NeuroRehabilitation An Interdisciplinary Journal

ELSEVIER

NeuroRehabilitation 7 (1996) 3-14

Neurorehabilitation and neurolaw J. Sherrod Taylora,b* aTaylor, Harp and Callier, P.D. Box 2645, Columbus, GA 31902-2645, USA bEmory University School of Medicine, Atlanta, GA, USA

Abstract Neurological injuries result from a variety of traumatic events which may become the subject of civil litigation. The emerging field of medical jurisprudence known as neurolaw deals specifically with traumatic brain injury and spinal cord injury in the legal setting. This article reviews the myriad ramifications of neurolaw and provides practical suggestions to neurorehabilitation professionals who serve as expert witnesses in civil actions.

Keywords: Neurolaw; Traumatic brain injury; Spinal cord injury; Litigation literacy

1. Introduction Motor vehicle accidents, workplace trauma, falls, and violence cause numerous neurological injuries. However, providing care, treatment and rehabilitation to patients with traumatic brain injury (TBI) and spinal cord injury (SCI) tends to be costly; and, the major obstacle to the development of long-term supports for people who acquire such injuries is lack of funding [1]. For this reason, TBIjSCI patients and their families must overcome many hurdles when they attempt to assemble the financial resources necessary to pay for effective therapeutic interventions. Since some traumatic events may properly be the subjects of

* Corresponding author. Tel.: + 1 706 3237711; fax: + 1 706 3237544.

litigation, many patients tum to the civil justice system and become plaintiffs in legal actions, seeking compensation. According to one version of the Greek myth, Pandora's box contained all of the blessings of the gods. When this box was rashly opened, these blessings escaped and were lost - all, that is, except hope, which was saved and still remains with us. In a very real sense, we may view the neurorehabilitation specialists, who testify on behalf of patients in civil lawsuits, and the personal injury attorneys, who represent those patients in court, as modem-day keepers of Pandora's box. They are part of an interdisciplinary team of concerned professionals who possess both the tools and expertise required to keep hope alive in individuals and families who are touched by the fickle, yet ubiquitous, hand of neurotrauma. However, in order to serve effectively in these cases,

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team members need to have a basic understanding of (a) the goals of litigation, (b) legal rules, and, as this article proposes, (c) the principles of the emerging field of medical jurisprudence known as neurolaw. This paper explores each of those topics and presents insights into the multidimensional legal system as it relates to personal injury cases. While our focus shall be principally upon tort litigation, the majority of the ideas expressed here are equally applicable, with minor exceptions, to workers' compensation and social security cases. We shall examine closely the field of neurolaw including its history, theoretical underpinnings and practical applications. Moreover, we shall identify and discuss several potential pitfalls which neurorehabilitation professionals may encounter when they give expert testimony. While the medicolegal ramifications of both brain and spinal cord injuries will be considered at some length, special emphasis will be placed upon so-called 'mild' traumatic brain injury (MTBI) for two important reasons. First, MTBI is the most frequent subject of neurolitigation, since it is the most common type of neurological injury caused by trauma. Second, health-care providers who treat MTBI patients are experts who are likely to be drawn into the legal forum, either voluntarily or by subpoena [2]. Nonetheless, many of the ideas discussed here are pertinent in more severe cases of brain injury and in matters involving SCI as well. From the outset, readers should appreciate that the author of this paper is an attorney who specializes in representing plaintiffs who seek compensation for TBIjSCI. Also, many neurorehabilitation professionals, who testify in civil cases, have previously provided treatment to those plaintiffs within the health-care setting. Thus, while a significant attempt has been made by the author to remain objective, this paper presents a view which is primarily from the plaintiff's perspective. 2. Neurolaw Neurolaw is a synthesis of medicine, rehabilitation, and law which deals with the medicolegal

implications of neurological injuries - especially traumatic brain injury (TBI) and spinal cord injury (SCI) [3,4]. First introduced to the health-care [5,6], and legal communities during the early days of the 'Decade of the Brain,' neurolegal inquiry has become an accepted method for meeting the challenges of TBIjSCI in the legal setting. The central thesis of neurolaw proposes that the financial resources obtained through civil justice r~medies contribute to improving quality of life for people with neurological injuries and their families [7]. Thus, neurolaw addresses the financial burdens presented by TBI/SCI. When persons with neurological injuries secure compensation in personal injury litigation, they obtain money which can be utilized to (a) fund expensive rehabilitation programs, (b) replace earnings lost due to injury, and (c) compensate for the physical pain and mental anguish which attend such injuries. In these ways, awards of monetary damages promote optimal recovery following injury and instill hope into the lives of those people affected by TBIjSCI. The four cardinal principles of neurolaw, which are discussed in this paper, support the field's central thesis.

2.1. First principle The first principle of neurolaw provides that better legal outcomes promote better clinical outcomes for patients with neurological injuries. Much health-care literature is devoted to the subject of outcome studies [8]. Almost all of these reports suggest that there is improvement in the functional abilities of patients following the application of rehabilitative care. For example, early therapeutic intervention [9], as well as lengthy and intensive treatment programs [10], are often cited as being important factors contributing to the achievement of favorable outcomes. When the amount of monetary damages awarded during personal injury litigation is substantial, plaintiffs trial lawyers consider the legal outcome to be favorable. If money acquired in this manner is used to support rehabilitation activities, quality of life generally improves for both . patients and their families. Thus, it may be cor-

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rectly said that better legal outcomes promote better clinical outcomes. 2.2. Second principle

Neurolaw's second cardinal principle states that success in neurolitigation is dependent largely upon the quality and quantity of expert evidence. Just as people with neurological injuries in the rehabilitation setting require the services of members of an interdisciplinary team of specialists, they also need a plethora of highly-qualified, well-motivated expert witnesses to support their lawsuits. These clinical experts come from a host of cognate disciplines - e.g., neurosurgery, physiatry, neurology, orthopedics, psychiatry, psychology, neuropsychology, speech/language/ hearing pathology, physical/rehabilitation/occupational therapy, nursing, and social work. Working together with their patients' attorneys, these experts develop evidence which is used to persuade juries and judges on matters involving the cause, nature, and extent of the injuries which are the subjects of civil cases. Since TBI/SCI are complex injuries, neurolaw may be viewed as the most 'expert intensive' form of personal injury practice. 2.3. Third principle

The third principle holds that mutual cooperation among concerned professionals enhances the probability of successful neurolitigation. This is very important because it has been suggested that the medicolegal system rarely works in harmony for the best interests of patients [11]. Dealing with TBI/SCI within the legal arena requires teamwork. For this reason, supporters of neurolaw encourage health-care and legal professionals to make diligent efforts to overcome barriers which historically have tended to divide them. In this regard, it is particularly critical for clinical experts to surmount misunderstanding about the degree of 'certainty' required when they testify about their personal observations (facts) and opinions. If they fail in this important task, the personal injury case may be adversely affected [12]. As members of the medical (hence scientific)

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community, many neurorehabilitation professionals erroneously believe that the facts and opinions to which they testify must be predicated upon what they understand to be 'scientific certainty' (which often rises to the level of at least 95% chance). Some trial lawyers - especially defense counsel - encourage use of that standard when they preface the questions they pose to experts with the phrase: 'Do you have an opinion, based on reasonable degree of medical certainty, as to whether or not. . .' Yet, medical or scientific 'certainty,' as it is generally understood by clinicians, is not the standard by which expert testimony is measured in civil cases. Courts invite expert witnesses to present their factual evidence and to express their professional opinions on all subjects which lie within the scope of their expertise. In civil actions, facts and opinions are not required to be stated to 'a reasonable degree of medical certainty.' Rather, they should be set forth to 'a reasonable degree of medical probability' [13]. 'Medical probability' is simply considered to be more than 50% chance [2]. Health-care experts, therefore, must recognize that the standard of medical 'certainty' which should be applied during litigation is 'more likely than not.' It is for this reason that appellate courts generally hold that expert evidence showing a causal relationship between a traumatic event and an injury is admissible when it is based at least on 'reasonable probability' [60,61]. Of course, these observations are not meant to suggest that experts may not employ the higher standard of scientific or medical certainty when they are thoroughly convinced on a particular matter. Rather, the foregoing demonstrates that this higher standard is neither expected nor required in civil cases; therefore, expert witnesses have a greater degree of flexibility than they might otherwise anticipate when they present evidence in court. The legal construct of 'probability' is consistent with the burden of proof which litigants have in civil cases, i.e. 'preponderance of the evidence.' To 'establish by a preponderance of the evidence' means to prove that something is more likely so than not so [14]. Even casual students of the law can readily see that 'more likely so than not so'

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implies probability. Trial judges, therefore, customarily instruct jurors that this rule does not require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case. Thus, when neurorehabilitation professionals fully accept the legal notion of 'probability,' they take a major step toward cooperating with both courts and lawyers during neurolitigation. Recognizing the proper standard to be applied in their testimony, they avoid a major misunderstanding which in the past has caused a clash between the legal and scientific cultures [15].

2.4. Fourth principle Finally, the fourth principle of neurolaw suggests that to be successful, clinical and legal professionals require litigation literacy. That term simply means having a basic awareness of the intricacies of the civil justice system [16]. Specifically, this concept requires experts to understand fully the various roles they may play during litigation. Nearly all health specialty organizations recognize that their members may be asked to provide expert testimony in civil cases. For example, the Code of Ethics of the American Medical Association [17] states: 'If a patient who has a legal claim requests a physician's assistance, the physician should furnish medical evidence, with the patient's consent, in order to secure the patient's legal rights' (§9.07). In order to carry out this mandate, clinicians often serve as expert witnesses during neurolitigation. 3. Practical applications of neurolaw Simply recognizing the role one is to play during neurolitigation - while certainly an important feature of being litigation literate - is not enough. Clinical experts need to know specifically what is expected of them, if they are to participate effectively in the case. While there are many practical aspects to neurolegal inquiry, we shall focus only upon the three which are present in all cases. Thus, expert witnesses must understand that the purpose of such investigations is to establish the (a) cause, (b) nature, and (c) extent of

the neurological injury which forms the predicate for a pending legal action. 3.1. Cause of injury

Making a determination about the cause of an alleged neurological injury is critical. Expert witnesses should appreciate that plaintiffs in tort cases always maintain that a specific event produced the injury for which they seek compensation. If that event did not cause or contribute to causing that injury, there can be no recovery of damages, and the litigation will fail. Thus, when clinicians testify, they need to state clearly their opinions regarding the cause of the plaintiffs condition. Doing this in a persuasive manner may not be as difficult as it may at first seem. Obviously, it is seldom hard for the neurorehabilitation expert to testify unequivocably that a particular trauma produced either a moderateto-severe brain injury or a spinal cord injury. These are usually acute conditions which are apparent following an accident. For this reason, experts are rarely challenged when they say: 'In my opinion this motor vehicle collision caused the plaintiff to sustain injury to the spinal cord.' On the other hand, providing testimony concerning the specific cause of subtle brain injury sometimes presents a more difficult problem. Indeed, neurorehabilitation professionals generally acknowledge that what makes the MTBI 'mild' is that it (a) may not be readily apparent, (b) may not manifest itself during typical medical testing, and (c) may even be initially overlooked by medical professionals. Under such circumstances, clinical experts should expect to have their testimony carefully scrutinized, if not challenged absolutely, when they are questioned by attorneys who oppose the MTBI patient's legal interests. While establishing the cause of MTBI may present a thorny issue, experts who firmly keep in mind the notion of legal 'probability' are usually able to render appropriate opinions on this subject. Kolpan [18], has observed that clinicians, who testify in TBI cases, must only state that the claimant's current condition was likely (Le. probably, more likely than not, with 51%

1.S. Taylor / NeuroRehabilitation 7 (1996) 3-]4

probability) caused by the accident which is the subject of the litigation. In reality such testimony should be readily forthcoming; as Jennett [19], has noted, in the absence of reliable data concerning an individual's premorbid state, abnormal behavior seen after head injury may be assumed to be the result of brain damage. Moreover, in order to comply with the legal rules pertaining to 'probability' and 'preponderance of the evidence,' neurorehabilitation experts only need to rely upon the scientific principle of pa~imony (i.e. William of Occam's razor) which provides that no more causes should be assumed than are necessary to account for the facts. Thus, in law and in science, the simplest theory which fits the facts of a particular problem is the one which should be selected. By holding fast to this principle, experts avoid becoming entangled in a web of alternative potential causes of injury, and they are able to refrain from using speculative words - e.g. could, possibly or may - which might result in their opinions being excluded from trial evidence. To be sure, there may be many possible causes of any particular plaintiff's brain injury. However, what may possibly have resulted in injury is not the issue in neurolitigation. Courts and lawyers are only interested in what probably caused the condition. By tethering trial testimony to the notion of 'probability' and always avoiding opportunities to dilute their remarks by interjecting other possible explanations, clinicians are able to hang their evidence upon the proper legal framework. Experts who insist on describing alternative or other possible causes of injury fail to abide by the applicable rules of law. As Kolpan ([18] p. 96) has admonished: 'Expert testimony stated as possibilities or alternatives leads the jury to speculate as to what caused the plaintiffs injuries; it does not aid or assist the jury in its determination.' 3.2. Nature of injury

Health-care literature is replete with descriptions of the nature of TBI/SCI. However, clinical experts must remember that, when they render opinions in court, they operate within the legal not medical - environment. While references to

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pertinent medical descriptions of TBI/SCI are appropriate, relying upon recognized legal definitions of these conditions is also helpful. For example, the State of Georgia defines TBI as: 'a traumatic insult to the brain and its related parts resulting in organic damage thereto which may cause physical, intellectual, emotional, social or vocational changes in a person ... ' [62]. Spinal cord injury (SCI) is also specifically defined in many legal codes. Utilizing legal definitions is important because medical literature is filled with non-comparable descriptions of the nature of TBI/SCI. Indeed, it has been said that research studies of brain injury lack consensus and do not present a unified definition of this disorder [20]. Clinical experts, who desire to be recognized as being litigation literate, should inquire, prior to giving testimony, as to whether the jurisdiction in which the case will be tried has in its legal code a definition of the condition in question. By using the words from a legal definition in their records, reports and testimony, neurorehabilitation professionals immediately begin speaking in the same language employed by courts. This prevents misunderstandings, enhances the credibility of witnesses, and virtually forecloses disputes from arising as to the nature of the injury during the trial or appellate process. Experts should also remember that, when a legal definition is available, judges are likely to read that definition to the jury during the final charge or instructions, so that jurors may fully apprehend the nuances of the condition which they are being asked to evaluate. 3.3. Extent of injury A primary purpose of expert clinical testimony is to establish the extent of the claimant's neurological injury. It is axiomatic that more serious injuries create entitlement to more substantial compensation in meritorious cases. That is, plaintiffs in civil actions have two major desires. First, they wish to proffer evidence showing just how badly they have been injured. Second, they want to provide information which sets forth a plan under which those injuries may be addressed by rehabilitation professionals (e.g. a Life Care Plan).

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Thus, the plaintiff's position in neurolitigation fits nicely within both the medical and rehabilitation paradigms. The medical model tends to focus on what is wrong with the patient. The rehabilitation paradigm focuses on increasing the patient's capacities through employment of therapeutic interventions [21]. Presenting evidence using both models allows plaintiffs the opportunity to recover monetary awards which are sufficient to meet all of their future needs. On the other hand, defendants want to minimize the extent of the claimed injuries in order to limit the amount of damages which may be awarded. Therefore, it is incumbent upon neurorehabilitation professionals to use great care when assessing the full extent of the plaintiff's condition. Throughout their testimony, experts should focus attention upon impairment, disability, and handicap so that the jury can review completely the impact of the injury on all aspects of the plaintiff's life. 4. Pitfalls A litigation pitfall is a trap or crafty device which catches the unsuspecting or unwary witness by surprise. No paper on expert testimony is complete unless some effort is made to identify and suggest solutions to at least a few of the common pitfalls presented during neurolitigation. While it seems that potential testimonial problems lurk behind every comer in such cases, these usually can be sidestepped - if not wholly avoided - by knowledgeable experts. We shall now review several areas in which testimony may be challenged or derailed entirely.

4.1. Loss of consciousness At some point during the course of litigating traumatic brain injury cases, defense counsel commonly suggest that no significant brain injury could have occurred in the absence of loss of consciousness (LOC). While LOC is an important factor to be considered in evaluating a persons claiming TBI, experts who are questioned about this issue must assiduously refrain from agreeing

with the proposition that LOC is a pre-requisite for brain injury. In subtle or occult cases of brain injury, there may be no LOC [22]. Even 'trivial' TBI, without LOC, can have later neurologic sequelae [23]. As Zasler [24], has so clearly pointed out, it is critical to recognize that a loss of consciousness is not essential for a diagnosis of TBI. This is true because an injury that does not affect the brainstem or its cortical connections may not be accompanied by immediate or subsequent LOC [25]. Therefore, neurorehabilitation experts should never opine that LOC must have resulted from the traumatic event in order for the plaintiff to have sustained brain injury.

4.2. Negative neuroimaging As in cases with an absence of LOC, defense counsel may attempt to harp upon the fact that a plaintiff claiming to have TBI had negative results during medical testing. This, too, is a 'red herring' which clinical experts should refute during their testimony. As Varney and Shepherd [26], have noted, under even the most restricted definition of minor head injury, a patient's computed tomography (CT) scan, magnetic resonance image (MRI) and electroencephalogram (EEG) typically are all normal. Indeed, the mechanisms of MTBI are not expected to yield radiologic proof of injury, because, by definition, no such findings of trauma-induced abnormalities would be anticipated. Therefore, it is critical for testifying neurorehabilitation experts to eschew any suggestion that TBI is always revealed by medical testing, especially neuroimaging. Packard and Ham [27], have even maintained that it is a grave disservice to patients with MTBI symptoms and normal CT or MRI scans to be told that there is nothing wrong with them. Remember: the absence of a positive finding on any diagnostic test is not even evidence of a lack of injury.

4.3. Exaggeration of symptoms Defendants often attempt to prove that neurologically-injured plaintiffs are exaggerating their symptoms. While this topic is discussed elsewhere in this journal, it is necessary for readers to

1.S. Taylor / NeuroRehabilitation 7 (1996) 3-14

receive the views of this trial lawyer author on this important subject. Allegations pertaining to the embroidering of symptoms come with many faces, and expert witnesses need to be alert for each. A relatively mild form of this tactic arises when defense attorneys insinuate that litigation itself contributes to prolonging a claimant's injuries. However, in 1981, Rimel et al. [28], reported that pending litigation had a negligible effect, if any, on the recovery of head injury patients. That finding, of course, contradicts the suggestion that litigants delay their progress in recovering by fraudulently producing their symptoms [29]. Nonetheless, the perception that plaintiffs exaggerate the impact of their injuries in order to obtain compensation persists. In 1988, McMordie [30], found that 45% of American neurosurgeons surveyed believed that compensation is one of the principle motivating factors among patients with mild brain injury. Also, in 1994, Evans [31], while discussing a nationwide survey of physicians, noted that over 23% of responding neurologists strongly agreed or agreed with the statement: Once litigation is settled, symptoms quickly resolve in patients with postconcussion syndrome. This perception (or, shall we say, misperception) probably flows, in large part, from Miller's [32], well-reported study in 1961 which set forth the notion of 'accident neurosis.' Additionally, some of these callous opinions of clinicians can probably be traced to what Evans [33], referred to as the 'Hollywood Head Injury Myth' or which Robertson [34], labeled the 'Three Stooges Model.' In both of those contexts the amount of trauma necessary to produce brain injury is overestimated, and head injury may appear to be humorous or of very little consequence. However, studies have identified 'accident neurosis' in less than 7% of patients [35]. Comments concerning the possible exaggeration of symptoms lead inevitably to suggestions of malingering. To be sure, Leininger and Kreutzer [36] were correct when they urged that it is essential for clinicians to assess the possibility of malingering when evaluating persons who may benefit monetarily, if deficits are documented by testing. In this regard, experts often seek guidance on this

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subject by referring to DSM-IV [63], which defines malingering as 'the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as ... obtaining financial compensation ... ' (p. 683). Some clinicians have argued that patients with mild brain injury are often accused of malingering in an attempt to discredit their symptoms [11]. Many plaintiffs attorneys believe that defense counsel also seek to inject this subject into cases in order to show that the plaintiff is a 'bad person' who is not worthy of recovering a substantial monetary award. While evidence of a party's alleged bad character is generally not admissible in civil actions, raising the specter of malingering constitutes a 'back-door' effort to circumvent accepted legal procedures. Certainly, neurorehabilitation professionals must be aware of facts which possibly indicate the presence of malingering. However, from the outset, they must appreciate that plaintiffs lawyers, as a general rule, have no desire to represent malingerers in court. Not only would that be unethical, but it would also be counterproductive and contrary to those attorneys' own self-interests. Courts and juries are not likely to award substantial damages to persons whom they label as malingerers; and, in such instances, lawyers representing those plaintiffs would be unable to collect reasonable fees for their services. When rehabilitation professionals suspect that patients are malingering, they should immediately contact the patient's attorneys and apprise them of those suspicions. Honorable attorneys will usually withdraw from the litigation once they accept the notion that the client is feigning symptoms in order to profit from a traumatic episode. However, clinical experts who are questioned about the subject of malingering should be cautious in responding to those inquiries. Deliberate exaggeration of symptoms in patients involved in litigation appears to have been vastly overestimated [37]. Indeed, health-care professionals must understand that there is really no clear and easy way to detect either exaggeration or fabrication of symptoms [13] . Moreover, there appears to be a paucity of research to demonstrate that clini-

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cians even possess the ability to discern malingering [38]. Neurorehabilitation experts may find solace in the fact that malingering is rare. In brain injury cases, Parker [39], has noted that the extent of actual malingering appears to be grossly exaggerated and allegations of it cause extreme prejudice against the majority of accident victims. Yet, the possibility or even the probability that defense counsel will attempt to raise questions about malingering haunts virtually all MTBI plaintiffs from the beginning until the end of their cases [40]. This tactic is part of what plaintiffs attorneys call the 'greenback poultice' myth which perpetuates the notion that plaintiffs who recover money damages become miraculously cured at the conclusion of the litigation. However, legal settlements do not generally bring about a termination of symptoms [41-43]. Mendelson [44,45], has shown that claimants with head, back or neck injuries certainly cannot be said to have been 'cured by the verdict'. This fact has also been confirmed by others in cases which involved postconcussion symptoms [46]. Neurorehabilitation experts recognize that posttraumatic headache (PTH) is the most frequent symptom noted following MTBI. Despite evidence that brain injuries often result from acceleration-deceleration forces and rotational forces, some health-care specialists, attorneys and insurance adjusters continue to insist that PTH is nothing more that a manifestation of 'accident neurosis' or malingering. However, Packard [47], conducted a study to determine if PTH remains permanent after legal settlement, and, if so, whether headache symptoms improve, stay the same, or worsen. Of the 50 adult patients he examined, all continued to have headaches 1 year or more following resolution of their legal cases, with four reporting improvement, four reporting worsening, and 42 noting no change whatsoever in their symptoms. Again, we can see that termination of litigation has no significant impact upon patient symptoms. Finally, it must be restated that neuromedical experts must exercise extreme caution when rendering opinions concerning malingering and/or the effects of litigation on brain-injured patients. Even when clinicians have what to them are valid

indications of exaggeration, caution remains in order because neurologically or cognitively impaired patients are known to have a tendency to exaggerate their symptoms [1]. Experts who place too much emphasis upon the subject of exaggeration during their testimony may harm plaintiffs who have legitimate injuries. 4.4. Life expectancy

Juries and judges usually consider the plaintiffs life expectancy when assessing what amount of money should be awarded for future damages. Frequently, defendants seek to limit such awards by urging that the claimant has a reduced life expectancy. To be sure, some neurologically injured plaintiffs do have a lower-than-normal expectation of survival; however, there are at least two good reasons for experts to refrain from speculating about how that fact should impact upon damages. First, neurorehabilitation professionals generally acknowledge that, with proper treatment, patients with spinal cord injuries do quite well. Indeed, today approximately· 89% of SCI patients have a relatively normal life expectancy [48]. Thus, unless clinical experts have valid reasons for believing that specific SCI litigants have lower life expectancies, they should opine that plaintiffs will likely enjoy normal life spans. Second, clinical experts need to recognize that there is no logical reason to permit defendants to avoid legal responsibility for the injuries they have caused, even if those injuries do result in lower life expectancy. On this point, one court has found that, if the plaintiff's damages were diminished as a result of his reduced life expectancy as a quadriplegic, then the defendant would benefit from its negligence in having made the plaintiff a quadriplegic in the first place [62]. The court reasoned that, while the damages award may overpay the plaintiff in light of his actual life expectancy, this would be more appropriate than allowing the defendant to realize a windfall because of its negligence. However, the same court allowed damages to be reduced due to a lower life expectancy arising from schizophrenia, since

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the defendant had nothing to do with causing that disorder. 4.5. TBI and PTSD

Neurorehabilitation experts need to recognize that plaintiffs in civil cases have a keen desire to offer proof pertaining to all of the injuries which they claim to have sustained as the result of a traumatic event. Occasionally, people with brain injury are also diagnosed as having posttraumatic stress disorder (PTSD). When that occurs, plaintiffs will probably tender evidence on both TBI and PTSD. However, Sbordone [49], has suggested that cerebral concussion and PTSD are mutually incompatible. The DSM-IV [63] at least implicitly appears to encourage that opinion. But, using Sbordone's position as a point of departure, Layton and Wardi-Zonna [50] have suggested that a dual diagnosis of TBI and PTSD can legitimately be made and that these two conditions are not incompatible. While noting that the issue of the relationship between TBI and PTSD is contentious, Brooks [51] has reported several cases in which PTSD was present along with genuine neurogenic amnesia. However, Zasler [52] has urged that PTSD and TBI are mutually exclusive. Whether or not PTSD may be concurrently diagnosed along with TBI remains a hotly debated issue. Experts, who accept the rationale of Layton, Wardi-Zonna and Brooks, may offer evidence on the co-existence of these two conditions. In doing so, they will increase the elements of damages for which plaintiffs may lawfully recover compensation. On the other hand, adherents to the positions espoused by Sbordone and Zasler, no doubt, will continue to testify that TBI and PTSD are not compatible. Regardless of the view taken on this subject, experts should predicate their opinions upon relevant supporting literature and on their own personal experiences. Courts generally will admit the well-founded testimony of experts on either side of this issue and will leave the resolution of this question to the enlightened consciences of fair and impartial jurors.

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4.6. Mis-diagnosed or overlooked injuries

Regrettably, some serious neurological injuries are not initially diagnosed by medical care providers. When this occurs, defense attorneys frequently perceive an opportunity to have clinical witnesses attribute such injuries to causes other than the traumatic event which is the subject of the litigation. Experts should exercise great caution when they respond to questions pertaining to conditions which have become apparent weeks or months after a particular accident or which may show up at some future time. As shown below, there are many plausible explanations for late development and/or discovery of certain injuries. It is well known that the full panoply of symptoms often associated with mild traumatic brain injury (MTBI) may not become manifest until long after a trauma. Those symptoms may go undiagnosed or misdiagnosed by medical personnel. Zasler ([24] p.12) has observed: 'One of the most frequent yet tragic occurrences in clinical practice is the patient with true post-concussive deficits who has gone from doctor to doctor only to be told there is nothing wrong with him, to the point where they think they are actually 'losing their minds'.' Normal neurological findings may lead to the false conclusion that postinjury problems were psychogenic [53]. Because behavioral derangements stemming from diffuse axonal injury are frequently beyond the recognition of most neurologists or average medical practitioners [57], it is certainly not surprising that some patients fall through the cracks of the diagnostic system. However, plaintiffs involved in tort litigation should not be penalized because they have only recently learned the nature and origin of their conditions. Singer and Harp [55], have noted that many paralyzed patients may have their mild or moderate TBIs overlooked. This occurs because healthcare providers tend to diagnose the patient's SCI and to initiate treatment for this life-endangering injury, while failing to investigate less obvious conditions like brain injury. However, since the relationship between TBI and SCI is well established, it is not uncommon for paralyzed plain-

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tiffs to also seek damage awards for brain injury during litigation [56]. Additionally, while it is rare, a serious spinal cord injury may not fully manifest itself immediately following a traumatic event. In a recent Louisiana case [65], the plaintiff sustained T-12 paraplegia as a result of an oil platform accident. However, no substantial symptoms were noted for four days after the incident, and paralysis did not occur until several months had elapsed. Nonetheless, following testimony from both plaintiff's and defense rehabilitation experts, the court awarded more than $2.4 million in damages. Finally, neurorehabilita tion professionals recognize that head trauma may result in seizure disorders and posttraumatic epilepsy [57]. Statistically, about 5% of patents with head injuries may be expected to develop epilepsy and, when intracranial hematoma or skull fracture is present, the incidence is somewhere around 30% [58]. Sometimes seizure disorders arise long after the time of a trauma. In those instances, plaintiffs confront the prospect that future development of posttraumatic epilepsy will occur, even though symptoms have not manifested themselves at the time of a legal settlement or trial [59]. If plaintiffs who are at risk for late development of posttraumatic seizures are to recover damages for that condition, neurorehabilitation experts must testify regarding that prognosis. The danger of future convulsions has long been recognized by appellate courts as a legitimate element of damages for which a monetary award can be made [66-68]. The various scenarios described above constitute only a few examples of compensable injuries which may initially be misdiagnosed or overlooked. Nonetheless, each of those conditions will support damages awards in otherwise meritorious cases. For this reason, clinical experts must be prepared to discuss any existing relationship between the traumatic event which is the subject of the litigation and any claimed injury. 5. Conclusion In this paper we have reviewed the medicolegal aspects of T~IjSCI in light of the emerging field of neurolaw. It is clear that neurorehabilitation

specialists have important roles to play during litigation. When clinical experts and trial lawyers work together to bring credible evidence before courts and juries in civil cases, they participate in a system of justice which is designed to promote the overall well-being of persons whose lives have been forever altered by injury. While no branch of medical jurisprudence, however well conceived, will likely ever save a life, neurolaw can contribute to improving quality of life for people affected by TBljSCI. Certainly this is a worthy goal for all caring professionals. Acknowledgements The author thanks J. Anderson Harp and Tyron Elliott for the many contributions they have made to the development of neurolaw and also thanks Eugenia S. Taylor for her assistance in the preparation of this manuscript. References [1] Goodall P, Lawyer HL, Wehman P. Vocational rehabilitation and traumatic brain injury: a legislative and public policy perspective. J Head Trauma Rehabil 1994;9:61-81. [2] Hinnant D, Tollison CD. Impairment and disability associated with mild head injury: Medical and legal aspects. Sem Neurol 1994;14(1):84-89. [3] Lemkuhl LD. Brain Injury Glossary. Houston, HOI Publishers, 1993. [4] Weed RO, Field TF. Rehabilitation Consultant's Handbook, Revised Ed. Athens, GA, 1994. [5] Taylor JS, Harp JA, Elliott T. Neuropsychologists and neurolawyers. Neuropsychology 1991a;5:293-305. [6] Taylor JS. Neurolawyers: Advocates for TBI and SCI survivors. The Neurolaw Letter 1991;1(2):1. [7] Taylor JS. Neurolaw: towards a new medical jurisprudence. Brain Injury 1995;9:745-751. [8] Brooks N. Head injury and the family. In: Brooks N, ed. Closed Head Injury: Psychological, Social, and Family Consequences. New York: Oxford University Press, 1982. [9] Malec JF, Smigielski JS, DePompolo R et al. Outcome evaluation and prediction in a comprehensive integrated post·acute and patient brain injury rehabilitation programme. Brain Injury 1993;7:15-29. [10] Spivak G, Spettel CM, Ellis DW et al. Effects of intensity of treatment and length of stay on rehabilitation outcomes. Brain Injury 1992;6:419-434. [11] Packard RC. Mild head injury. Headache Q 1993;4:42-52.

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