Myth No. 1: No physical injury means no TBI


A brain injury is easier to believe when there are also physical injuries like a herniated disc or CT findings like a subdural hematoma.

It makes sense that not all injuries are seen at current field strengths—every time we have increased MRI field strength, we have seen more signs of brain injury.

Talk about Natasha Richardson—she was walking and talking normally—then collapsed and died due to a TBI.

Explain the mechanism of the TBI and shearing injuries.

Have experts to explain relationship with your client’s symptoms with the areas of the brain injured.

Use experts and before and after witnesses to explain how devastating an invisible injury can be. Family members will be able to tell the jury more than the injured person.


Myth No. 2: No loss of consciousness means no TBI


People usually don’t know whether they’ve lost consciousness.

Talk to witnesses at the scene. Was the injured person combative, incoherent, etc.?

Get admissions from DME:

Would you agree person doesn’t need to lose consciousness to suffer a TBI?

Have you made a diagnosis of TBI for a patient whose hospital records indicated there was no loss of consciousness?

Have you provided care and treatment or recommended care and treatment for someone with a diagnoses of TBI who didn’t lose consciousness?


Myth No. 3: No head strike means no TBI


External physical force does not require a strike to the head

There is a difference between brain injury and head injury. The brain gets injured when the brain hits the skull.

A head can look “normal” and a brain injury can be present.


Myth No. 4: The client fully recovered from the TBI and remaining symptoms are due to preexisting conditions. 

DMEs like to say plaintiff’s ongoing symptoms are due to depression, medication, ADD, ADHD, and secondary gain.


Rule out all of the other dx: get birth records, school records, performance reviews, test scores, etc.

Ask DME: You’re telling me every other provider missed ________?

Three percent of articles say most people recover from TBI (and they’re written by defense attorneys) and 97 percent say people don’t recover from TBIs.


Myth No. 5: A delay of weeks or months before TBI diagnosis means no TBI from incident.


With MTBIs there may be very few symptoms initially.

MTBIs are often unnoticed until client is back in their established routine, at work, etc.


Myth No. 6: Mild TBI means mild impact.


Mild does not mean insignificant.

Mild TBI can be devastating, permanent, life lanterning, debilitating and catastrophic.

The fact that MTBI is often missed by MDs makes injured persons frustration and hopelessness worse.


Myth No. 7: There must be objective findings for there to be a TBI.


CT scans and MRIs of the brain can be normal even with TBI.

Get a second opinion of imaging. A lot of times ER records indicate imaging is normal when it’s not actually normal.

Coup countrecoup injuries don’t show up on CT scans or MRIs.

CTs look for bleeds.

MRIs don’t show function.

Changes in the brain develop over time.


Myth No. 8: Changing and evolving histories are treated as deliberate omissions and fraud.

Client may forget to mention an old MVA or prior injury during deposition.


Client has amnesia as a result of the TBI—over time memory may return and history may change over time.

Over time client fills in memory gaps with confabulation.

Tell client to testify “I don’t know” during depositions.


Myth No. 9: Client has pre-existing life issues

Ongoing problems are related to a bad past, bad job history, alcoholism, drug abuse, etc.


Embrace bad facts and share them with your expert.

Address bad facts head on. Tell the jury “this isn’t a perfect family” or “this isn’t a perfect person.”

TBIs don’t make a tough life any easier.


Myth No. 10: No property damage means no TBI


Make sure there’s no undercarriage damage. Get photos of any undercarriage damage.

If DME says there wasn’t a big enough impact to cause a TBI, ask whether he/she has reviewed photographs of the undercarriage and repair estimate.

Skin and bones are more fragile than steel and metal.

Educate the jury about body mechanics during the wreck.


Myth No. 11: No TBI since student gets good grades or has a good job

IME testing reveals client is still intelligent so there’s no TBI.


There is no correlation between high test scores or job performance and absence of brain damage.

You can have damage to one part of the brain that will have no impact on intelligence or memory.

You can have a loss of smell, taste, etc. and be high performing at school or work.

Correlate brain diagram to damage.

Ask DME:

Do you agree smart people can have brain injuries?

Do you agree if a person is functioning at a high level but has a TBI, even a little loss can be significant?

Do you agree this loss can result in a great deal of frustration?


Myth No. 12: IME Bullshit


Presume everything DME says is a lie.

Interesting the DME is the only one who finds nothing wrong with the client.

DME won’t have the science to back up his/her conclusory opinions.

Test the DME on anatomy. Question them about the brain. Think about having a radiology experience on the line during the DMEs deposition.

Get raw data.

Get experienced videographer to video IME. DMEs do shady things that show up on video.

Get RN to attend IME with client. The RN will understand what’s happening and what the DME is doing wrong.

Send client to IME and your expert on the same day.

Prior Conditions Exacerbating TBI: diabetes, depression, small vessel disease, pulmonary conditions, anxiety, prior TBI.

Ask DME:

Do you agree that a person can develop psychiatric or emotional problems as a consequence of TBI?

Do you agree that depression is one of the most common consequences of TBI?

Do you agree my client suffers from psychiatric or emotional illness?

Do you agree the presence of psychiatric or emotional illness complicates recovery from TBI?

Do you agree that a person can develop psychiatric problems following TBI which may persist even though neuropsychological testing is normal?


Myth No. 13: Plaintiff is litigious 


If someone is disabled from a prior back injury, he/she is left with a brain. If you add a TBI on top of a physical injury, the plaintiff is left with nothing.



Call it traumatic brain damage, not traumatic brain injury (injuries heal but damage does not).

Experts need to teach, not preach. Experts are effective when they can explain in very simple terms.

Send an investigator out to talk to neighbors, etc. about how the injured person and family are doing. Investigators make great witnesses since they’re not invested family members.

Don’t limit experts to your geographic area. A lot of times MDs will protect MDs with whom they work.

Depression and anxiety medication can hide TBI symptoms.

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