Article by Priscilla Cicek – SPECT scans at trial
Published by The Lawyer’s Daily, part of Lexis Nexis Canada Inc.
How do you approach case dealing with mild traumatic brain injury?
(December 15, 2020, 2:21 PM EST) — In our previous article “Considerations for Concussion/Mild Traumatic Brain Injury Cases” we commented that, “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 singlephoton 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.”
These cases are challenging and the primary reason for this challenge is that objective evidence, until now, has been lacking. Most cases dealing with concussion/mild traumatic brain injury (mTBI) are presented only with subjective evidence, which includes the client’s reported symptoms post-injury, including collateral witnesses, health-care treaters and work colleagues who can comment on changes observed in the injured person both pre- and post-injury.
In some cases, there is not a clear or accurate documentation of the symptoms the injured person may be suffering from. This may result as the injured person may not know specifically what to report and/or fails to identify all of the symptoms they are experiencing. Further, health-care professionals may not be asking the right questions. A careful review of the client’s symptoms is required, and a useful tool for this is a Concussion Screening Checklist.
The challenge in managing mTBI cases from a legal perspective as noted by multiple trial lawyers is that presenting these claims at trial without objective evidence comes with risks.
Diagnostic tests are available in Canada that offer objective evidence in proving what we call the “invisible injury,” mTBI. This testing, which includes the quantitative EEG and SPECT scan, is not only helpful in assisting physicians with a diagnosis and creating a customized treatment plan, but offers compelling evidence in presenting a claim for damages resulting from mTBI.
Trial lawyer Bryan Fitzpatrick, from Pushor Mitchell in Kelowna, B.C., was faced with these challenges in one of his cases. I had the opportunity to interview Fitzpatrick to discuss how he used SPECT imaging at trial to compel a favourable outcome for his client.
Summary of case
This was a motor vehicle claim. Two separate accidents. Whether there was a mild traumatic brain injury was a contentious issue at trial. Almost 10 years had transpired from the time of the first accident to the time of trial. My impression was that at the time of the first accident, mild traumatic brain injury was poorly understood, but with the passage of time people developed a greater awareness of mild traumatic brain injury.
There was a movie, Concussion, starring Will Smith and regarding continuous concussion cases involving NFL players, which shed more light on the severity of concussions — even more in the last five years. This is a topic that is at the forefront of people’s minds with contact sports such as hockey and football due to injuries to their children. Prior to that, in the mid 2000s, this was not the case.
My impression was that many family doctors would say “OK, you got your bell rung, now go sleep it off.” When a patient would come in and be examined after an accident, [the doctors] generally wouldn’t note all of the symptoms of a brain injury. They were not fully documenting these types of complaints, and this resulted in the clinical records being rather sparse in terms of documenting a brain injury.
The CT scan and the MRI would be clear and that would make it very challenging because the question [that would be asked] would be, “Where is the evidence of a brain injury?”
In our case, fortunately, a chiropractor had made very detailed observations of post-concussive symptoms and documented the bruise where the client’s head struck the window on the vehicle. We were able to go back and refer to those records and tie that into what we saw on the SPECT scan. To add to the evidence from the chiropractor, we also produced imaging from the SPECT scan. The SPECT scan was helpful as it identified the location of the brain injury which was consistent with where the bruising was noted by the chiropractor. In my view, SPECT imaging had a profound effect on the jury in this case given how consistent it was with the other evidence we tendered at trial.
How many years post-collision did you seek SPECT?
It was approximately nine years after the first motor vehicle accident that the SPECT scan was undertaken.
What specifically did SPECT show you in terms of the injury?
The SPECT showed there were changes in perfusion or blood flow in the area of the brain that was consistent with the injury to the head. We also were provided with the Digital Imaging and Communication in Medicine (DICOM) images of our client’s brain which was key.
In this case, the SPECT images were reproduced and were reviewed by a nuclear-medicine physician to confirm that the illustration is an accurate image of the client’s brain, and an accurate depiction of the injury, which was key in this jury trial.
When did you serve SPECT on opposing counsel?
We gave seven days’ notice prior to trial of the SPECT images. However, it is prudent to incorporate SPECT into your neurological medical report and serve it on the opposing party prior to your expert evidence deadline. (In B.C., the deadline is 84 days prior to trial.)
The SPECT images were generated from the SPECT scan of the client’s brain. The case law is very favourable and clear in getting these images in as we were giving an accurate representation of the plaintiff’s brain. We were not showing up with a skeleton or a prop that was not necessarily a representative of the individual plaintiff; the image that was being portrayed was that of the plaintiff’s brain.
How were you able to tie injury to motor vehicle accident after it was approximately nine years later?
The key is to establish the client’s medical baseline leading up to the accident. You need to demonstrate what the client’s status was medically in the year or two leading up to the accident and compare it to the onset of symptoms that happened after the accident.
It is also key to spend some time with the treating doctors, family and lay witnesses that can corroborate that there was a change in the plaintiff’s symptoms post-accident. That allows you to show from a logical standpoint that the symptoms must have been caused by the accident. This evidence can then be reviewed against the SPECT scan findings.
The SPECT in this case was so clear on where the injury was located within the brain. It just called out a brain injury. This was a fascinating case with the jury [being able] to have these SPECT illustrations. The records also documented the bruise on the head, which matched with the findings on the SPECT scan.
Can you identify some of the pushback attempts by defence?
Is [SPECT] more prejudicial than probative?
Was it actually incorporated into the expert report referred to? You want to make certain it is mentioned in the expert opinion; and
Make sure the illustration is not exaggerated. We had an illustration done and had an expert sign off and confirm that the image is an accurate depiction of the client’s brain noted on the SPECT scan.
SPECT was deemed admissible in this trial by jury.
What advice would you offer lawyers managing similar cases?
Learn about SPECT and have it done — the earlier the better. We also retained neurologist Dr. Manu Mehdiratta on this case. He took the time to educate me on SPECT and he was able to comment on the objective evidence of a brain injury as portrayed by the SPECT scan.
People with brain injuries are the “walking wounded”; no one can see their injury. With normal results on a magnetic resonance imaging (MRI) or computerized tomography (CT) scan, these injured people are told nothing is wrong with them. SPECT is an effective tool that can help prove precisely what is wrong and help people see what may not otherwise be seen.
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 electroencephalogram (EEG) and SPECT scan offers imaging of the brain that can then explain the ongoing symptoms and portends a poor prognosis.”
A clear diagnosis for peace of mind is really important.
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.
You may contact Priscilla Cicek at firstname.lastname@example.org. Visit our website at https://www.vp-group.ca/
See Disclaimer in About Page