The “Show Me” Jury Challenge | Proving TBI to a jury
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.
For example, let’s say that the injured person can still walk and talk and at first blush appears normal. In fact, many people with brain injuries find, after getting over the immediate trauma of physical injuries in an accident, that they “just don’t feel like themselves.” They have problems like insomnia, fatigue, and dizziness, ringing in the ears, nausea, irritability, poor concentration, light sensitivity, or loss of smell or taste. So, while they can still function, it takes that much longer to get anything done and by mid-afternoon they are spent.
Sometimes these problems get worse instead of better—sometimes they go away and sometimes they do not. However, when conventional MRIs and CT Scans are normal but the injured is not, friends, family and employers get frustrated that things are not improving and question whether or not the injured person is even trying. Depression begins to set in, making everything even worse.
Making Progress in Proving “Invisible” Brain Injuries
I presented this scenario in an article titled, “Proving a “Mild” Traumatic Brain Injury: A complex but not Longer Impossible Task,” which was first published in the Spring 2012 issue of the Vermont Bar Journal and more recently distributed by “The Research Network on Law and Neuroscience,” a program operated by faculty of the Vanderbilt University and supported by the John D. and Catherine T. MacArthur Foundation. The article outlines three areas of development that have made proving a brain injury (to a jury) a little easier than in the past.
(1) Research on brain-injuries-and-veterans conducted by the Department of Defense
(2) Research on brain-injuries-and-athletes conducted by the Center for the Study of Traumatic Encephalopathy (and other groups)
(3) Ongoing study conducted by the Centers for Disease Control and Prevention (CDC), and publications issued by the CDC that address many common misperceptions concerning TBI, especially “mild” TBI
As a result of these scientific developments, we are learning new ways to diagnose the injury, and the public is exposed to learning more about the severe consequences an “invisible” injury can cause.
The future holds great promise for those who are struggling with invisible, debilitating brain injuries. I will be closely monitoring the progress of these studies and will report on this blog the new developments and how we can use them to the benefit of those who suffer from “invisible” brain injuries—in both their treatment and the courtroom. Meanwhile, feel free to contact me directly with your questions.