Notes
Emma Eccles, co-chair of the Weightmans Brain Injury Technical Unit and Matthew Snarr, barrister at Nine Chambers, discuss the complexities of Subtle Brain Injury cases in the first of a two part podcast.
Transcript
Emma:
Hello, and welcome to this subtle brain injury podcast brought to you by the Weightmans Brain Injury Technical Unit. My name is Emma Eccles. I'm a partner in the Weightmans Large Loss Team in Manchester and I have over twenty years’ experience in handling high value EL, PL and RTA catastrophic injury claims for insurers. I'm delighted today to be joined by Matthew Snarr, a barrister from Nine Chambers in Manchester.
Matthew is tier one ranked in both Chambers and Partners and the Legal five hundred and he acts for both claimants and defendants in large multi-million pound PI claims arising from brain injuries, spinal cord and significant amputations.
Matthew and I have worked together on numerous cases over the years and more recently on a large number of subtle brain injury claims being brought by high net worth individuals.
We've certainly seen a rise in these cases in recent years for reasons we'll investigate but safe to say subtle brain injury claims pose significant difficulties for our insurers and this podcast is designed to provide a commentary aimed at defendant insurers, their insureds, brokers and defendant lawyers, and a guide to help how to handle these cases when they arrive on your desk, how to manage the evidence, tactics and best practice.
Today's podcast is the first of two podcasts dealing with subtle brain injury claims. Today we'll look specifically at clinical markers, how TBIs are classified and why they pose insurers difficulties.
We'll also look at what evidence we need to gather in terms of documentation, witness evidence and scanning. The second part of the podcast will look at what medical experts we need to instruct, the use of early offers, tactical use of surveillance and intel, and how defendant insurers can challenge subtle brain injury cases. Matt, thank you very much for joining me today. We'll start by looking at the issue of clinical markers. So could you kindly talk us through the clinical markers of a TBI?
Matthew:
Yes. And thank you Emma, there are five core markers which I try to have regard to when litigating subtle TBI cases.
The first is the Glasgow Coma Scale, which is always my starting point. This is a neurological scale that assesses a person's consciousness.
The score is measured out of fifteen, and that's by reference to three factors, eye opening, verbal, and motor responses to stimulation.
The minimum score is three, which is totally unresponsive.
If you like, this is an immediate dashboard assessment of the severity of the injury.
A mild TBI would be classified as something within thirteen to fifteen, moderate nine to twelve, and, less severe or very severe, I should say, would be something that's less than nine.
The second marker is loss of consciousness.
We should be interested to ask, did the claimant lose consciousness? If so, how long for? And, again, ratings here would suggest, less than thirty minutes is mild, thirty minutes to twenty-four hours is moderate, and more than twenty-four hours is severe.
Post traumatic amnesia is another marker which we will be engaged with. This is the period post head injury where the patient is confused, disorientated, and unable to form new memories.
The patient will be awake and responsive, but may be asking repeated questions and seeking reassurance, sometimes acting quite strangely in my experience. This presentation is an indication of brain dysfunction. It's not always reliably measured by the clinical ED team, especially where there are other injuries at play. But tools when used are the GOAT, which is the Galveston orientation amnesia test or the Westmead PTA scale. These are standard PTA tools, and you will sometimes see these in the medical records where they are tracking where the PTA exists, and then they retest and retest to see how long the patient remains in PTA for.
As a rule of thumb rating, mild, PTA would be, less than thirty minutes, moderate, PTA for a duration of one to seven days, and severe TBI would be PTA for greater than seven days.
Imaging of the brain is our fourth clinical marker.
We're here. We're looking at CT and MRI scan reports.
We're looking to see what the radiologist has said, is shown and demonstrated on these scans. Is there bruising on the brain? If so, where is the bruising? Because that may relate to or correlate, I should say, to certain cognitive deficits. Is the bruising diffuse at multiple points on the brain?
Has the skull been fractured? Was surgery required?
I should add that, of course, you can have fractures without a TBI, but the incidence of the skull fracture denotes that a significant force is involved.
And then lastly is retrograde amnesia. This is the gap in memory before the accident.
Retrograde amnesia is much more variable and poorly correlated with severity of outcome. Neurologists tend to place much less weight on it.
Remember, the claimant might be being asked about these three years after the accident. So perhaps one of the points to remember about all of these markers, especially in subtle TBI cases, where they rely on somebody's recall is two points. One, it may be that the very injury that's being suggested they have, a brain injury, may impede their recall. But two, it's when they're being asked these questions because it may be the first time they've ever turned their mind to these questions is during the currency of litigation, which may be some period after the index accident.
Emma:
Thanks, Matt. I think that the two points I want to take away from this. Firstly, how difficult PTA is to assess and as you quite rightly said, often claimants are being asked this a significant amount of time after the accident And I've noticed that in UK hospitals, they don't tend to include assessments of amnesia, and this is different to, say, hospitals in, for example, Australia.
This can be open to, therefore, you know, misremembering by the claimant but also to exaggeration and that's something we need to be conscious of.
The second issue is of course imaging. So CT and MRI scans have been relied upon for many years and they're done both immediately in hospital by the NHS, they're done in subsequent monitoring appointments and also on a private basis and used in in PI litigation.
But diffuse tensor imaging, DTI imaging is much more sensitive, and these are often used where there's no evidence on an MRI or CT scan and indeed where there's no other objective evidence.
And so understanding the limitations of that DTI scanning is going to be really important, and that's something that we're going to move on to discuss later on.
Matt, could I just move on now to looking at how traumatic brain injuries are classified and why they can sometimes be controversial.
Matthew:
So the first point to make is that the classification is not always directly correlated to the outcome. Some people with severe TBIs might actually do quite well in the long term.
Conversely, people with subtle TBIs may not do well. This is the puzzle, TBI litigation.
There are different models used to rate or assess the overall severity of a TBI, but the Mayo criteria is the most prevalent in litigation.
This requires an assessment of the clinical markers which we've just discussed, and the grading tends to fall into three areas, a moderate severe definite traumatic brain injury, a mild probable traumatic brain injury, or a possible symptomatic traumatic brain injury.
The Mayo criteria has some quirks, which it's important to be aware of.
Skull fractures are considered as evidence of probable TBI even though, as discussed previously, that may not actually be the case. Even a few seconds loss of consciousness denotes probable TBI. Normal brain scans do not exclude TBI. This is correct, but it's something that we need to be aware of.
The Mayo criteria itself is not specifically designed to give a prognosis.
And going back to the point that I made at the beginning, that's a point to be aware of.
It's also important we are aware that this is, as many aspects of medicine are, a moving feast, and there are proposals afoot to introduce a new multidimensional framework for classifying acute TBIs based on four pillars.
And one of those pillars includes the Glasgow Coma Scale. So the four pillars will be, a) the clinical markers of GCS, b) biomarkers, which is the blood based indicators, c) imaging, so CT, MRI scans, and d) modifiers. That is what is the mechanism of the injury?
Are there comorbidities that are already existing? What psychosocial factors are immediately present? This is known as the CBI – M framework, and this is growing some traction in the neurological community.
Emma:
Thanks, Matt.
I always think that the key thing here is the claimant's recovery and the impact of the injury on their cognition.
I find sometimes that the neurologists and the other experts can sometimes get very very bogged down on the exact definition of the injury. Is it a mild injury? Is it moderate? Is it moderate to severe? Is it severe?
And actually what we want to know as defendant insurers and those acting for the insureds is what is the day-to-day impact on the life of the claimant.
And, for example, I recently had a joint statement where two neurologists preparing a joint report for the court and they spent the first half of the statement arguing between themselves as to the definition and actually I'm sure the claimant's solicitor was also reading it the same as me saying, well, what's the impact on my client? What are the heads of loss going to be? And so I think that's really important. So the focus has to be the cognitive tests, you know, and the objective evidence there.
Great. Well, I think we'll move on now to explaining for our clients what a subtle brain injury is and why that causes insurers such difficulty.
Matthew:
Well, a subtle brain injury covers a range of different scenarios. I think the first and and main type would be where the initial trauma, was mild and the clinical markers are low such that enduring deficits would either not be anticipated or no significant functional impact in day to day life would be expected. But, nevertheless, the claimant's presentation of ongoing cognitive, emotional, or behavioral problems such as concentration, memory, fatigue, irritability, headaches continues.
The second type is less common, but we see it, which is where the claimant has a a clear and obvious TBI with clear and obvious medical markers.
But they've done relatively well with low or non-existent neuropsychological deficits on testing.
But either, A), that individual struggles in the real world outside the examination room, or B), they may have led quite a busy or demanding life, for example, professionally, but have lost their edge, which impedes their ability to work. So for example, a veterinary surgeon who to all intents and purposes in a day to day conversation seems fine and may still possess a high level of knowledge about animals, etc, but struggles to be able to complete the job consistently well and to the proper level on a day to day basis.
Emma:
Thanks Matt, I completely agree these are the sorts of cases that I see particularly where professionals have led very busy demanding lives where there is a real alleged impact on their day to day life and particularly career progression.
Talking about difficulties for insurers and why these cases are so challenging, in my experience some subtle brain injury cases are often initially presented as low value claims that might be because at an early stage the claimant solicitors may not have identified it as a subtle brain injury case and therefore some of these cases are handled by less experienced handlers at insurers or defendant lawyers.
And for those reasons, the investigation and the work done on those cases is not as forensic or as detailed as it would be if it was in a large loss team.
Not all the records are obtained, facilities for own experts aren't requested and they're not as proactive. Suddenly the case is litigated, the insurer receives four or five expert reports suggesting a subtle brain injury and a large schedule of future losses and the defendant is immediately on the back foot.
The defendant insurer and their lawyers have to therefore do a lot of work quickly to ensure the insurer is in the best position to evidentially investigate and defend that claim. I also find that insurers can initially sometimes mistake subtle brain injury cases for psychiatric injury.
Some of the symptoms obviously do overlap, memory problems in the early stages, fatigue, headaches, concentration.
This is obviously true of the reverse, sometimes cases are presented as an SBI when they're in fact a psychiatric injury.
But, of course, it's important to identify at an early stage what the potential claim could be so that tactically you can deal with that case appropriately.
I think it's really important for insurers to look at developing internal training for handlers on red flags for SBI cases and it's true of defendant lawyers as well. I myself am doing some internal training at Weightmans for lower value teams on SBIs.
You know, red flags will include, has someone been hit on the head even if it's just a van door or have they fallen from height, is it a low speed collision, are there any personality or cognitive problems being described, has the claimant returned to work, what do the OH and personnel records say about that return to work.
So it's important to identify cases at an earlier stage as possible.
Emma:
Thanks, Matt.
Please could you explain to our listeners why looking at the physical evidence sometimes missed is so important on these SBI places?
Matthew:
So the physical evidence is important because the case is decided on all the evidence, and the medical evidence is only one part of the puzzle.
The reporting in the medical records may be inaccurate.
The insurer may want to challenge some of the assertions made in the currency of the litigation.
We often see, for example, a wide range of estimates as to the speed at which two vehicles which have collided with one another are travelling.
These estimates sometimes may increase the further away from the accident that they are provided.
The contemporaneous evidence of the accident itself represents the best evidence to assist the court to understand the mechanism of injury and the immediate post accident presentation of the claimant.
Of course, it may be that in investigating this physical evidence, it corroborates the claimant's case. So and if that happens, then all the better. Focus can move away from causation and onto quantum.
I think probably there are four core areas to be focusing in on.
Firstly, the objects themselves, by which I mean the vehicles, are there photographs of the damage that might give a feel as to the severity of the collision, or if, for example, something has broken or twisted, which the claimant has been standing on, then photographs of that will be useful.
Secondly, speed, understanding, what the estimates of speed are from all the parties concerned. Some motor vehicles now have event data recorders in them that will record speed or seat belt data. And, indeed, I've certainly been involved in some cases where the g forces themselves are being calculated within the event data recorder in the vehicle. So the event data recorder, the technology in the vehicles are always worth looking at.
Thirdly, photographs. In my view, photographs are key. Photographs of the scene of the accident. For example, where there's been a fall, which is often a cause of head injuries, understanding about the height involved, what the fall point was, how far the individual's fallen, where they landed, how they landed, are there immediate contemporaneous post accident photographs?
Is there blood? Does that show where the head was and which part of the head was injured? So never be afraid to ask the insured for this documentation or the police, the employer, or even the claimant. Certainly, a lot of the cases I've done involving falls on worksite, it's the claimant who will be providing the photographs because their colleagues have often taken photographs immediately at the scene. You'll often be interested in the post accident resting positions, particularly in pedestrian, vehicle cases where we want to understand what the throw distance of the individual concerned is.
Fourthly, just going back to this issue, which is witnesses to the accident.
Now my experience, a lot of subtle TBI cases or TBI litigation generally occurs within the context that liability is admitted. And the insurer sometimes takes the view that they don't need to go over the old ground of dealing with the accident circumstances because that's no longer relevant in terms of who's at fault. But in my view, it remains critically relevant.
It's always important to go back to the insured and always important if you can to obtain a signed liability or accident circumstances statement. You never know what may happen to the insured in the future.
Here, we should be interested to understand even where admissions of liability are made, We should be interested to understand what were the accident circumstances? How did it feel to the insured in their vehicle? What happened to the claimant? What did the insured see? What did they not see?
Where did the claimant end up at the end? Was there any conversation or interaction with the claimant after the accident? How did they seem?Did the insured themselves form any impression as to an injury, any injury, or the severity of the injury at that time?
Emma:
Thanks, Matt. And I think an important point to add there is about whether someone appeared concussed after an accident or whether they were knocked unconscious. Sometimes witness evidence can be useful on that because ambulance staff can come across them at a slightly later time.
I think the point you're making here is about early investigation and thorough investigation, securing witness evidence as soon as possible. And on a practical level, I find early face to face meetings with witnesses, involving counsel if required on larger cases, so that we're assessing the credibility of those witnesses. We're really analysing what they're telling us about the potential accident circumstances and the injury. And this all feeds into sort of a better assessment of the credibility of the SBI allegation and tactics.
So what can treatment tell us, Matt, about whether there is a brain injury?
Matthew:
Well, firstly, we're looking at the ambulance and A and E records. We're looking at the acute phase of the treatment, and I always like to look at treatment in terms of a timeline. I'm looking at the acute presentation, the first one to seven days, the subacute presentation over three to six months, the rehabilitation period that follows thereafter, and then present day or the litigation phases as it may be understood. And you're trying to follow through the chronology of treatment, what has been happening, what you might understand from the treatment that's been received.
So in the first instance, at A and E, what were the concerns of the clinician? Were they concerned about there being a brain injury or a head injury? What advice was given? What was recorded? Was there something else going on that may have distracted the clinicians, in particularly relevant in subtle TBI cases where it might not be noted in the first instance? And if there wasn't, then that's important to be aware of.
In that, subacute presentation phase, that three-to-six-month presentation phase, I think we're really looking here to understand what symptoms the claimant is reporting.
So if there's a delay in reporting symptoms, why is that?
If they are reporting symptoms, have those symptoms been consistently reported, or has the nature and extent of the symptoms changed over time?
And whilst this isn't specifically about treatment, I'm certainly interested in work because that's relevant especially in subtle brain injury cases where many Claimants do go back to work. How have they performed?
Have they achieved their KPI markers? Did they make their bonus? What does the appraisal as written up say about them? Have they, in fact, done better than they were prior to the accident? Have they achieved a promotion?
And then lastly, I try to have my eye on the litigation timeline and to understand and be aware of the presentation as presented and whether that in any way might be perceived to be influenced by what's been going on in the litigation.
So, for example, when the claimant issues proceedings, is that relevant to anything that we are seeing in the medical records? Is could it be argued?
Is it something we need to be aware of as to whether the litigation itself is in any way influencing the presentation?
Emma:
Thanks, Matt. That really useful. I think, you know, my key takeaway here is access to all the records, the medical records and the non-medical records, as early as possible because it can really build a picture for us. All the records means not just GP and some hospital records. It means ensuring you have regular updated records from the other side. So it's GP, hospital , all treatment, therapy, case management records, DWP records, and the OH and personnel records, as you mentioned, from the employer, which can be really, really helpful for our purposes.
And not just obtaining those records but cross referring them, creating that master chronology to identify any delays in reporting of symptoms or discrepancies, what is the claimant reporting to different people at different times, and what's he doing at work and what's he reporting to people at work that he can and can't do.
And when we talk about rehab records, it's not just the monthly reports that we need. We need daily records, full records, telephone calls, handwritten notes of meetings, we need everything.
If there is rehabilitation in the litigation on a joint basis, we need to make sure we attend the MDT meetings and we need to identify, you know, what the claimant's real needs are, what the case manager and the therapist really consider his care needs are, and to really get as full a picture, and you can get a wealth of information from those notes.
I think looking at what the family are reporting as well, is really important and also, you know, looking at certain demographics and what other factors there could be. So example women between the age of forty and fifty five, and menopause can have quite significant symptoms and there could be some overlap between symptoms and menopause and those relating to the SBI.
So moving on now to looking at witness evidence, Matt please.
What do we need to see to help us assess whether there is a brain injury?
Matthew:
So the first evidence you're going to see is from the family, and this evidence is to be looked at very carefully.
Here, they can inform the court about the presentation of the claimant prior to the accident and what if anything has changed since the accident.
In these cases, the claimant is often on a journey, and it's always important to try and understand the degree to which the claimant may have experienced improvements and whether or not a presentation that initially may have been quite significantly adverse, whether that's got any better, and one needs to scrutinize the witness evidence carefully in this regard. What are the family noticing are ongoing problems? Is the evidence properly presented by way of evidence based examples? And when I say that, I mean something more than the normal vicissitudes of daily life or middle aged life with the struggles of balancing with the family. But, certainly, the family's evidence should not be overlooked. It is a critical aspect of the judge's determination of this issue. The rehab team, it's an increasing phenomenon that the rehabilitation team are providing witness evidence.
I think in these cases, we have to look carefully as to what is being said in this evidence, whether or not it's consistent with the rehabilitation records, and whether or not any of the evidence itself potentially is moving into the realm of opinion evidence, in which case we may need to decide whether we agree that should go before the court or not.
I'm going to go back to the issue of work because that is something we see in subtle brain injury cases. Has the claimant, provided a statement from a colleague, a former colleague, a client, or a manager? That may be useful in understanding the depth of any functional deficits. If they haven't, why haven't they? The absence of evidence is sometimes is telling us the presence of evidence.
And lastly, I just go back to the insured. Always remember the point that I made previously, which is we always go back to the scene of the accident, particularly if there's been some interaction. But, of course, the insured sometimes is the claimant's employer. So it may well be that the insured themselves will have their own view which they can share with you so that you can understand the depth of any suggested injury.
Emma:
I just want to pick up on that issue again with you, Matt, because I think it's a really important point. We will often be presented with evidence from the claimant and their family as to the ongoing difficulties that the claimant is experiencing.
But, of course, the claimant is often back at work and we often find that the largest head of loss in these claims is future loss of earnings.
So getting that vital information from the claimant's employer and their colleagues as to what adaptations, if any, have been brought in since the accident is really important and it can provide some really helpful evidence for the court on any ongoing difficulties the claimant may be experiencing or not as the case may be.
Can I move on now to looking at scanning? This is something we touched on earlier, but we've seen an increase in the use of DTI scanners in PI claims, to prove a TBI where there's nothing showing on a traditional MRI scan.
Could you talk us through, Matt, the difference between an MRI and a DTI scanner and why these DTI scanners are now being used in PI claims?
Matthew:
Certainly. I'm not a neuroradiologist, but my understanding from experience of these cases is that a DTI scan or diffuse tensor imaging scan is a specialized form of an MRI scan that maps the diffusion of water molecules in white matter tracts. Diffuse axonal injury or DAI from the TBI disrupts the white matter microstructures, and the DTI might detect these microscopic changes where conventional MRI is normal.
And the reason why DTI scans are used, especially in subtle TBI cases, is because often the claimant has a normal CT or MRI scan either initially or on subsequent recommended commissioning.
Emma:
So, Matt, why are these DTI scanner results so controversial in PI claims?
Matthew:
This comes with another health warning that I'm not a neuroradiologist, and the science is moving quickly. But my understanding is, firstly, it's a question of litigation dynamics. I think sometimes the psychology of the litigation is relevant here. I feel insurers have the perception that DTI scans are introduced to bolster what might otherwise be, weak or challenged subtle TBI claims.
Secondly, there's a big issue with DTI scans, which is the difference between group versus individual validity. DTI scans are validated, in research cohorts, which is the difference between TBI patients and healthy cohorts.There is significant individual variability in reporting and interpreting these scans.
Thirdly, the lack of standardization. There is differences among the different types of scanners used, how they are set up, and the protocol that is followed.
Fourthly, nonspecific findings that can be seen on the DTI scans, which may be attributable to normal aging and so may not be viewed as a normal as an abnormality. They might be caused by psychiatric disorders, sleep deprivation, substance misuse. Also, there's the issue of dating the damage and whether or not there are previous injuries which the individual's been subjected to.
My sense is DTI scans are still more experimental and not routinely used in clinical treatment. But don't forget, this is potentially a gamble for the claimant as well as many is the time that nothing comes back on the scan. So the decision to commission a DTI scan is not without risk. It's probably also worth mentioning there are a couple of other types of scans to be aware of. So there is a T2 MRI scan where the water appears bright. In at one scan, the water appears dark. This is good for identifying swelling and scarring. There's an MRI FLAIR scan, FLAIR standing for fluid attenuated inversion recovery. And this is a special MRI sequence which picks up contusions, swelling, or subtle shearing.
And lastly, we're seeing a rise in MEG scans, which is using magnetic fields from brain activity. So, this is not an MRI scan. It's a different functional imaging technique. It's non-standard for TBI injury analysis but is used for epilepsy surgery planning.
Emma:
Thanks, Matt. I've recently myself spoken to a couple of neuroradiologists on the issue of DTI scanning, and I've prepared an article for Weightmans, last month on the issue.
From my perspective, I can see why these scans are really difficult for insurers.
The issue of scanning has been really controversial, particularly the introduction of these DTI scans as you've explained, Matt. On a CT or MRI scan, my brain would look the same if I was scanned at three different hospitals. But on a DTI scan my brain would look very different on three different DTI scanners.
And we know that everyone's brain will look different on a DTI scan depending on whether they're male, female, their age, their medical history and who is to say that any changes on a scan are accident related.
I think from the perspective of insurers, we need to be challenging these DTI scans. We need to be challenging the use of the scans in PI litigation and the use of neuroradiologists to introduce this evidence and I think it's really important for our clients to understand the real limitations of these scans and to challenge them at an early stage.
Well thank you, Matt. I think that was really helpful. We're going to pause there and pick up with you again in a later podcast where we will look at the issues of medical experts, the use of early offers, how to challenge subtle brain injury claims with the use of intel and surveillance, and some key takeaways.
Thank you everyone for listening.
This was a podcast from the Weightmans Brain Injury technical unit. If you require any other advice about brain injury claims, I can refer you to the Weightmans website and to the work done by the Weightmans Brain Injury Technical Unit.
