why the symptomatology of an mTBI is so difficult to illustrate. These injuries may differ than those caused by severe head trauma, but they can be debilitating all the same.

Recovering Financially from an mTBI

So how does an accident victim who has suffered a “mild” brain injury due to negligence recover for their damage?

The short answer is: with a thorough case.

There is no sugarcoating that this type of TBI is significantly harder to prove to a jury of six strangers than a severe brain injury. If diagnostic imagining doesn't prove the damage, then it's up to the victim's attorney to demonstrate that the symptoms and changes to the victim can be attributed to the patient's mTBI. This can be particularly difficult to sell to jurors, especially if the impact that caused the TBI appears minor (such as a moderate to minimal auto accident or a seemingly minor bump to the head during a slip and fall).

The key to overcoming this challenge and recovering financially is to present a well-organized, comprehensive case complete with the right evidence, witnesses, and attorney expertise. In order to achieve this, a few things need to be in order.

First, the victim must appear credible, otherwise the entire case may seem like a ruse to the insurance company, and inevitably, to the jurors involved. Ever since big corporations and insurance companies ran a smear campaign to make America appear like a “litigious society”, jurors tend to be skeptical if they cannot see obvious signs of what they consider an injury to be.

Another important component to the case is what we call “Before and After Witnesses”. This type of witness is the most vital component to receiving compensation for a “minor” brain injury case. A before and after' witness is an individual who knew the plaintiff before the injury and after the injury. That way, they can attest to any personality changes, mood changes, personality changes, and any other issues that may have arisen following the purported incident. Issues like the ability to remain on task, concentration, memory, irritability, and changes in personality are be best illustrated by someone with first-hand knowledge of how the TBI victim acted before they were injured and how they act now.

Finally, the jury will need to hear from a healthcare professional about the presence of the injury and how it has/could affect the victim. These testifying medical professionals must come across as reasonable, qualified, and credible. Having credible doctors and specialists are paramount in litigating any brain injury case, especially when the injury can't be seen on an MRI or CT scan. 

Overcoming Biases of Brain Injury Cases

A mild traumatic brain injury is often referred to as “the invisible injury” since the victim often appears completely normal. Our civil justice system is particularly hard on injury victims who claim to suffer from injuries that one cannot easily see and experience. When someone has a black eye and a broken arm, the jury can see it. When someone can no longer feed himself or herself, the jury understands that there has been an effect on their life. But if these things are not blatantly obvious, it can make things a little difficult.

Further, the general public has been inundated with a well-developed message from corporations and the insurance industry telling them that personal injury lawsuits are out of control.  Because of this, it's not uncommon for members of a jury to display a bias against personal injury victims and their cases.

When a mild traumatic brain injury (MTBI) case is presented at trial, insurance defense lawyers will often focus on the so-called “normal appearance of the victim. They will openly scrutinize this nearly unrelated point while minimizing any clinical evidence that shows cognitive deficits. Terms, such as malingerers (which means time-waster) are thrown around in hopes that the jury or a member of the jury will begin to take issue with the claims presented by the plaintiff.  The goal of the defense attorney is to invalidate the injury claim, whether it's valid or not.

Additionally, many present day biases concerning traumatic brain injuries are perpetuated by some in the medical profession. A number of physicians rely on antiquated information in determining the existence of a brain injury or lack thereof.  For instance, it is not uncommon for physicians to rule out a traumatic brain injury based solely on a negative MRI or CT-scan of the brain.  However, oftentimes these diagnostic tests are not sensitive or specific enough to detect what may amount to a microscopic lesion of the brain. For this, a different test is needed; but the doctor must care to order it.

Proving the Invisible Injury through Symptoms

Because standard imaging studies only show the structure of the brain, something more is need to seek out an mTBI. This is because the structure of a person's brain can appear perfectly normal in a scan, while in actuality, brain function is being severely hindered by an unseen injury.

What is needed instead is called a functional brain scan, such as PET and SPECT scans. These scans specifically show function (or abnormal function), rather than just the structure of a brain. A brain positron emission tomography (PET) scan uses a radioactive substance called a tracer to look for any injury in the brain. It shows how the brain and its tissues are working or not working.

Using these more active types of scan, an experienced brain injury attorney can use them to corroborate the existence of a TBI while supplementing it by evidence of TBI-related cognitive, emotional, and/or physical symptoms.

Dolman Law Group Accident Injury Lawyers, PA

An experienced brain injury attorney will use the clinical proof from a brain scan and combine it with the expert and first-hand testimony of witnesses. This way, the jury can look to the functional scan to see abnormalities in how the persons brain is functioning, hear from people who are close to the TBI victim and hear how they've changed, and hear expert discovery from an experienced brain doctor about the effects of the victim's specific injury. It's a winning recipe.

The entire process of starting a TBI case to setting it up for trial can be confusing to those who do not do it routinely.  Hiring an effective and experienced attorney that is capable of educating the jury and who knows how to properly present a brain injury case can be the difference in recovering for your injuries. Ensure that the attorney working for you knows how to win a mild brain injury case and takes them seriously. If you or someone close to you is suffering from cognitive, emotional, or physical symptoms of a TBI after an accident, call a brain injury lawyer at the Dolman Law Group Accident Injury Lawyers, PA today for a free case evaluation and consultation. We look forward to helping you.

Dolman Law Group Accident Injury Lawyers, PA
800 North Belcher Road
Clearwater, FL 33765

(727) 451-6900



Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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