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10 Things You Need to Know About Brain Injury Litigation


Unless there is objective evidence of brain injury on MRI or CT Scan, the insurance companies assume the individual is faking their injuries or the person has psychological problems that pre-existed the accident. The first order of business is to "objectify" as best as possible our clients' injuries. A patient's condition will be the focal point of any case. We know that juries are sympathetic to brain injuries that can be proved. Also, know that in pursuing a brain injury claim you will be opening up your entire life history to examination. Grade school records, medical records from childhood and anything else through the years that the insurance companies can obtain is fair game. Psychological and psychiatric records are obtainable and will be obtained.

Remember that many of these difficulties can be overcome and dealt with by an experienced brain injury litigation attorney.


In the past 20 years we have learned a great deal about brain injury, especially that the brain is more vulnerable to injury than we previous thought. It was once thought that a person who did not lose consciousness could not have experienced a brain injury. We now know that this is not the case. Likewise, it was previously felt that no one with a normal MRI or CT Scan could have suffered a permanent brain injury. That is no longer true. However, proving a brain injury is the best and quickest route to winning or settling a brain injury case. In that regard, we are fortunate that startling new sophisticated technologies have come forth in the past ten years which are more sensitive than MRIs or CT Scans in showing objective brain injury.

These are:

  • MRI/DTI: This test done on a normal MRI machine with special software known as "Diffusion Tensor Imaging" and is particularly sensitive to damages in the white matter tracts of the brain. White matter is in the interior of the brain and serves like telegraph wires which connect different parts or lobes of the brain's gray matter. When these are injured, communication is diminished and impairment results. DTI tracks the movement of water molecules within white matter fibers. The results have been correlated to outcome, neuropsychological testing, and other factors consistent with known medical science.
  • MRI/SWI: Another speciality version of the MRI is known as "susceptibility weighted imaging or SWI". This allows the radiologist to see very tiny bleeds in the brain known as micro hemorrhages. These can arise when the brain is shaken and are not normally seen on plain MRIs. The SWI can visualize iron molecules left over from tiny brain bleeds after a trauma. After a high speed collision there could be hundreds of these tiny micro hemorrhages in a client's brain.
  • MRI/MRS: this technology known as "spectroscopy" looks at the balance and ratio of certain molecules in the brain matter. If the molecules are out of balance because of trauma, a MRS will pick up the imbalance. This technology is not widely available at the present time, but is gaining acceptance. (Similarly, "biomarkers" of the presence of traumatic brain injury are now known to get into the blood stream immediately after a trauma.


Recovery from a traumatic brain injury can be straightforward or complicated. Several things you should know are:

  • A diagnosis of "mild traumatic brain injury" (loss of consciousness if any) is less than 30 minutes with limited amnesia with normal MRI or CT Scan.) It is generally thought that 80% of individuals who suffer this type of brain injury will make a full recovery within six weeks. The symptoms of brain injury can found on the Symptoms of Brain Injury page of this website. However, a person with a pre-existing brain injury, pre-existing psychological or psychiatric difficulties, or pre-existing learning difficulties may have a more difficult time recovering from even a mild traumatic brain injury. Others without these conditions may also fail to recover.
  • Persons with TBI often have what is known as a "lack of self-awareness." This means the individual does not recognize their limitation and changes since the time of the accident and will often say "I'm fine." As an example, famous Supreme Court Justice William O. Douglas, after suffering a stroke, could not walk but invited lawyers to join him on a trip to climb mountains on repeated occasions. In the case of true lack of self awareness, friends and loved ones need to express their observations and concerns directly to health care providers and not rely upon the patient's reports.
  • Socializing out in the real world and/or returning to the workforce both involve confronting situations that are not confronted when someone is laying in bed or in their home recovering. Upon return to work or school, TBI victims discover problems handling the complex demands of the real world. The more intense and longer duration the rehabilitation, typically the better recovery. The window for effective rehabilitation closes six months after injury, so it needs to be taken care of quickly. In the cases of milder injuries, only the passage of time and keeping the mind as active as possible are effective:
    • Read as much as possible.
    • interact with people as much as possible.
    • If medically authorized, begin exercising as soon as humanly possible after the injury. Exercise is known to promote neurogeneration (the growing of new brain cells) in the brain. A complex and enriched environment leads to neuroregeneration as well.
  • Cognition recovery (thinking) occurs primarily in the first year after trauma, but can continue for up to two years. Coping skills can continue to allow for improvement thereafter. Motor recovery (movement, reflexes) can continue for up to ten years.


In the case of moderate or severe TBI with objective brain injuries, families should consider applying for social security disability immediately. If the patient recovers to the point of not needing such assistance, it can be stopped. However, the system is backed up and the application needs to be put in as soon as possible to avoid long periods without medical funding. Please see the how to apply for social security disability page for detailed instructions.


A frontal lobe is the most advanced part of our brain and is, unfortunately, the most vulnerable to injury. Often neurosurgeons and some neurologists do not look closely enough at patients to make the determination as to whether a frontal lobe injury has occurred, thinking that if they are walking and talking, they are okay. Frontal lobe injuries are subtle, but can be devastating. A person with this type of injury can:

  • Experience "disinhibition", which means any thought becomes speech regardless of content, and which exhibits itself as inappropriate comments in conversations. Disinhibition can lead to increased addiction problems, violence or social awkwardness.
  • Someone's IQ can be unaffected by a TBI, but other parts of the brain that "pilot" or guide ones brainpower can be messed up. Decision-making and complex social interactions can cause major problems in one's life and career.
  • Our prisons, homeless shelters and psychiatric wards are full of people who have suffered undiagnosed or untreated frontal lobe injuries.
  • Divorce, addiction, depression and anxiety rates are elevated with frontal lobe injuries.


Cognitive reserve is simply the amount of brain matter that you go through life with which protects you against dementia or Alzheimer's disease or symptoms of a future brain injury. If you lose brain cells, you lose cognitive reserve. Another type of cognitive reserve is found in persons who have a high IQ or high job status. If these are lost, then cognitive reserve against future dementia is lost as well. Traumatic brain injury can adversely affect cognitive reserve in both instances. A young person suffering a moderate to severe brain injury will face both types of lessening of cognitive reserve in their lifetime and therefore will be more likely to suffer dementia or Alzheimer's and to suffer it at an earlier age.

Most attorneys don't understand the concept of cognitive reserve. Make sure your attorney is aware of and can explain to the insurance company about cognitive reserve.

(Read more about Cognitive Reserve)

This important new finding was fully explained in a paper written by Attorney Woody Igou for publication and delivery to other attorneys at the North American Brain Injury Society Conference 2011.


During a recovery phase be aware that the insurance company will try to contact the patient through the adjuster. They will likely have this conversation recorded. If there is a later claim for a brain injury, they will try to use this conversation as proof "that there was nothing wrong with the individual." This is nonsense since most people with traumatic brain injury can speak and speak normally. The difficulties they are having is often not particularly manifested in speech.

The insurance company can decide to pick up your trash and go through it. They will be looking for evidence of illicit drug use, use of medication or anything else they can get their hands on. Though we have the right to privacy in this country, many courts have held that there is no right to privacy of trash that is put out on the curb. Be aware of this. In one case the investigator picked up trash, found shredded documents and reconstructed them. They were letters from the client to their own attorney. The court found there was no right of privacy or attorney-client privilege!

Make sure you obtain photographs of the vehicle you were in if you were in a car accident. Also, make sure the vehicle will not be sold or crushed. The insurance companies will often have the vehicle taken from the lot and crushed in quick fashion. If there has been a blowout or other mechanical failure, it is extremely important that the object that failed be preserved.

Make sure you have plenty of "before/after" witnesses. These are generally people not from your own family, but who have known you before and after your injury and can testify that there have been changes in you over time. People from a church, business or school are best. These witnesses can often overcome ambiguities or difficulties found in a client's medical records. Juries seem to believe honest before/after witnesses, often more than hired experts.

All social media engagement by you or your family (Facebook, Twitter, blog postings or other sites) will be examined by the insurance company. Any post-accident photos or postings contrary to your case will be used against you. So always be truthful.


It is amazing how many physicians and healthcare facilities associated with traumatic brain injury fall far short of their duties. Many older physicians, even neurologists, were trained that people with normal MRIs and CT Scans who did not have a brain bleed are fine. They are not aware of the latest research or the latest tools to look at the brain. It is highly possible that they do not know anything about cognitive reserve or other new discoveries. Often, medical providers will not take your case if they know you were injured in a car accident. Those who will see you will be dismissive and will assume that you are trying to pull one over on someone for money.

These attitudes can have a devastating effect on your subsequent brain injury litigation. Poor reports, skepticism in a medical record or failures to make a proper referral to a specialist can all adversely affect your claim, through no fault of your own. If you are having any of these difficulties with your treating physicians, let your attorney know or contact us at braininjury.com.


Juries admire people who try hard, even if they fail. A person who sits at home for years awaiting trial, without even attempting to find work, is often punished by a jury. Of course, if the injury is severe, this may not be possible. Nothing is more effective than the testimony of a boss or co-worker describing the problems in the real world that led them to being fired. Working with rehab experts and/or worker's compensation professionals can help with this sometimes difficult problem.


Evidence from an accident or fall can disappear, sometimes within hours. Despite the horrors of confronting a TBI, family members should seek legal counsel ASAP if the circumstances indicate fault. Video surveillance cameras, for example, are everywhere to capture incidents, but they are often erased after 30 days. Medical issues are also time sensitive.

Insurance coverage, PIP coverage and rehabilitation fights with the hospital are common problems in the first week after an injury.