My article has been published by The Lawyer’s Daily, part of Lexis Nexis Canada Inc. Here it is and hope you enjoy the article and all the research that went into it:
Considerations in concussion, mild traumatic brain injury cases
By Priscilla Cicek
One of the challenging factors in managing concussion/mild traumatic brain injury cases is that often there is very little objective evidence. Careful management and presentation of these claims is paramount. A helpful exercise is to review concussion/mild traumatic brain injury cases that have gone before the courts and pay close attention to the evidence presented, the arguments put forth by the defence and most importantly the factors of consideration that compelled the court to award damages in favour of the injured plaintiff.
In Boudreau v. Zhang 2019 BCSC 1347, a 33-year-old female plaintiff was injured in a motor vehicle collision that occurred on Jan. 19, 2013. It was reported that the plaintiff’s vehicle, a Honda Fit, sustained $3,100 in damage, while the defendant’s vehicle, a Land Rover, sustained only $300 in damage. The plaintiff claims damages for concussion/traumatic brain injury including soft tissue injuries.
The common symptoms we see in these cases are headaches, dizziness, physical and mental fatigue, problems with memory, concentration, difficulties multitasking and in communication, irritability and driving anxiety. While liability was admitted, causation was argued by the defence.
It is important to identify the defence’s theory of the case. Reviewing and summarizing defence arguments in these cases assists with diligent management of existing concussion/traumatic brain injury claims. In the subject case, the defence argues that the symptoms suffered by the plaintiff are due to life stressors and/or pre-existing health issues suffered by the plaintiff and that the motor vehicle collision is not the cause of the ongoing symptoms the plaintiff reports.
In speaking with counsel for Boudreau, Dianna Robertson, of D. R. Robertson Injury Law, who works with seriously injured plaintiffs, stated, “This was a particularly difficult case; an important step in preparing these cases for trial is to focus on the impact of the injury on that particular person’s life, not the injury. It is important to particularize the impact on that person’s functional impairment, including the losses and limitations for them and their family.”
In addition, Robertson said, “Lawyers should embrace their client’s pre-existing issues and bring those facts to the forefront to assist in contextualizing the impact on the injured plaintiff’s life post-injury.”
The plaintiff in this case had stress and anxiety prior to the collision. She was opening a yoga studio, trying to get pregnant, dealing with weight issues and suffering from colitis. A further defence theory is that there was not sufficient force during impact to have caused a concussion.
From a review of the case law, it is common to see that either the credibility or reliability of a plaintiff will be challenged in order to create a negative contingency on the claim. In this case, the defence argued that the plaintiff downplayed pre-accident complaints, stress and colitis. Also, the plaintiff did not initially report concussion post-accident and allegedly exaggerated her driving anxiety. These arguments were not persuasive nor accepted by the court.
As noted, there is a lack of objective evidence in concussion/mild traumatic brain injury cases. In Canada, we now see quantitative electroencephalogram (EEG) tests available as a diagnostic tool, which provides objective testing for mild traumatic brain injury with a single-photon emission computed tomography (SPECT) scan for selected patients. Updated SPECT technology allows for more robust detection of mild traumatic brain injury and is more sensitive than a computerized tomography (CT) or magnetic resonance imaging (MRI) scan.
Dr. Manu Mehdiratta, neurologist at iScope Concussion and Pain Clinics and assistant professor at the University of Toronto, stated that “layering of subjective and objective testing together is how medicine works and the same applies to mild traumatic brain injury. The reported subjective symptoms of the plaintiff, along with the neurological examination, coupled with objective testing with a multidisciplinary team, is essential. The EEG and SPECT scan offers imaging of the brain that can then explain the ongoing symptoms and portends a poor prognosis.”
Another key piece of evidence in these cases is collateral witnesses who can corroborate the subjective complaints of the plaintiff. A very useful case that highlights the importance of collateral witnesses is the Supreme Court of Canada decision in Saadati v. Moorhead 2017 1 S.C.R. 543, a decision that all should take the time to review.
In this case, in the absence of a diagnosis, the Supreme Court of Canada concluded that the trier of fact is the ultimate decision maker and if that trier of fact accepts as credible an effect on a person and accepts as credible that this change has been caused by the accident in issue, then the victim is entitled to compensation. Saadati was successful in damages primarily based on subjective evidence by the plaintiff and the various collateral witnesses.
In reviewing factors to be aware of, the court will pay close attention to the following:
- The frequency and timing of the treatments both pre- and post-collision.
- Has the plaintiff used medication (even non-prescription) for pain control prior to the collision?
- A review of the reported symptoms directly after the collision. Key: Are you asking the injured person the right questions to extract this information? Often, injured plaintiffs are not always aware that the common symptoms they are suffering from are related to a concussion/traumatic brain injury. There are instances where physicians do not always ask the right questions to extract a full history of the symptoms suffered by the injured party. Pay attention to any improvements noted in the plaintiff’s symptoms post-collision. We often see “improvements” highlighted by the defence in order to diminish the value of a claim.
- Video surveillance and/or photographs posted on social media sites. This is often a strategy to diminish the credibility of the plaintiff.
- Is there any objective evidence? There are diagnostic tools available that may be considered. If not, experts will rely on the subjective complaints reported by the plaintiff in forming an opinion. The accuracy of this reporting is very important.
- The pre-existing history of the plaintiff will be reviewed and raised in court. You should know the plaintiff’s history well, e.g. prior injuries, personal health and life in general.
- Ensure the experts involved in assessing the plaintiff have all the material facts of the collision and history of the plaintiff. Instruction letters to experts should be carefully reviewed.
As is often stated by the courts in many of these cases, the evidence is primarily subjective. The court states in Mickelson v. Sodomsky 2019 BCSC 806: “In a case such as this, the injuries alleged are of the sort that manifest few objective signs.” Often there is an absence of abnormal neurological findings or an absence of any finding on the MRI. Therefore, careful management and presentation of these claims is essential.
In both claims, the plaintiff was successful in proving damages at trial. In Boudreau, the court awarded a total of $1,042,031 and in Mickelson, the court awarded a total of $761,478.
Finally, on client intake, be sure to have a comprehensive list of questions to pose to an injured party. A helpful client intake form is the “Acute Concussion Evaluation.”
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
Priscilla Cicek has worked in the legal industry for 25-plus years. She is a legal assessment specialist. She is also an instructor with the VCC Paralegal Department in Vancouver and owns and operates the legal blog Case Law Corner.
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