Mild Traumatic Brain Injuries: Proving the Permanence of the Condition

• Jurisdiction: United States,Federal
• Citation: Vol. 1 No. 3
• Publication year: 2021
• topic: Health Law,Personal Injury Law

Bruce H. Stern ^*

Abstract: Traumatic brain injury is a major cause of death and disability in the United States, sending some 2.8 million people to the emergency room. While the majority, 87 percent, are treated and sent home, many do not recover and nearly 60,000 die annually, according to a CDC report to Congress in 2015. The issue made headlines when litigation was initiated on behalf of professional football and hockey players, as well as college athletes. Mild traumatic brain injury sufferers show symptoms such as headaches, dizziness, fatigue, anxiety, depression, irritability, and personality changes, according to the American College of Emergency Physicians, conditions that continue for several months in 62 percent of cases. This article discusses recent studies and how to attack the myth of complete recovery in litigation.

While the majority of patients who sustain a mild traumatic brain injury (mTBI) go on to full recovery, a subset have lifelong permanent sequelae. Nevertheless, in neurolaw litigation most defense doctors serving as expert witnesses, refuse to acknowledge this, and maintain that patients who sustain mTBI, all recover in three-to-six months. This article will demonstrate the fallacy of that opinion and hopefully put it to rest.

Definition of Mild Traumatic Brain Injury

While there exist numerous definitions of mTBI, ¹ the most widely accepted version was developed by the American Congress of Rehabilitation in 1993. ² Here is the ACR's definition of an mTBI sufferer, including reference to the Glasgow Coma Scale, the widely accepted measure of a brain-injured patient's level of consciousness:

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"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."

The definition notes that one need not strike one's head as the acceleration-deceleration forces encountered in a motor vehicle crash are sufficient to cause traumatic brain damage. The injury may cause physical, cognitive, and behavioral symptomatology.

Mild Traumatic Brain Injury May Be Permanent

If one were to accept the defense contention that mTBI is a condition of short duration with minimal symptomatology, one must question why it has been the subject of so much research. Or why Thomas W. McAllister, M.D., the Albert Eugene Sterne Professor and Chairman, Indiana University School of Medicine Department of Psychiatry, declared mTBI to be a significant health problem in society. ³ Nationally recognized neuropsychologist Ron Ruff described mTBI survivors as the miserable minority ⁴ and mTBI has been described as a "silent epidemic." ⁵ This hardly appears to be a trivial injury with a relatively quick recovery.

Before the 1980s, conventional wisdom held that everyone who sustained an mTBI got better. However, in 1981, in their seminal work, researchers at the University of Virginia studied the effects of mTBI at three months post-injury. The researchers studied 538 patients who had sustained minor head trauma defined as a history of loss of consciousness of 20 minutes or less, a Glasgow Coma Score of 13 to 15 and hospitalization not exceeding 48 hours. The researchers concluded, "the most striking observations of these studies are the high rates of morbidity and unemployment in patients three months after a seemingly insignificant head injury and the evidence that many of these patients may have, in fact, suffered organic brain damage." ⁶

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In a 1996 paper, Michael Alexander, in a "views and review" article, coined the term "persistent post-concussion syndrome." He estimated that approximately 15 percent of those with mTBI would still be symptomatic at one year. ⁷ For years this became the accepted medical viewpoint by clinicians.

Recent studies researching the outcome from mTBI demonstrate a growing acknowledgment that not everyone gets better and the percentage of those who do not is much greater than earlier recognized. Graham Teasdale and his colleagues in Scotland have been conducting a longitudinal study of patients who sustained mild, moderate, and severe TBI for more than 14 years. In their first paper, they researched the effects of disability following TBI at one year post-injury. ⁸ Their hypothesis was those with more severe brain injury would have higher levels of disability. However, they found that the incidence of disability was higher than expected and similar to that of patients who had sustained more severe brain injury.

In a follow-up paper examining disability at 5-7 years, they noted that for many patients the life-altering symptoms of mTBI never go away. ⁹ They wrote, "admission to hospital, even after what was judged conventionally to be a minor head injury, was followed 5-7 years later by disability in a high proportion of survivors.

In their paper, "Disability in Young People and Adults After Head Injury: 12-14-Year Follow-up of a Prospective Cohort," McMillan et al. wrote: "There are few previous studies of outcome 10-15 years after an injury against which these findings can be set. [Jennie Ponsford] et al. reported 10-12 year outcome in a...