In a serious injury case, it is common for there to be a dispute about whether an individual has sustained a traumatic brain injury with likely subsequent lifelong problems or whether they have suffered from a psychological reaction which, with appropriate treatment, could result in a full recovery.

This is an important argument because it can significantly affect the rehabilitation that is required to optimise recovery and the level of compensation awarded. The issue tends to arise when there has been a closed head injury (i.e. an injury which does not penetrate the skull).

The starting point is to review the notes and records and take a detailed history from the family member and, if possible, the injured person. There are three primary ways to establish, on the face of it, whether someone has sustained a brain injury:

  • Radiology – if there is evidence of lesions on a CT and / or MRI scan, it is fairly conclusive evidence of a traumatic brain injury. A CT and MRI scans will show macroscopic damage, although not necessarily microscopic damage. Although an abnormal scan provides positive evidence of a brain injury, a normal scan does not necessarily rule out that one has been sustained.
  • Amnesia – if the injured person does not have a clear and continuous recollection of events before (retrograde amnesia) or after (post-traumatic amnesia) an accident, it is indicative of a brain injury. Retrograde amnesia is of less importance as it does not correlate as well with severity and outcome as measures of post-traumatic amnesia do.
  • The depth of the coma – if there has been a loss of consciousness, this is usually indicative of a brain injury. This tends to be measured by assessing the Glasgow Coma Score (“GCS”). Headway, on their website, describes GCS as “A score given to head injured patients starting immediately after the head injury to measure the degree of unconsciousness. A score of 7 or less indicates that the person is in a coma. A maximum score of 15 indicates that the person can speak coherently, obey commands to move, and can spontaneously open their eyes”.

The Mayo system is probably the most frequently used particularly in the context of litigation. This system to measure the likelihood and severity of brain injury was developed in 2007. A brain injury is diagnosed and classified as moderate to severe if one or more of the following criteria exist:

  1. death due to the brain injury;
  2. loss of consciousness of 30 minutes or more;
  3. PTA of 24 hours or more;
  4. worst GCS in the first 24 hours of 12 or less (unless explainable by other factors);
  5. one or more of the following: intracerebral haematoma, subdural haematoma, epidural haematoma, cerebral contusion, haemorrhagic contusion, penetrating TBI, subarachnoid haemorrhage or brain stem injury.

From a litigation perspective, if a brain injury is suspected but not clear-cut, my personal approach is to instruct a Consultant Neurologist quite early on, ensuring that they have the context from the family members such as whether there are cognitive deficits and / or behavioural problems or other emotional disturbance. If the neurologist rules out a brain injury, that is the end of the investigation.

The rehabilitation can then focus specifically on treating the psychological disturbance. If the neurologist opines that there probably has been a brain injury on the balance of probabilities, he or she will, in all likelihood, suggest that a Neuropsychologist assesses.

The Neuropsychologist can ascertain whether there is any cognitive deficits arising such as, for example, impacted memory, reduced ability to plan and concentrate, difficulty multi-tasking).

At this point, the recommendation is usually to implement some neuro-rehabilitation; this may, however, have a focus on treating the psychological component.

It is important to “unpick” what symptoms are caused by the brain injury and what symptoms are caused by the psychological disturbance.

The rehabilitation programme should focus on both components. In reality, a lot of symptoms have a dual cause. It is important to ensure that the psychological disturbance is treated.

If done successfully and there are still clear cognitive deficits and / or behavioural and emotional disturbance, it is clear evidence that the organic brain injury is causing those problems and that they are likely to be lifelong.

It is much more difficult to prove that issues are caused by a brain injury if recommendations to treat psychological disturbance, such as post-traumatic stress disorder, have not been implemented appropriately or fully. If that is the case, there is always the argument that the symptoms may improve when the recommended and required rehabilitation is implemented.

There have been a number of cases where the Courts have had to determine disputes between parties about whether the injured person has sustained a traumatic brain injury. In the case of Siegel – v – Pummell [2014] EWHC 4309 (QB), the High Court specifically rejected the contention that because the Claimant had not suffered from a loss of consciousness, had a normal Glasgow Coma Score and did not have any lesions on a CT and MRI scans, he had not suffered from a diffuse axonal brain injury. The Claimant had proven that he continued to have a “cluster of symptoms”.

The Court considered the acute hospital notes, the mechanism of injury including whether there would have been a rapid acceleration / deceleration of the head (even without any blow to the head) and whether the cluster of symptoms is consistent with a Claimant having sustained a traumatic brain injury.

If the investigation is done properly and in a collaborative way, it can be determined relatively quickly whether there is an organic brain injury or not.

This takes effective communication, selecting the right experts at the right time, and collaboration with the Defendant team and all other stakeholders.

In the future, Diffusion Tensor Imaging, very sensitive MRI scans which can identify microstructural changes or differences, may be able to identify white matter damage which may narrow the scope for argument on these types of cases.

David is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.