June 16, 2009
By: David K. Jaffe
The Challenges of Recognizing & Proving Invisible Injuries
Brain injury cases pose difficult challenges. Many times, brain damage is not obvious or immediately apparent in its victim, which is why brain damage is often referred to as an "invisible injury." Even when a plaintiff has a very serious brain injury, jurors may not accept its existence, much less appreciate its impact as a significant, life-altering injury.
For brain injury survivors and their loved ones, however, a brain injury has far-reaching and catastrophic consequences. Brain injuries affect a survivor's temperament and the way the survivor processes and responds to information. A brain injury survivor may be fully capable of having a coherent and seemingly articulate conversation about a specific subject, even when the subject requires specific recall of past events. The injured person, however, may be entirely unable to perform multiple tasks at the same time.
Similarly, one of the inherent difficulties in proving a case involving a Traumatic Brain Injury, Post Traumatic Stress Disorder (PTSD), or depression is that trial counsel is faced with proving an injury that the jury cannot see. The jury needs to grasp and be convinced that is invisible injury is real.
In order to be able to prove traumatic brain injuries, PTSD and depression in court, you must get an understanding of the client before the trauma. The post-injury plaintiff is frequently a different person from the pre-injury plaintiff as psychological injuries such as PTSD and depression can cause physical, cognitive, social and vocational changes for a short time period or permanently. By getting to know the pre-injury plaintiff, you will be able to assess how dramatic the changes have been and thus what witnesses you need to call to prove to the jury how your client's live has changed.
Not only is it difficult for the ordinary juror to perceive the injury in the brain trauma case, but there often is an absence of any objective medical proof of the injury. Many brain injuries do not show up on CT scans, MRI or other imaging commonly used by hospitals and physicians. Some physicians hesitate to diagnose a brain injury unless there is report of loss of consciousness as a result of the incident.
Many brain injuries are never diagnosed and others are diagnosed long after the incident. Jurors thus may be suspicious about the legitimacy of the brain injury claim. Additionally, because of the lack of objective evidence, physicians are often uncomfortable stating their opinions that a person is profoundly disabled due to a brain injury
To make matters worse, many brain damage survivors suffer serious brain damage from an impact that seems to be minor, and did little damage to the car. Even "mild" brain injury can be devastating, and affect every aspect of a person's life. Brain damage is also permanent. Although coping mechanisms can be developed, the injury will never heal.
A brain damaged client faces a serious risk that the jury simply will not appreciate the severity of her injury. Testimony on the witness stand is not always the best way to demonstrate a serious brain injury. The brain damaged plaintiff often makes a poor witness, whose testimony adds little to the value of a case. It is better to use lay witness to describe the effects of the brain injury. Lay witnesses can testify on the following areas:
- Behavioral changes
- Sleep disturbances; insomnia
- Short and long term memory loss
- Difficulties multi-tasking
- Concentration and attention loss
- Anger management and loss of patience issues
- Taste and smell
- Hearing loss or impairment
- Motor skills
- Speech and expression difficulties
- Emotional difficulties
Educate the jury as to the nature of the invisible injury, the mechanics of the injury and the diagnostic criteria. The Diagnostic Manual - DSM, published by the American Psychiatric Association contains diagnostic criteria for PTSD and Depression/ Major Depressive Episodes.
Many of the symptoms of mild traumatic brain injury are subtle. These injuries can avoid detection on CT Scans and MRIs. It is not uncommon for them to go undiagnosed. Sometimes you can get some objective findings on PET scans which can be particularly demonstrative. PET studies look at how the brain works. They involve an intravenous injection of radioactive tracers to measure cellular/tissue changes based on glucose metabolism in different areas of the brain as different tasks are performed.
Explain to the jury as to the characteristic symptoms of PTSD and depression so that the jurors can better understand that these psychological injuries that they cannot see are as real as a physical injury. PTSD, for example, is a psychological injury that you cannot see just by looking at the person.
In order for the jury to make the leap of faith and believe something that they cannot see was caused by the defendant's negligence, you must establish credibility - of trial counsel, the client and the treating physicians. Witnesses from family, friend, and co-workers can bolster the credibility of your client. The witnesses can demonstrate how the disorder affects your client's daily life.
It is of utmost importance to believe in your case, because that will enable you to convince the jury.
Brain Injury Association of Connecticut (BIAC): www.biact.org
BIAC is a nonprofit organization dedicated to improving the lives of brain injury survivors in Connecticut and increasing public awareness about brain injury prevention and treatment.
National Traumatic Brain Injury Litigation Group of the American Association for Justice