By Alice Hall, serious injury solicitor at Irwin Mitchell.
Neurocognitive deficits caused by traumatic brain injury (TBI) can be one of the more challenging injuries to prove and as a Claimant solicitor; it is my client who bears the burden of proving every aspect of their injuries and resultant losses.
I have seen that it is often the case that mild TBIs are just one of many injuries, whilst other injuries may present as far more life-threatening, particularly during the emergency stage of treatment.
Sometimes, therefore, mild TBIs are either not fully diagnosed at the outset, or they are noted but are not treated as a priority in comparison with other more seriously recognised injuries at the time, which may be more obvious and more pressing.
Claimants are often then discharged from hospital with their physical injuries having been treated and follow up arranged for Occupational Therapy input and Physiotherapy, but with no neurological or neuropsychological investigation or follow-up.
This is then often further complicated by the subtle ways a mild TBI can manifest itself. For example, they may cause issues such as dizziness, fatigue, tinnitus, loss of smell or taste, difficulty concentrating, multi-tasking or changes in mood or personality.
Sometimes, these issues are picked up only by family members or friends; with the symptoms being so subtle that they go unnoticed by the injured party themselves, particularly when they are focused on recovery from their more obvious physical injuries.
I have had Claimants approach me following a serious injury and it is only at that point through my discussions with them that the possibility of a TBI is first explored, and that can be something which can be quite shocking and upsetting for an injured person to first consider.
In proving such an injury, expert evidence, particularly neurological and neuropsychological, will obviously be key.
The difficulty is often that, in the absence of objective evidence of a TBI shown for example by way of day-of-injury imaging, expert evidence must be unequivocal in determining the presence of any TBI or otherwise, which of course is not always possible for a variety of reasons.
However, in recent years, there have been reports regarding seemingly exciting new technologies that have been developed with the aim of gathering objective evidence regarding the presence of TBI.
For example, there has been research into the use of ‘Diffusion Tensor Magnetic Resonance Imaging (DR-MRI)’ – which evaluates water movement within the brain to locate brain cells that are not functioning properly – which has been shown to provide objective evidence of TBI.
There have been other developments for example, specific blood tests which may measure plasma-based metabolomic biomarkers, which have been shown to indicate elevations in metabolites in individuals who have suffered TBI when compared to non-injured control participants.
Matters can be further complicated in litigation if, once expert evidence is obtained, the waters become muddied with suggestions of there being overlying psychological components to what is suspected as being a TBI, or potentially experts being of the opinion that the symptoms complained of are entirely psychologically based.
Of course, when Claimants have been through trauma, it is not uncommon that they will present with some sort of psychological injury in addition to their other injuries.
The difference – whether the presenting symptoms are caused by TBI or some psychological component – is essential in many respects. First and foremost, the treatment that the Claimant will be recommended to address any neurocognitive deficits that they present with, must be recommended in line with its underlying cause.
Failing this, a Claimant risks undergoing potentially lengthy, costly and challenging rehabilitation which may turn out to be wholly inappropriate to their condition.
Secondly, the quantification of damages is also influenced heavily by the nature of the injury, both in terms of the PSLA (pain, suffering and loss of amenity) element of the claim, which refers to the sum of compensation that a Claimant is awarded to compensate them for having suffered the injury itself.
This element of any award is guided by a set of guidelines which include brackets of awards for every injury and, within that, a range of severity.
Whether such neurocognitive deficits are presenting as a result of TBI, or psychological injury, or a combination of both, will determine which section of those guidelines, and which bracket, a Claimant will be assessed under, hence influencing the ultimate award that they receive.
Further, thought must also be given in any personal injury claim regarding what other losses a Claimant has, or will, suffer as a result of their injuries e.g. loss of earnings, care, case management, rehabilitation, aids, equipment.
Again, the nature of the injury will permeate all other aspects of the quantification of the claim, particularly if, depending on the nature of the injury, the experts consider that the prognosis is significantly different in either scenario.
The danger in this situation would be that a Claimant would be at risk of either being significantly under or over compensated, which would of course be entirely inappropriate.
Whether such deficits are caused by TBI or psychological elements will potentially have a significant impact on a Claimant’s long-term prognosis, and therefore the compensation to ensure that they are adequately compensated to reflect whatever their future needs look like.
For example, it is widely accepted that there is an increased risk of various serious long-term medical conditions, including epilepsy and dementia, in people who have suffered TBI.
One recent study concluded that there was more than a two-fold increase in the risk of dementia in those with TBI, even in those who did not suffer any documented loss of consciousness at the point of injury.
Of course, the costs involved if either of these conditions materialise are potentially huge. This is often addressed in litigation by way of provisional damages. Provisional damages allow greater security for Claimants if there is a chance in the future that may develop some disease or serious deterioration in their condition.
This provides the Claimant with an option to return to the Court to seek a further sum of compensation if they do indeed deteriorate significantly after the original claim has been settled.
This is in contrast to the normal course whereby a personal injury claim is settled in “full and final” terms, meaning that there would be no scope to re-open a case and pursue additional compensation should the injured person’s injuries or condition significantly deteriorate beyond what had originally been envisaged.
