This article appeared in the DRI “In Transit”, Vol.19, Issue 1 on March 4, 2016.
by Robert S. Stickley
In the past few years, the Center for Disease Control and other organizations have mounted a major public awareness campaign concerning the effects of concussions. In the spring of 2015, the NFL settled a widely publicized brain injury class action lawsuit for close to one billion dollars. Coincidentally, March 2015 marked the first annual National Brain Injury Awareness Month. This heightened attention to brain injuries will most certainly result in an expanded litigation market – much to the future detriment of the trucking industry.
The plaintiffs’ bar is now ramped up and ready to make trucking companies their number one target. A simple internet search of “trucking and brain injuries” will net results from a multitude of law firms soliciting individuals involved in trucking accidents, encouraging them to file claims. As we know from past experience, an uptick in awareness coupled with an aggressive solicitation strategy by plaintiffs’ lawyers can result in questionable and fraudulent claims. This article will provide the trucking industry with tips on what to look for when confronted with what may seem to be a questionable brain injury claim. This article will also provide the trucking industry with advice on how to respond.
There are several “grades” or degrees of brain injuries. This article focuses upon the MTBI, or Mild Traumatic Brain Injury, because this injury has the greatest potential for fraud due to the self-reporting nature of the diagnosis criteria and the lack of objective medical evidence necessary for diagnosis.
Defining and Understanding a MTBI:
MTBI claims present a special challenge for the trucking industry because they are not easily understood and are often not identified by traditional objective medical tests such as CT scans, MRIs and MRAs. Moreover, the medical science is somewhat new and did not adequately evolve until relatively recently. Consider that the medical community struggled to even define MTBI. Multiple organizations have provided differing criteria for diagnosis including the International Classification of Diseases (Word Health Organization, 1992) tenth edition (ICD-10) and the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 1994) fourth edition (DSM-IV). The diagnostic criteria developed by the American Congress of Rehabilitation Medicine (ACRM) seems to be the one that is most widely recognized. The ACRM defines MTBI as follows: “A patient with mild traumatic brain injury is a person who has had a traumatically induced physiological disruption of brain function, as manifested by one or more of the following:
• Any period of loss of consciousness for up to 30 minutes; or
• Any loss of memory for events immediately before or after the accident for as much as 24 hours; or
• Any alteration of mental state at the time of the accident (e.g., feeling dazed, disoriented, or confused); or
• Focal neurological deficit(s) that may or may not be transient;
But where the severity of the injury does not exceed the following:
• Loss of consciousness exceeding 30 minutes;
• Post-traumatic amnesia longer than 24 hours;
• A Glasgow Coma Scale (GCS) score falling below 13 after 30 minutes.”
But what does that mean? Perhaps it is easiest to think of a MTBI by comparing it to a Traumatic Brain Injury (TBI) which is much easier to understand and quantify. A TBI involves a severe brain injury. For example, the plaintiff fractured her skull, her brain was bleeding, or she lost consciousness for more than a half hour and/or had posttraumatic amnesia lasting over 24 hours. There will also be objective evidence of a TBI, such as a MRI or CT scan. A MTBI is of lesser severity than a TBI but is much harder to diagnose and quantify, due often times to a lack of objective medical evidence. Because a MTBI can be diagnosed solely upon the self-reporting of the patient, much like a soft-tissue claim, there is ample room for interpretation/debate, and therefore fraud.
A MTBI Claim Presents Unique Challenges:
Consider this scenario: The defendant truck driver rear-ends a sedan at 15mph. The sedan is operated by a 55-year old who gets out of car and tells our long haul trucking client that she was feeling “a little excited” but otherwise not injured. The trucker and the operator of the sedan have a seemingly normal conversation at the scene. Everything seems fine but an ambulance transports the accident “victim” to the hospital out of precaution. The repair estimate to fix claimant’s bumper cover vehicle is less than $3,000 and it seems the claim is closed. Then, almost two years later, the trucking client is sued by the driver of the sedan who is claiming she has a MTBI and demanding over $1,000,000. She claims her symptoms worsened over time. Now she can no longer concentrate, is sensitive to light and sound, and has severe depression and anxiety. Plaintiff further claims she will never be able to work again and has been on disability since the accident. In support of her claim, plaintiff offers a host of medical records from treating physicians who based their diagnosis of MTBI solely upon symptoms reported to them by the plaintiff. All of the test results, including multiple post-accident MRIs, CT scans, and MRAs in our hypothetical scenario are “normal.” Photographs from the accident scene certainly do not show a million-dollar hit and the truck driver is in disbelief that plaintiff is claiming a brain injury because everything seemed fine at the accident scene.
Is this a fraudulent claim? Where do we even begin? Understanding several key markers for MTBIs can help assist those defending the trucking industry identify and defend against fraudulent claims. Let’s start with the accident scene and address a few key questions:
The Accident Scene:
1. Did plaintiff lose consciousness?
This is a key question when deciphering whether there could be a MTBI because the medical community is in agreement that the loss of consciousness is a key (but not required) marker when identifying a MTBI. In a fraudulent or questionable MTBI case, the plaintiff will often say she lost consciousness or “thinks she may have” lost consciousness. Oftentimes plaintiffs will testify that they are now so brain-injured as a result of the accident that they cannot remember either way. This is where the driver plays an important role. Speak to him about his interactions with the plaintiff at the scene. Ask him how much time elapsed between the impact and when he first observed the plaintiff. Did she exit the car immediately? Could the truck driver see plaintiff moving about in her car after impact? Find out whether the truck had a dash cam or other audio/video system that could provide clues. Of course check the driver’s written report regarding these issues. Also, obtain the EMS report and police report as they may provide clues as to whether plaintiff lost consciousness at the scene. The testimony of independent witnesses may also be helpful. Keep in mind, even if they did not witness the impact, they may have observed plaintiff’s behavior afterwards.
2. Did plaintiff have amnesia?
The more detail plaintiff can provide about the accident, whether at the scene or later during deposition, the more likely it is that plaintiff did not sustain a MTBI. Again, ask your driver exactly what plaintiff said at the scene. The more detail he can recall about plaintiff’s statements the better. And when it comes time to depose the plaintiff (we always recommend doing so on video), have her provide as much detail as possible about the accident and the accident scene. The more she can recall, the less likely it is that plaintiff sustained a MTBI.
3. Biomechanics – Can a Minor Hit Result in a MTBI?
Anyone defending against a MTBI should consider reading the 2008 book, “Mild Traumatic Brain Injury and Postconcussion Syndrome” by Michael A. McCrea. In chapter five, entitled “Biomechanics of MTBI,” the author outlines several studies/experiments that used video reconstruction, Hybrid III crash test dummies, and live instruments in the helmets of Virginia Tech football players to conclude that there is a minimal threshold of acceleration/deceleration to cause a MTBI. The studies show that the minimum threshold for in the range of 80-100g. In real-world terms, a 100g translational force is equivalent to a 25-mph motor vehicle crash into a brick wall, striking one’s head against the dash board. Hence, if your client’s truck rear-ended plaintiff’s vehicle at less than 25 mph, you may want to consider consulting with an appropriate expert(s) concerning this potential defense.
The Post-Accident Investigation:
While the events that unfolded at the accident scene can show many important key facts indicating whether or not the plaintiff could have sustained a MTBI, important clues will likely be developed during the post-accident investigation phase. Below is a discussion of facts and circumstances unique to MTBI claims.
1. Symptoms from a MTBI Manifest Immediately – Not Days Post-Accident
A MTBI is ostensibly a high-grade concussion. The medical community is in accord that concussions and MTBIs are at their worst when they immediately occur. Recovery begins within an hour or at the most, within a day or so. Unlike some back injuries, MTBIs are not progressive conditions and symptoms do not begin later in the future.
So in the example of our hypothetical plaintiff above, is it possible she could have a MTBI when our truck driver said plaintiff showed no symptoms at the accident scene? As part of the post-accident investigation, you must obtain all of plaintiff’s medical records both before and after the accident. If they show that plaintiff’s symptoms did not manifest until several days after the accident, the plaintiff does not have a MTBI.
One of the leading medical texts on the condition is the Diagnostic and Statistical Manual of Mental Disorders (DSM-5®). This manual is widely used by clinicians and researchers to diagnose and classify mental disorders and is the product of more than 10 years of effort by hundreds of international experts in all aspects of mental health. At page 624, the manual discusses the diagnosis criteria for MTBI and states, “the neurocognitive disorder presents immediately after the occurrence of the . . . injury or immediately after the recovery of consciousness . . .” Simply put, if the records and/or testimony show that the plaintiff did not have symptoms immediately after the accident, or immediately after regaining consciousness, she does not have an MTBI.
2. MTBI’s resolve within a short time, and almost always within 90 days
Our hypothetical MTBI plaintiff is alleging she can no longer work as a result of permanent cognitive deficits stemming from the accident. Is this possible? The answer is no. She may have a TBI but would need objective medical testing to prove it. More likely than not our hypothetical plaintiff has a pre-existing mental disorder or is falsifying her claim because one cannot have permanent sequelae from a MTBI.
Older, less refined studies from the 1980s and 1990s suggested that a small percentage of patients with MTBI could have permanent debilitating cognitive deficits. However, medical science and brain injury research techniques have advanced significantly since then. The consensus in the scientific community now is that symptoms from a MTBI resolve in a short period of time – usually a few days but not more than three months. The 2002 book entitled “Brain Injury and Mental Retardation: Psychopharmacology and Neuropsychiatry”, by C. Thomas Gualtieri is an authoritative resource on how to treat brain injuries. It states that there are no credible descriptions of patients with MTBI who have developed a declining IQ, psychosis, seizures or any catastrophic disability unless the patient has a preexisting or some other condition.
In 2004, The Journal of Rehabilitative Medicine published an excellent review of 428 MTBI research studies. The article, entitled “Prognosis for Mild Traumatic Brain Injury: Results of the World Health Organization Collaborating Centre Task Force on Mild Traumatic Brain Injury” concluded that prognosis for MTBI was good and that the majority of studies report a full recovery within three months. Their conclusion was that where symptoms persist, compensation/litigation is a factor. In fact, in 2012, Rohling, Larrabee and Millis reported in the article, “The Miserable Minority Following Mild Traumatic Brain Injury: Who Are They and Do Meta-Analyses Hide Them?”: “Our data support the conclusions of others that the occurrence of a single uncomplicated MTBI is associated with full recovery at three months. Consequently, in cases presenting with chronic complaints and/or abnormal scores on neuropsychological testing, these findings are most likely due to factors other than MTBI.”
In other words, individuals with a “real” MTBI will show immediate improvement, will not get worse with time, and will be fully recovered in 90 days or less. Those alleging symptoms beyond three months either have a pre-existing condition, have some other medical/psychological issue, or they are compensation seeking individuals that are committing fraud or suffering from “compensation neurosis.”
In sum, the post-accident investigation must include a thoughtful, deep dive into plaintiff’s pre-accident medical records. Employment and school records should be obtained and scanned for pre-existing mental conditions, including depression and anxiety. Importantly, the post-accident medical records should be analyzed to determine whether plaintiff’s symptoms worsened with time after the accident.
3. Self-Reporting and the Potential for Fraud
MTBIs bear a resemblance to soft-tissue injuries in that there is no reliable medical test that can objectively and definitively diagnose the injury. As the trucking industry is well aware, many compensation seeking individuals claiming soft tissue injuries are not completely honest about their symptoms. The same could be true for plaintiffs claiming a MTBI.
One of the criteria for a MTBI includes “any alteration of mental state at the time of the accident (e.g., feeling dazed, disoriented, or confused).” Hence, one can have a MTBI without presenting any objective medical evidence. For example, a plaintiff can claim she was dazed and confused at the time of accident, and now suffers from persistent headaches, dizziness, memory loss and other debilitating cognitive defects all of which could satisfy the medical definition for having a MTBI. Even worse, plaintiffs’ treating physicians can be deceived into believing plaintiff has a MTBI if they accept a plaintiffs’ self-reporting, which is common. Of course, the treating physicians have a vested financial interest in providing “treatment” as they know well in advance whether they will be fully compensated for services rendered. Further, the “treatment” methods are non-invasive and carry zero-consequence side-effects. Much like soft-tissue cases there is no incentive for treating physicians to root-out those who provide false self-reporting symptoms. To the contrary, as with soft-tissue claims, the system is ripe for fostering false claims and the potential for fraud is high. Unlike a soft-tissue claim, however, a MTBI claim can have a jury verdict value far exceeding a few thousand dollars. Given the minimum mandatory liability limit of $750,000 applicable to the trucking industry, all of the pieces are in place for plaintiffs to take advantage of the system by falsely self-reporting symptoms of a MTBI – at the expense of the trucking industry.
How the Trucking Industry Can Defend Against MTBI Claims:
Malingering is always a concern in MTBI cases, especially when the individual is seeking compensation. However, the trucking industry has a few unique tools at its disposal that can help combat against specious MTBI claims. Dash cams are more prevalent than ever and can provide key evidence showing whether the plaintiff lost consciousness at the scene. They can sometimes show plaintiff’s behavior, including whether or not the plaintiff appeared to be dazed, dizzy or confused in the aftermath of the impact. Further, advances in GPS and EDRs can indicate the speed and velocity involved, including whether or not the impact took place at or below 80-100g or 25mph.
Because the trucking industry has more at stake (i.e., high liability insurance limits or SIRs) it is well suited to invest in a competent defense. Defending these claims is very expensive, and should almost always include a neuropsychological examination. One little publicized fact about the neuropsychological examination is that it contains a series of validity sub-tests that are designed to detect whether or not a plaintiff is malingering. These sub-tests are called “Performance Validity Tests (SVTs),” “Word Memory Test,” “Repeated Battery for Neuropsychological Testing (RBANS),” “Reliable Digit Span,” “Victoria Symptom Validity Test,” and “Test of Memory Malingering (TOMM).” Another validity test, called the “Minnesota Multiphasic Personality Inventory-2-RF (MMPI-2-RF)” has two subparts called the “Fake Bad Scale (FBS)” and the “Response Bias Scale (RBS).” A competent neuropsych doctor can utilize the results of the above-referenced tests to conclude whether or not the plaintiff is over-reporting symptoms and/or exaggerating memory complaints and/or providing full effort on the overall neurophysiological exam. Otherwise stated, these sub-tests are the only known way to show that a “self-reporting” MTBI plaintiff is exaggerating or lying about her symptoms. Not surprisingly, when plaintiffs are not being truthful about their MTBI, they fail these tests with such flying colors that the results are comparable to those of someone that barely regained consciousness following a ten-year coma.
With the increase in awareness of concussions and brain injuries, the plaintiffs’ bar is poised to bring a new wave of litigation. Their primary target is the trucking industry. Due to the self-reporting nature of the MTBI, and the lack of objective medical testing proving or dis-proving the same, there is ample room for fraud and deceit. Factors to consider include whether the impact was at 100g (akin to 25mph), and whether the plaintiff lost consciousness or had amnesia. If plaintiff is claiming her symptoms worsened over time, or that she is not back to baseline after three months, the claim is likely exaggerated. The trucking industry has certain tools, including dash cams, GPS and EDRs that can assist it in identifying and defending against false MTBI claims. Further, special attention should be paid to validity test neuropsych results that are designed to detect whether a self-reporting plaintiff is providing false and misleading symptom reports.
Robert S. Stickley is a partner at the Philadelphia law firm of Langsam Stevens Silver & Hollaender, LLC. He focuses his practice on the defense of commercial vehicle and auto accident cases. He has tried numerous high-severity trucking accident cases to verdict and has extensive first-party commercial and personal lines claim handling experience.