Traumatic Brain Injury and the fight against ‘Malingering’
I’m looking at a diagram of the human brain. In this picture it looks like a very wrinkly baseball mitt, cuddled up in the hard shell of skull. It is swaddled in three membranes all named different kinds of ‘mater’ (meaning ‘mother’ – pia: tender mother, dura: hard mother, between them the ‘arachnoid mater’: spidery mother?). The whole thing is perched on such a small neck, surely not fit for this burden.
And that’s why no membranous mothers are enough to fully protect the brain. Each year in this country alone, a million brains are jolted, bruised, wounded. Half of all those injuries happen in car accidents. At its mildest, this looks like a concussion (pain in the head or neck, nausea, ear-ringing, feeling dizzy or tired). Many of my clients have had it even worse, with loss of consciousness, convulsions or seizures, slurred speech and dilated eye pupils. Many of them also suffer afterward from changes in their behavior, cognition, memory, and emotions, along with Post-Traumatic Stress Disorder.
As I’ve learned from my clients, Traumatic Brain Injury (TBI) is one of the most frightening injuries that can happen. But usually it leaves behind no broken bones or tell-tale scars. That’s why the modern PI attorney’s challenge is to become a crack ‘neurolawyer,’ familiar with clients’ vulnerable brains — and with the legal arguments that will bring some remedy for damage done.
Brain trauma litigation is important and lucrative. But it comes with its own set of challenges. Here are five of the biggest, and some tips for moving through them in your own neurolawsuits.
You seem fine to me!
There’s really nothing wrong with you.
Often these are the messages heard by people suffering from brain injuries. I’ve also seen injured people give these messages to themselves, insisting that they’re perfectly healthy while their family and friends worry about changes in their mood and behavior.
Traumatic brain injuries can also be masked by medication, which their doctors may be prescribing for other acute injuries. Changes in cognition aren’t noticed until weeks or months later, as the other injuries improve. For others, difficulty concentrating or understanding complex tasks doesn’t arise until they’re back at work or school.
It would be wonderful if every client with TBI who came my way already had a knowledgeable professional caring for them and diagnosing their problems. But many times, injured people either can’t afford care or don’t know that their difficulties could be symptoms of TBI. Successful ‘neurolawyers’ should be familiar with the full range of symptomsassociated with TBI, some appearing immediately after the event and others taking days or weeks to manifest. Know when to urge your clients to seek professional neuropsychological help. Full psychological assessments and new imaging techniques such as Diffusion Tensor Imaging (DTI) can make some of the damage visible.
TBI diagnoses labels of ‘mild,’ ‘moderate,’ and ‘severe’ can be misleading, as they focus on the immediate trauma (how much time spent unconscious, how much bleeding, the immediate likelihood of death), rather than addressing long-term consequences. Someone with moderate or severe brain injury may be able to recover fully within a year, while someone with mild TBI could suffer debilitating effects far into the future. As the Mayo Clinic explains, “a mild injury to the brain is still a serious injury that requires prompt attention and an accurate diagnosis.”
Other invisible problems are those that will only surface far in the future. Survivors of TBI could develop seizures and other neurological difficulties decades in the future. As we’re seeing with brain injury lawsuits brought by NFL players, TBI can lead to the onset of Alzheimer’s disease and dementia. And since brain injuries are cumulative, an injury now will exacerbate any future injury. All of these currently-invisible risks should be considered when you’re seeking damages for a client with TBI. Incorporating vocational evaluations, as well as expert witnesses such as life-care planners and economists can help bring future considerations into a present estimate of damages.
Memory loss, disorientation, and confusion are symptoms of TBI. This means that in the immediate aftermath of a trauma, when the EMTs arrive, people who have the injury may not be able to give straight-forward reports on their experience.
If they have lost consciousness, they won’t know how much time has passed in that state; they probably have hazy or confused memories of the immediate lead-up to the accident. If the EMT asks “did you injure your head?” the injured person may respond with a shrug, an “I don’t know” or “I don’t think so.” They might have a similar answer when asked if they blacked out or lost consciousness. When an EMT marks down ‘no loss of consciousness’ on a patient’s paperwork, that information follows them through the medical system. When patients are confused or disoriented, but haven’t lost consciousness, often EMT’s won’t make note of their altered mental state at all.
Hopefully, someone suffering from TBI will quickly find a medical professional who can better uncover what they’ve been through. But many times it’s an attorney who recommends talking to a neuropsychologist to ascertain the injury. Though the patient’s memory of the event at this point may still be sharp, this lapsed time often doesn’t play well with jurors — and strengthens the challenge of ‘malingering’ charges, as I’ll address below.
The secret to overcoming this challenge is witnesses. If your client’s TBI is going to be an issue of debate because of confusion in your client’s early medical record or police report, you need a neuropsychologist on your expert witness list who can speak to the nuances and complications of Traumatic Brain Injury. But first: don’t forget lay witnesses. Quickly finding and interviewing everyone present on the scene can help flesh out the mental state of your client. Don’t forget the first responders who aren’t EMS personnel, such as volunteer firemen.
Many clients with TBI are wonderful to work with. But attorneys in this field should be aware that some symptoms of the injury can make your role particularly difficult. Damage to your client’s brain may make them aggressive, quick to anger, and incapable of controlling their impulses. They may develop fixed ideas about how the case should proceed, and remain impervious to your advice.
In dire situations, the family and friends of the injured person may wish to establish guardianship with someone else. But whatever happens, it’s important to retain patience and empathy (along with clear emotional boundaries) if you’re going to be working with clients suffering from TBI.
TBI diagnoses often come down to the word of the person suffering from them. That means your settlement or verdict comes down to the credibility of your client.
Let me say first that I believe everyone who has been injured through the fault of others deserves justice. If the lyingest of liars gets conked on the head by someone else, that liar deserves a lawyer and a day in court.
But while I’m working for a contingency fee for clients with a TBI, their credibility matters enormously. Investigate the history of your clients and potential clients. Even completely unrelated issues of past crimes, addictions to drugs or alcohol, or any history of deception can demolish a TBI claim. Obviously, someone who has flunked out of school has the same tender brains as the valedictorian: in a perfectly just world the two would get the same settlement. But outside of that thought experiment, financial success depends on attorneys doing their homework on client history, and either focusing on clients with more credibility, or at least preparing themselves for some harder fights (or lower settlements) when they bring on clients with spottier reputations.
A more systemic problem arises from the nature of the injury itself. As mentioned above, some behavioral problems can stem from the injury. They should help prove to a jury that your client deserves compensation — but an unsympathetic jury could find such a client less likeable and less credible. It is important that these symptoms, if exhibited, also be explained by an expert witness on TBI.
(The Big One): Malingering Claims
Bleeding or swelling in the brain can be seen in a CT scan, but some forms of very severe trauma can’t be detected in any medical imaging technique. So who’s to say your client isn’t just faking it?
As ‘neuroattorneys’ are growing in their awareness of brain trauma, defense attorneys are growing quicker in their claims of malingering. Personal injury attorneys need to be aware of the best tools to counter the claim.
First: a quick run-through of the definition of malingering. According to the DSM-V (the primary resource relied on by mental health professionals for assessment and categorization of mental disorders in the U.S.), malingering is the intentional production of false or grossly exaggerated physical or psychological problems, for personal gain. It should be noted that malingering isn’t a ‘diagnosis’ in the DSM-V, because it’s not considered a mental problem — it’s instead “a condition that may be a focus of clinical attention.”
Instead of assessment tools, the DSM-V gives a few conditions which could contribute to a ‘suspicion’ of malingering. The very first one? Being referred for examination by an attorney. The others are:
- When the onset of illness coincides with a large financial incentive, such as a new disability policy
- When objective medical tests do not confirm the patient’s complaints
- When the patient does not cooperate with the diagnostic work-up or prescribed treatment
- When the patient has antisocial attitudes and behaviors
This last one is controversial, with many psychologists claiming there’s no real connection between antisocial behaviors and likelihood to malinger (see, for instance, Expert Psychiatric Evidence by Keith Rix, pg. 149). This is a particularly important issue with TBI, as the injury’s symptoms combined with the stresses of the legal process can cause individuals to exhibit antisocial behaviors.
The earliest line of defense against malingering claims is to choose clients who can make stronger objective cases for TBI, whether that’s because they have clear medical imaging, or strong witnesses and documentation as to their injury. The opposing counsel could use a variety of tests to push a malingering claim (we’ll look at the unreliability of those tests below), but there are a few factors they’ll be looking for. Richard Roger sets them out in his tome Clinical Assessment of Malingering and Deception:
- Claimants attempting to dissimulate exhibit a tendency to endorse more blatant than subtle symptoms.
- Similarly, they tend to endorse an unlikely number of symptoms with extreme and unbearable severity.
- They often have difficulty distinguishing symptoms that are infrequent in psychiatric populations from those that are more common and they often endorse many rare symptoms.
- They are often unaware of the incongruities between their actual presentation and reported impairment. This is similar to the point in DSM-IV-TR about a ‘Marked discrepancy between the person’s claimed stress or disability and the objective findings’.
- They often manifest an eagerness to discuss, and elaborate upon, symptoms or an obvious response set.
- They often have difficulty remembering symptoms they previously endorsed and their severity, so repeating a set of clinical enquiries, even in the course of a single consultation, measures the stability of the response set.
If you see these behaviors in your potential client, it doesn’t mean that they’re lying about their TBI. But it does mean you’re likely to face greater challenges if you take the case.
The second place to be proactive against malingering claims is when the defense team requests to medically examine your client. This event, often misnamed an “independent” examination, can be stressful on your client. It’s good to insist that a client be allowed to have someone with them, especially if a registered nurse can be present to witness proceedings (or a friend if that’s not feasible). Emphasize to your client the importance of honesty: if your client is caught exaggerating one injury, all others will be cast in doubt. Get full information on the physician, and permission to depose them after the appointment. Make sure to insist on no x-rays or invasive tests, and demand permission to view the full report of the exam. These measures will both help protect your client’s well-being and give you the information your expert witnesses will need to push back against malingering claims.
After all this is done, what if the defense expert is ready to go forward with a claim that your client is malingering? It’s worth looking closely at the 1993 Daubert v. Dow Supreme Court case to see if their testimony can be tossed. Daubert, which established the trial court as the ‘gatekeeper’ for scientific evidence, is the main foundation for determining admissibility of expert testimony in federal courts.
The book Brain Injury Medicine: Principles and Practice by Douglas Katz and Ross Zafonte summarize the qualities of admissible scientific evidence in these five points:
- The theories and techniques employed by the scientific expert have been tested
- The theories and techniques have been subjected to peer review and publication;
- The techniques employed by the expert have a known error rate;
- The techniques employed by the expert are subject to standards governing their application
- The theories and techniques employed by the expert enjoy widespread acceptance.
Though Daubert was an expansion from the earlier Frye standard, in general, the courts have held strictly to the test, using it to reject pseudoscience and unfalsifiable claims.
From a clinical standpoint, a formal assessment of malingering shouldn’t be made without an explicit confession of the patient — and even then psychologists are cautioned that doctors can elicit false confessions. (See this paper on the difficulty of malingering diagnoses, and this researchshowing that psychologists are unskilled at picking out ‘fakers.’)
A strong argument can be made that any test for malingering hasn’t gained widespread acceptance, and doesn’t have known success and error rates. Often they have not be subject to peer review. These factors can make Daubert an important tool in motions attempting to exclude parts of the defense expert witness testimony related to malingering.
And there’s also the issue of unfair prejudice outweighing probative value: criminal psychologists Mary Alice Conroy and Phylissa P. Kwartner note that since use of the term ‘malingering’ can be highly prejudicial, courts may determine that the stigma the word carries could outweigh its probative value.
Finally, even if some strong evidence of malingering is brought against a client, it’s important to remember that it’s a relative term. ‘Malingering’ also applies to exaggerations, meaning the defense witness may concede that the client likely has some legitimate injury. Focus on those spaces of agreement with the defense witness.
I remember the story of General Patton, who found one of his soldiers in a field hospital without any visible wounds. Hearing the soldier was ‘shell-shocked’ (what we’d now refer to as suffering from PTSD), Patton lost his temper, shouted that the soldier was a coward and physically attacked him until others restrained him. It was later found the soldier was also suffering from malaria and dysentery, and in desperate need of medical help.
Too often our culture acts with the same haste, quick to dismiss anything but the most visible, gory trauma. Talented ‘neurolawyers’ can help change this tendency, by making the real trauma of TBI visible to judges and juries, and worthy of their consideration and empathy.