The Most Common Defense in Mild Traumatic Brain Injury Cases

We see the most common defense in mild traumatic brain injury cases time and time again. Namely, the CT and MRI brain scans do not reveal any abnormality, or trauma related injuries, in the Plaintiff’s brain. Therefore there is no serious or permanent brain injury suffered by Plaintiff. After a concussion, the medical protocol is to perform imaging of the brain to determine if there is any bleeding that requires emergency medical intervention. For instance, take the case of Natasha Richardson. She suffered a concussion that led to an epidural hematoma. This required emergent medical treatment to alleviate the pressure buildup in the brain that follows such an injury since there is no space in the brain for the excess blood to be stored. Such a hematoma would be readily visible in a CT scan, which is the most common brain imaging scan done following a concussion. While a CT or MRI scan may reveal bleeds and other gross abnormalities, neither will rule out axonal damage or other damage to the brain such as Chronic Traumatic Encephalopathy (CTE).

The insurance companies and their lawyers continue to perpetuate this false and now outdated interpretation of brain scans following mild traumatic brain injury cases.

Most, if not all, leading brain injury experts agree that normal brain scans, from a CT or MRI, do not eliminate the possibility of a serious brain injury.
Researchers of Chronic Traumatic Encephalopathy (CTE) commonly find CTE where brain scans from MRIs and CTs revealed no evidence of brain damage. Yet, other, more detailed, testing is available. Diffusion Tensor Imaging (DTI) studies routinely reveal evidence of axonal damage, also known as shearing white matter injury, after MRI and CT scans showed no injury to the brain.

The understanding that serious brain injuries occur despite the normal radiological findings, from MRI and CT scans, is widely known. This is not information available only to an elite and small circle of scientist and doctors, but is well circulated in the news, medical journals and scientific publications for the past several years. Yet, the insurance companies seek to perpetuate the old myth. Their lawyers retain the same usual suspects of “experts” over and over again to mislead our juries using outdated and false medical and scientific information. This is tantamount to perpetuating a fraud upon the court.

This past Sunday, 60 Minutes aired a feature interview of Ann McKee, MD, a leading neuropathologist testing brains for Chronic Traumatic Encephalopathy (CTE), “which so far can only be confirmed by brain autopsies.” CTE has been discovered in brains of athletes and veterans despite normal findings on MRI and CT scans. Dr. McKee calls CTE an invisible injury since “the effects on the brain that lead to CTE are not readily seen on images.”

When a person’s head is subject to sudden movement, the brain can be injured even where there is no direct trauma to the brain. A whiplash injury to the spine can cause the brain to move and slam into the inside of the skull leading to axonal damage as well as coup contra coup injury. Axons, which are known as white matter, are often shorn (hence, white matter shearing injury or Diffuse Axonal Injury (“DAI”) due to the sudden movement of the brain, which stretches the delicate tissue of the brain. Unlike the shape and weight of an object that is designed so that its entire mass moves at the same speed (like a golf ball), the brain is an odd shaped organ that has no uniformity in weight and has a density slightly firmer than tofu. Hence when the brain is caused to move, different parts of the brain move at different speeds having a shearing effect.

Axons are the most fragile part of the brain due to their shape, size, and length. Axons are microscopically thin and long, and are so small that ten (10) axons can fit into one capillary of the brain. Capillaries are blood vessels that are typically 5-10 micrometers in diameter. (Capillaries are so small that red blood cells can only travel through them in single file.) Yet, despite their diminutive size, axons serve as the crucial neuro-transmission pathways of the brain, providing connections for signals to travel and communicate throughout the brain.

Because axons are too small to image with MRI and CT scans, these common scans cannot detect axonal damage. At this point, only Diffusion Tensor Imaging (DTI) of the brain can detect axonal damage. While this information is well known and undeniable in the scientific and medical communities, the insurance companies and their “experts” remain locked in time as to their outdated understanding that brain injuries can occur despite normal findings on brain MRI and CT scans. There is a nefarious reason for this. They can prevent DTIs from being performed by refusing to pay for this modern and available up to date medical testing. In so refusing, they can avoid responsibility when people suffer life long debilitating brain injuries by making them difficult to prove without such testing.


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