The Search for the Perfect Plaintiff


Posted on 27th June 2008 by Gordon Johnson in Uncategorized

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The technique almost all attorneys hired by insurance companies use to defend brain injury cases, is to blame all of the problems the injured person has after the accident on psychological problems the plaintiff had before the accident. The reason is that post concussional symptoms have much in common with the symptoms someone might have from depression. For that reason, defense attorneys and the doctors they hire will blame it on pre-morbid (pre-injury) factors, even if there is no documentation of such psychological issues beforehand.

Thus, experienced plaintiff attorneys become progressively more gun shy about representing someone who has had documented problems before they got hurt. History of migraine, don’t want the case; history of counseling, don’t want the case; prior accidents, don’t want the case. The list of reasons to not represent someone with a brain injury could go on for two pages, but suffice it to say I have heard lawyers I respect give entire lectures devoted to all the reasons not to represent someone.

To a degree, such caution is a self preservation instinct, because the amount of money and time a plaintiff attorney invests in a case. When a plaintiff attorney chooses the wrong brain injury case, not only do they risk not making any fee for his or her time (almost all of these cases are handled on a contingent fee basis) but the lawyer may lose tens of thousands of dollars in out-of-pocket costs, to get the case ready for trial. I confess to turning down cases that other lawyers are willing to take a chance on. My firm and our colleagues only have so much time and resources. Sometimes, there are just too many negatives to justify going forward.

Yet while I turn down many cases, I am turning down fewer cases because of concerns about a pre-morbid mental health issue. While such issues make a case more difficult, they also make it more significant. Concussion, quite simply, does not disable most people. But it does disable a significant minority, probably in the neighborhood of 15%. Pre-injury psychological problems might make a case more complicated, but to me, they also make it more credible. The “perfect plaintiff”, is considerably less likely to be the person disabled by a seemingly routine concussion. That person would likely have a steady improvement over the first few days after the concussion, and like young jocks, be back in the game a week or two later.

Yes, I suppose there are cases where a remarkable individual – with no clouds on their medical or emotional history – suffers a moderate to severe brain injury and becomes clearly disabled. But if you represent only the “perfect plaintiff” you will turn down far too many people whose cases merit representation. While I choose my challenges carefully, the challenge of connecting pre-morbid vulnerabilities to actual resulting pathology and disability, is one I am shying away from less and less.

UW Helicopter Crash Kills Three Near LaCrosse, Wisconsin


Posted on 12th May 2008 by Gordon Johnson in Uncategorized

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When we first created in 1997, we were working with a trauma nurse from Froedtert Hospital in Milwaukee, Wisconsin in organizing and fact checking the page. At the time, I had asked her what the biggest break through which had occurred over the years in saving lives for severe brain injury. I had expected her to say the CT Scan which allows doctors to see the killer of increased intracranial pressure before it kills, or some other imaging or pressure related device. She surprised me with her answer: Flight for Life helicopters.

It was her belief that it was the Flight for Life Helicopters that rushed severely brain injured persons to the regional trauma center where she worked, that enabled all of the rest of modern medical science to intervene before death, or before more brain damage occurred. As being old enough to have watched every episode of MASH, it was easy for me to grasp the importance of what she was saying.

Ironically, I didn’t appreciate until I started doing death and brain injury cases from the aviation liability end, just how much those doctors and nurses who staffed those Flight for Life helicopters, risked their life to save the brain injured. Saturday night, three more died in this valiant cause in a helicopter crash near LaCrosse, Wisconsin. Dead are Dr. Darren Bean, nurse Mark Coyne, both of University of Wisconsin Hospitals and the helicopter pilot, Steve Lipperer. For more details, click here.

Today, all of those in the brain injury community should have a day of remembrance for the brave medical personnel and pilots who risk their life to save so many from death and further disability. Each time you see a Flight for Life, say a salute or a prayer for those who serve on board. Perhaps we can all plant a tree or a flower in honor.

TBI Act Reauthorization


Posted on 15th April 2008 by Gordon Johnson in Uncategorized

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From the Brain Injury Association of Wisconsin

  • TBI Act Reauthorization Update: Last week the US Congress passed legislation to reauthorize the Traumatic Brain Injury Act! The bill appears ready to be sent on to President Bush for his signature. In addition to authorizing ongoing CDC, NIH and HRSA TBI programs, the bill also authorizes a new study by the CDC and NIH in collaboration with the Dept. of Defense and the Dept. of Veterans Affairs to identify the incidence of brain injury among our veterans, especially veterans of Iraq and Afghanistan. Again, THANK YOU to all who took time to share their opinions with Congress regarding this legislation during the past year.
It takes a war or two, and badly thought out wars, to get some attention to brain injury and brain injury research. Congratulations to those advocates who got this bill passed. Certainly, the TBI act is important and helping our veterans with brain injury is important, too.

But how come the tail of the brain injury animal, war injuries, gets all of the research and attention? There are a million Subtle Brain Injuries© a year in the U.S. and perhaps, a few thousand in Iraq. What about all the civilians who have brain injuries? Isn’t it time we did some major research on those most likely to be disabled by brain injuries, those over 40 – especially women over 40, those with prior head injuries and those with co-morbid issues such as other neurologic or emotional disorders?

A Subtle Brain Injury is a complicated synergistic maze. Limiting our research to young jocks and war casualties is not going to enlighten us as to why some people have apparent full recoveries and others never get better. It is not an accident that there is consistently 10-15% of those with concussions who wind up with persistant post concussion syndrome. Let us start screaming louder so that the real pathology in those cases is understood, and treated.

Best Performance Method in Neuropsychological Assessment


Posted on 3rd April 2008 by Gordon Johnson in Uncategorized

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There are two fundamental premises upon which the statistical application of the science of neuropsychology is based: The first is that a determination can be made of what a given individual’s premorbid abilities were. The second is that an individual is giving consistent best effort throughout the test battery. Neither assumption works perfectly, but the extent to which these two assumptions work well enough, will determine whether legitimate statistical based diagnostic conclusions can be incorporated into the assessment. In today’s blog, we will discuss the Premorbid Ability assumption. In tomorrow’s, the consistent best effort issue.

Premorbid ability. By premorbid ability, we mean a given individuals abilities prior to the onset of the accident or disease process. If no assumptions can be made about premorbid ability, no diagnosis about “cause” can be made by a neuropsychologist. All they are capable of saying is that a given individual has certain weaknesses and disabilities, but no definitive diagnosis can be made. Thus, some method of assessing premorbid ability is essential.

Most neuropsychologists don’t look at enough information in determining pre-morbid IQ. They base far too much of their assessment with respect to pre-morbid ability on the test battery itself. In our earlier example of the person with the IQ of 135 post the accident, that is less of a problem. Clearly a person who has a post-morbid IQ of 135, was very superior before the onset. But most cases are not so clear cut. A previously brilliant person may not continue to have a very superior IQ after the accident. If certain deficits bring the person down into an IQ range of 110 or so, we would likely need to look for other evidence to determine IQ.

One way is by looking at the areas where they still have strengths. If their average scores are in the 130 or above area, and there are a few scores in areas we might suspect would be effected by the injury, then it might be easy to say this person was very superior before. But again, that is the easy pattern to spot. Most profiles are not that obvious.

Another method is to look at certain subtest scores, where it is believed that a given ability is unlikely to be substantially effected by the given injury. Reading scores are often thought to be an ability that is rarely changed significantly by a mild or moderate injury. Thus, a neuropsychologist might say that a person with a “very superior” reading score and a much lower current IQ, had pathological deficits, based on the retained ability to read at a high level.

All of these methods work far better with someone with a very high IQ. When you are dealing with people in the average range, IQ’s of 90-110, it becomes much more difficult to make such assumptions about premorbid IQ from subtest scores.

Another method is to assume IQ based on a assessment of that person’s educational level. So a person with a college degree would be assumed to have a higher IQ than someone without. The obvious flaw in such logic, that some brilliant people don’t go to college, isn’t even the most significant problem. The significant problem is that it groups all college graduates together. Ask anyone who went to college. Not all of their classmates were of equal intelligence and ability.

Another method, one I believe to be considerably better than the first two, is called the ‘best performance method.” The best performance method is based upon the assumption that a person’s highest areas of achievement are the best indicators of premorbid ability. If these areas of highest achievement are in contrast to significantly lower subtests scores that may point to pathology.

Of course, there is considerable disagreement as to how to apply the “best performance method.” Many neuropsychologists dismiss it as they interpret this method as applying only to the best performance on individual tests, within the full battery of tests. That would mean if the person got 99% in arithmetic or vocabulary, that would mean that such person is in the 99%. It is easy to poke holes in a restricted use of the “best performance method” because we all have normal variances in what we are good at.

However, another interpretation of the best performance method is that it makes a full assessment – not just of the scores on the given battery of tests – but also the person’s real world performances or achievements. For example, if a person has graduated from medical school, one assumes that they are very near the top of the pre-morbid ability level. Likewise, if they have risen to the top of any profession, they would be assumed to be near the top.

In my opinion, the overall preferred method, which of course is harder to reduce to statistical probabilities, is to use of the real world “best performance method”. Such method considersall factors, school records, work performance records, areas of retained strength on the test. If someone got a math score of 700 and a verbal score of 700 on the SAT when applying to college, they clearly were way above average at that time. If they went on to graduate from a competitive law school or medical school, we must almost assume that they were at the superior or likely very superior level.

If the scores were good, but not great, if they graduated from college with more than a B average and went on to have a successful career, we can’t assume they were only average. Whether they are high average or superior is open to interpretation but that is what professionals are supposed to do: make subjective interpretations of complex multi-faceted variables, to reach conclusions.

Who a person was before injury is far more complex than how well they do now on a reading score. Only if neuropsychologists look at not the basic outline of a person’s premorbid life, but level of achievement within that life, will neuropsychology be able to identify the true areas of acquired deficits and disability.

Tomorrow the concept of “consistent best effort.”

Advances in Neuroimaging


Posted on 25th March 2008 by Gordon Johnson in Uncategorized

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My topic for the rest of this week is advances in diagnosing brain injury thru improved neuroimaging. A recent study out of BYU, highlights some of the exciting changes that occurring, “New study shows brain changes from concussion
By Elaine Jarvik, Deseret Morning News Published: Monday, March 17, 2008.

The Deseret article begins:

“Even after a severe concussion, a brain can look normal and healthy on a traditional brain scan. But now a study co-authored by a Brigham Young University psychology professor, using a new kind of MRI technique, reveals brain changes that are subtle but significant.”

This article is talking about a technology called DTI imaging, but to fully understand the advances in neuroimaging, it is necessary to understand some basics about the science of neuroimaging and improvements in both the magnets and the software to interpret the raw information has changed.

The last three years have been an exciting time to be a brain injury lawyer because the implementation of 3 Tesla MRI scanners for clinical diagnosis of mild brain injury has resulted in an exponential increase in the number of abnormal scans for our clients. But increased field strength is part of the equation.


Tesla is the measurement of the strength of a magnet. 1.5 Tesla (1.5 T) is the current prevalent maximum field strength of MRI scanners found in US hospitals, with many facilities having scanners with weaker field strengths. While research facilities have been using considerably stronger field strengths than the 1.5 for at least five years, it wasn’t until mid 2004, that 3 T MRI scanners began to appear for clinical use. As I write this in March of 2008, there is likely a 3T MRI scanner at most major university medical centers, although many of these may still be restricted to research only applications.

One way to conceptualize the improvement in scanners is to compare such to similar improvements in the mega pixel capacity of a digital camera. An 8 mega pixel camera has roughly twice the resolution of a 4 mega pixel camera, and while the difference in MRI scanners don’t quite track a pure arithmetic improvement, the analogy holds quite nicely. After all, MRI scanners are essentially cameras, that use as the contrast agent, the vibrations of magnetized protons, instead of light.

My examination of a leading neuroradiologist, will a bit technical, will assist those who want to understand the details of these new advances:

My examination of a leading neuroradiologist in a recent case, may be helpful to understand the basic principles:

23 Q. My understanding is that MRI
24 imaging essentially uses an especially powerful
25 magnet with respect to 3-T to make the
1 molecules inside the brain resonate; is that
2 correct?
3 A. Correct.
4 Q. Explain what’s really going on
5 there.
6 A. What happens with an MRI
7 examination — for example, you mentioned
8 specifically 3-T. Well, the T stands for
9 Tesla. The more — the higher the Tesla
10 number, the more power the magnet. Which
11 really translates to your ability to see
12 smaller things.
13 So in many ways it’s analogous to
14 a microscope. If you have a higher powered
15 microscope you can see things better than you
16 can a lower powered microscope. An MRI
17 scanner is a higher powered. An MRI scanner
18 you can see things — many things you can
19 see better.
20 It’s not absolutely universal that
21 you see everything better, but for the most
22 part you see things much better on a higher
23 field strength magnet.
24 No matter what field strength
25 magnet you’re in, if I put you in an MRI
1 machine, basically what happens is that the
2 protons, which are part of the water
3 molecule, tend to line up with a magnetic
4 field.
5 So right now your water molecules
6 and your protons are just random in the
7 direction. They have a direction, and that
8 direction is random all over the place.
9 When I put you in an MRI machine,
10 they all line up. They all line up with a
11 magnetic field. And then what we do is we
12 give a radio frequency pulse. And it’s
13 basically very, very similar to an FM radio
14 wave. It’s almost the same energy as an FM
15 radio wave.
16 And basically what we do is we hit
17 your body with what’s called a radio
18 frequency pulse, which is really similar to
19 an FM radio wave. So it’s not dangerous.
20 There’s nothing bad about it. But what it
21 does do is it knocks those protons out of
22 that alignment.
23 And then as those protons come
24 back into alignment, they come back into
25 alignment at different rates, different speeds
1 based on the tissue, which is referred to as
2 a relaxation time.
3 So that the time it takes for
4 those protons to come back into alignment is
5 different for the skin, for the bone, for the
6 skull, for the cerebrospinal fluid. They all
7 have different rates.
8 The computer then assigns a gray
9 scale. So it’s kind of like paint by numbers.
10 If the relaxation rate has a certain number,
11 then it gets a certain color.
12 So basically, the computer does
13 something that’s completely analogous to paint
14 by numbers, and creates a picture out of
15 that.
16 And we do that with different
17 settings, depending on what we’re looking for.
18 And we can emphasize different tissues.

Increased field strength is only part of the breakthrough in neuroimaging. As more and more pathology is seen on these scans, neuroradiologists are realizing that what were considered to be insignificant findings on lower field scans, are of the pattern and nature most likely explained by traumatic forces, not disease processes or normal variants.

Dilated Perivascular Spaces in Identifying Mild Brain Injury