Manhattan head injury attorney

Published in: The New York State Lawyers Institute, Bill of Particulars, Fall 2005 Edition
Written By: Kenneth B. Goldblatt
Title: Understanding & Litigating the Mild Traumatic Brain Injury Case


It is estimated that over 1.5 million people sustain a traumatic brain injury (TBI) every year. Of this group, between 75% and 80% sustain what is referred to as Mild TBI, or more commonly referred to as “concussion”. However, it is important to note that the term “mild” is factually a misnomer because the consequences of so-called mild TBI can be devastating. Common symptoms often include chronic headaches, nausea, fatigue, lack of motivation, difficulty with concentration and memory, sensitivity to light and noise, diminished appetite, and emotional ability While the overwhelming majority of people recover within 3-6 months, about 10% suffer persistent symptoms that may become permanent. These are the people that become our clients.

In the most common scenario, because there is no “blunt trauma” to the head, no documented loss of consciousness, no positive neuro-imaging and a normal “neurological exam”, the injury is often undiagnosed by emergency room personnel. Additionally, since the symptoms are often “invisible” and the injury is one that society, in general, is not familiar with, you are faced with the task of first convincing a jury that your client did, in fact, sustain an injury. Typically, the defense will accuse your client of “faking” or “malingering” or suffering from some psychiatric illness. As such, when handling a TBI case, it is so important to understand the nature of the injury and properly prepare the case for a jury. What follows below is a brief discussion on recognizing a potential MTBI case, suggestions on preparing the case and some common obstacles often encountered in litigating them.


Before one can successfully litigate a MTBI case, it is essential to understand the nature of the injury and the medically accepted diagnostic criteria thereof. The American Academy of Neurology 1 has identified the following diagnostic criteria for MTBI:

  1. Transient confusion;
  2. No loss of consciousness;
  3. Concussion symptoms or mental status abnormalities on examination that resolve in less than 15 minutes.

Similarly, The American Congress of Rehabilitative Medicine published the following criteria for a diagnosis of MTBI:

  1. Any period of loss of consciousness not exceeding 30 minutes;
  2. Any loss of memory for events immediately before or after an accident not exceeding 24 hours; and
  3. any alteration in mental status at the time of the accident including feeling
    dazed, disoriented or confused

Finally, in its report to the United States Congress 3 , the Center for Disease Control listed the following criteria for a diagnosis of MTBI:

  1. Any period of observed or self reported transient confusion, disorientation, or impaired consciousness;
  2. Any period of observed or self reported dysfunction of memory (amnesia) around time of injury;
  3. Any observed or self reported loss of consciousness lasting 30 minutes or less.

The common theme running throughout is that it is not essential to suffer loss of consciousness let alone blunt trauma to the head 4 . Similarly, it is rare that any neuro-imaging (Cat Scan and MRI) will be positive. Just as importantly, observable symptoms usually resolve quickly, probably before the arrival of police and/or EMS personnel which likely explains why most concussions are not initially diagnosed by emergency and/or hospital personnel. Despite the initial non-diagnosis, it is likely however, that over the ensuing 72 hours, your client will begin to experience many symptoms associated with brain injury.


Like any client intake, with a MTBI case, it is extremely important to obtain a thorough understanding of the dynamics of the accident as well as a description of injuries and symptoms. When your client describes suffering symptoms discussed above, you should become alerted to the possibility that your client may have sustained a TBI. At this point, it is essential to obtain additional information, especially with a vehicular accident where it may be necessary to perform a biomechanical analysis 5 . In these instances, it is essential to know the height and weight of the client, their exact body position within the vehicle as well as the position of the seat they are occupying, whether they were wearing a seatbelt at impact and the speed of their vehicle at impact, 6 . When possible, retention of the vehicle is helpful so as to allow identification of points of impact 7 . At the very least, photographs of the damage should be obtained.

New York City head injury attorney

Published in: The New York State Lawyers Institute, Bill of Particulars, Fall 2005 Edition
Written By: Kenneth B. Goldblatt
Title: Understanding & Litigating the Mild Traumatic Brain Injury Case



In addition to retrieving all post accident medical records, it is essential to attempt to obtain all pre-accident medical, employment and educational records dating as far as back as possible. It is also necessary to ascertain whether the client has a history of psychiatric/psychological intervention, alcohol and/or substance abuse and whether they have sustained a prior head injury. Additionally, since it is possible your client will experience emotional/personality changes, it is important to obtain the names of people who have known the client pre-injury to attest to the post accident changes in the client.


Whether or not your client’s concussion was diagnosed in the hospital, at some point, the client will have been seen by a neurologist who undoubtedly would have either diagnosed the concussion or confirmed an earlier diagnosis. At trial, the neurologist is called to explain the anatomy and physiology of the brain, the basis for the diagnosis of TBI as well as explain the absence of such a diagnosis in the emergency room. Additionally, the neurologist must be able to relate the client’s symptoms of injury to each part of the brain.

Since often, the post concussion symptoms are related to a shearing injury, included in this testimony should be an in depth discussion on “Diffuse Axonal Injury” (DAI) which is the tearing, shearing or stretching of the axons ( the neural transmitter) that connect brain cells and permits them to communicate with one another. This disruption renders the axon non-functional and permits toxins to enter into the brain cell resulting in the slow deterioration of the cell8. The extent of the diffuse injury correlates to the severity of symptoms with more diffuse injury resulting in serious and significant cognitive and behavioral impairments9

The treating neurologist must also explain the role of the neuropsychologist in diagnosing the client’s injuries while acknowledging the reliability of neuropsychological testing over the neurological “mental status exam” and their reliance upon the findings of the neuropsychologist10.

In addition to the above, depending upon the nature and/or severity of your client’s impairments, your client may also be seen by a Neuropsychiatrist and/or a Neuro-Otolaryngologist. In developing your case, you may utilize a biomechanical engineer while a Vocational Rehabilitationist , Life Care Planner and Economist may be used in developing your client’s economics damages. Finally, it is essential to utilize the “before and after lay witness” to document the post accident changes in your client.


Typically, in a MTBI case, there are three common arguments relied upon by the defense:

  • 1. The client did not sustain an injury and is faking symptoms;
  • 2. The client suffers from no residual symptoms; and
  • The symptoms are the result of a pre-morbid condition.

In attempting to prove any of the above, the defense usually relies upon a general neurologist who lacks specialty in TBI and who has based opinions on the results of a standard “mental status exam”. While all three of the defenses can be overcome by a vigorous substantive cross examination of the witness on brain injury, initially, the focus in on establishing that the witness is not an expert in brain injury. In fact, one of the most unique aspects of litigating a MTBI case is the different approach to cross examination of the defense neurologist.

In most instances, the credentials of the expert is not an issue. Rather, the cross examination focuses on the doctor’s substantive opinion which is based upon the doctor’s examination, the documents that were reviewed and the extent of information the doctor had on your client’s pre-accident activities. However, in a MTBI case, the credentials of the defense witness is THE issue and the goal is to establish the witness is not an expert in the field of brain injury. As such, initially, you are challenging the credentials of the witness to render an opinion rather than the opinion itself. This is accomplished by a thorough Voir Dire of the defense neurologist and, if done properly, negates any impact the witness may have before they offer any direct testimony.

A sample Voir Dire would include the following:

  • Doctor what percentage of the your practice is devoted to treating patients with TBI?
  • What research have you conducted or participated in?
  • What peer reviewed articles have you had published?
  • Are you a member or have you been a member of any committee within the American
  • Academy of Neurology devoted to TBI research?
  • What conferences have you attended on TBI?
  • Have you lectured on the subject matter?
  • Do you have any affiliations with brain trauma rehab centers?
  • Do you subscribe to any of the following journals?
    • Neurology11
    • Brain
    • Journal Of Head Trauma Rehab
    • Journal Of Neuropsychiatry
    • Neuroradiology
  • Can you tell us what the American Academy of Neurology’s diagnostic criteria for MTBI?
  • What about the American Congress of Rehabilitative Medicine?
  • Do you get referrals from other neurologist to treat patients with TBI?
  • Do you hold yourself out in the medical community as an expert in the field of TBI?
  • If not, then why are you attempting to do so in front of this jury?

After discussing these topics, it should be apparent that the defense neurologist, other than practicing general neurology, lacks training and experience in treating patients with TBI and certainly lacks the credentials to render opinions on the subject matter. This leads to the almost rhetorical concluding questions as to why the neurologist deems themselves an expert in brain injury.

Below are excerpts from the conclusion of an actual Voir Dire of a defense neurologist in a MTBI case where the witness, though given numerous opportunities, simply would not admit he was an expert in the field of brain injury.

Q: Doctor, in light of what you have just said, do you consider yourself to be an expert in the field of traumatic brain injury?

A: I am not entirely clear what legal ground I am getting into. I mean, I do what I do. I treat patients who sustain traumatic brain injuries with what I consider to be professional expertise.

Q: I understand that. My question is based upon your training,, your research, your publications, your affiliations, the percentage of time that you deal in your practice to treating people who have sustained head injury, do you feel that you are an expert in the field of traumatic brain injury from a medical perspective?

A: From a medical perspective, I will answer the question the sane way. I consider myself to have professional expertise. I do not feel unsure of myself. I feel that I provide very good quality medical care to patients who have traumatic brain injury.

Q: I am not questioning the quality of your medical care. The question is given the limited percentage of work with head injury, your lack of any research in the area, your lack of any lectures to peers in the area. Do you consider yourself to be an expert?

At this point, the Court intervened sustaining a form objection but the point had bee made. While the Court ultimately permitted the witness to testify and render an opinion that the plaintiff had not sustained any injury and was not suffering any symptoms12, after a thorough cross examination on substantive issues, by their facial expressions as well as their verdict, it was patently clear the jury was not persuaded by the defense neurologist.


When faced with either of the first two defenses, it is quite essential to be prepared to confront the defense neurologist with the prevailing peer reviewed medical literature. Undoubtedly, any opinion that your client did not sustain a brain injury will be based upon the lack of any initial diagnosis in the hospital, the fact that your client did not lose consciousness and the lack of any positive neuro-imaging. The witness can easily be confronted with the accepted diagnostic criteria, most notably those promulgated by the AAN. Likewise, it is universally accepted in the medical community that the lack of positive neuro-imaging does not mean a person did not suffer a brain injury.

The opinion that your client does not suffer any lasting symptoms is invariably based upon the general “mental status exam” performed by the defense witness. However, the treating neurologist will already have explained to the jury the limitations of such an exam and the necessity for formal neuropsych treating. While the defense neurologist will deny this, this position is supported by the AAN. Moreover, before and after witnesses will also have testified to the changes in the client

Finally, with respect to the defense that the client’s symptoms are related to a pre-morbid condition, including prior head injury, depression or substance abuse, among others, it is important that your experts discuss the significance of a person with any of the above history suffering a brain injury and the likelihood that such a history increases the risk for a poor recovery. In essence, the treating experts are advising a jury that, given the client’s per-morbid history, there is not a worse person they can think of to sustain TBI. This is not, I repeat, not an exacerbation of a pre-existing injury. Rather, it is an increased susceptibility to injury anticipated by PJI 2:283 and in light of the distinct damages that a jury is permitted to consider in the respective PJI charges, this is a crucial distinction.

In light of the obstacles likely to be encountered in litigating a MTBI case coupled with extensive time necessary and the related expenses, like medical malpractice, it is extremely important that the practitioner carefully choose their cases. Additionally, it should be noted that in light of the nature of the injuries, TBI client’s tend to be the most difficult to represent. They are the most needy and often, due to the invisible nature of the symptoms, the least sympathetic. As such it is important that the practitioner and their staff treat these clients with a firm, but caring hand. In the end, it promises to be a rewarding experience.

New York State Trial Lawyers Institute, “Bill of Particulars”, Fall 2005

1 Neurology, 1997, 48:581-585 “Practice Parameter: Report of the Quality Standard Subcommittee”.

2 Journal of Head Trauma Rehabilitation 1993; 8(3):86-87, “Definition of Mild Traumatic Brain Injury” developed by the Mild Traumatic Brain Injury Committee Of The Head Injury Interdisciplinary Special Interest Group Of The American Congress Of Rehabilitative Medicine.

3 Center For Disease Control Report To Congress On Mild Traumatic Brain Injury In The United States, September 2003.

4 It is commonly held that concussions often are the result of a rapid acceleration/deceleration of the head, the same mechanism of injury as cervical connective tissue injuries.

5 When discussing the mechanism of injury of MTBI, the essential discussion must center around the field of impact biomechanics. This is a complicated subject matter and requires an in depth discussion beyond the scope of this article.

6 Assuming there is more than one vehicle involved, during depositions, the speed at impact of the other vehicle can be ascertained. However, in a biomechanical analysis, the relevant factor is not the speed of the vehicles, but rather, the change in velocity of your client’s vehicle as a result of the impact.

7 A biomechanical engineer cannot base opinions on whether the accident dynamics were sufficient to cause an injury based upon the extent of vehicle body damage. What is relevant is the point and angles of impact.

8 This process is called mechanoporation and is discussed in depth by David Graham and Thomas Gennarelli in their chapter on Trauma in Greenfield’s Neuropathology, 197-248, (1997).

9 In Roness v. Federal Express , 284 AD2d, 208, 726 NYS2d 645, the First Department recognized Diffuse Axonal Injury as a significant Traumatic Brain Injury and upheld a seven figure award for 4 years of past pain and suffering.

10 In 1996 the American Academy of Neurology published a position paper acknowledging that a neurological mental status exam is not designed to nor is sensitive enough to identify subtle cognitive

11 Almost every neurologist subscribes to this journal. It is important to get the witness to acknowledge its authoritativeness since the AAN published a position paper acknowledging the utility of formal neuropsychological testing over the mental status exam.

12 While one would always seek to preclude the witness from rendering an opinion, this author feels it is more beneficial to have the admitted non-expert testify. This permits for substantive cross examination, during which the basis for all opinions can be undermined. It also permits the cross- examiner to demonstrate to the jury their own substantive knowledge of the subject matter, which is essential in any cross examination. Finally, it permits one to comment in summation on the fact that the defense’s position supported by the opinions of an expert who admittedly is not an expert.