In August, 2013, the NFL announced that it had reached a $765 million dollar settlement of claims by more than 4,500 players alleging that they were suffering from long-term consequences of concussions that the NFL had known about for years, hid from players, and failed to minimize by establishing appropriate protocols for return to play. The alleged cover-up by the NFL, with co-conspirators in the medical community, was recently the subject of an extensively researched PBS Frontline special titled “League of Denial.”
By settling the players’ claims early in the litigation it appeared that the league would avoid further examination of what the league knew and when it knew about the long-term effects of concussion. However, several recent developments indicate that these issues will likely be examined further. The judge overseeing the litigation has appointed a “special master” to make recommendations concerning the settlement and the Brain Injury Association of America has petitioned to intervene in the litigation to make sure that the settlement takes proper account of the
“progressive physical, psychiatric and cognitive disease processes that are caused and/or accelerated by brain injury, but may not manifest in clinically significant symptoms on initial presentation.”
In a study published November 18, 2013 in Frontiers in Neurology, researchers from Penn and Baylor report that they have identified a blood biomarker – SNTF – that if found on the day of injury predicts with substantial accuracy both cognitive impairment persisting more than 3 months and the existence of abnormal brain imaging finding in the corpus callosum and uncinate fasciculus of the brain (using diffusion tensor imaging (DTI). Read More
One of the causes of the failure of clinical trials to successfully treat TBI, the authors contend, is the common classification of TBIs as “mild, moderate or severe.” These classifications do not incorporate newer insights and findings from diagnostic tools such as imaging and biomarkers and therefore do not promote “mechanistic targeting” for clinical trials. The authors support the transition to a more nuanced approach, a precise disease classification model that is based on the precise pathoanatomical and molecular features of the injury. Read More
Defense attorneys often cite “meta-analytic” reviews of neurological studies to make the argument that “mild” traumatic brain injuries (mTBIs) cause no lasting effect beyond three months post-injury. A “meta-analysis” involves a statistical study of multiple studies published in the literature.
Meta-analyses in mTBI are often used to show that persistent symptoms are “neurotic” rather than “organic”
Fortunately, it is generally agreed that the majority of people who suffer mTBIs, sometimes referred to as “concussions”, report full recovery from symptoms within three months of the injury – in fact many recover much faster. A great deal of research over the past few years has focused on the minority of people who do not fully recover within three months, described as having a “persistent post-concussion symptoms (PCS).” These patients are sometimes referred to as the “miserable minority.” The “meta-analyses” are often cited as demonstrating that changes in performance after three months have “limited statistical and clinical significance;” in other words, that persistent symptoms must be psychological or “neurotic” rather than “organic” or neurologic. Read More
In July, 2013 the Defense Centers of Excellence, serving the United States Department of Defense, issued important new guidelines for neuroimaging following “mild” traumatic brain injury. The guidelines begin with the well-accepted understanding that neuroimaging is not typically included in the diagnosis of mild traumatic brain injury(“mTBI”) because only 10-15% of people who sustain trauma resulting in mTBI will have an acute brain lesion on CT (computed tomography) scans. “The lack of positive imaging findings,” the guidelines emphasize, “does not invalidate a diagnosis of mTBI.”
What is significant about the guidelines is that they recommend imaging in mTBI cases where the victim has “new, persistent or worsening symptoms” 90 days or more following the injury (described as the “chronic stage.”) Read More
Concussion, or mild traumatic brain injury (TBI), typically produces no gross pathology, such as hemorrhage or abnormalities, that can be seen on conventional CT scans of the brain. It does cause rapid-onset neurophysiological and neurological dysfunction that in most patients resolves spontaneously over a fairly short period of time. Studies have shown, however, that approximately 15% of individuals with mild TBI develop persistent cognitive dysfunction and other symptoms. Researchers are starting to make progress on proving mild traumatic brain injury using the biomarkers that underlie such symptoms. Read More
In the study, NYU medical school researchers measured changes in global and regional brain volume over a one year period in 30 patients with “mild” traumatic brain injuries and typical post-injury symptoms including anxiety, depression and fatigue, and other symptoms such as headache, dizziness and perceived cognitive problems.
We live in a world of “show me” juries, programmed to believe that most people bringing personal injury claims to trial are trying to get something for nothing. They want to be convincingly shown that a real injury exists—that the injured person can prove a brain injury or other debilitating condition.
Proving a Mild Traumatic Brain Injury to a Jury
For example, some brain injuries produce bleeding in the brain that clearly shows up on conventional diagnostic images like CT scans—computerized tomography that combines a series of X-ray views taken from many different angles and processed by a computer to create cross-sectional images of the bones and soft tissues inside your body—and/or MRIs—magnetic resonance imaging that uses a magnetic field and radio waves to create detailed images of the organs and tissues within your body—or, that produce visible neurological signs like seizures, visual problems, speech problems, or motor problems.
Proving a brain injury to a jury where visible evidence is available is not difficult. However, we know that many mild traumatic brain injuries are “invisible” to these standard tests, yet are serious enough to greatly impact quality of life. In these cases, the challenge is to help the jury understand those long-term consequences, even when the injury is not visible.
