Dealing With the No Loss of Consciousness Defense

I. Introduction

Anyone who has represented an individual diagnosed with mild traumatic brain injury (MTBI) has heard the argument at some time. I heard it just this week at a court ordered mediation in a roll over collision case.

No Loss of Consciousness TBI

Initial InvestigationAppeal of The No LOC DefenseRefuting No Loss Of Consciousness ArgumentWhat Does The Future Hold?

I began by presenting a summary of my client’s injuries at the initial joint session, describing how Jack had sustained a brain injury, the treatment he had received and the terrible toll that a brain injury had taken on him and his family over the previous three years. I demanded the policy limits and sat down.

The defense attorney stood and began his presentation. “We do not believe that there is any evidence of a brain injury in this case. The initial ambulance report states ‘no LOC.’ The emergency room records show that his CT scan was normal. There is no way this man could have a brain injury since there is no evidence he ever lost consciousness. We do not think this case has significant value.”

Needless to say, the case did not settle. At trial we knew we would hear a constant defense theme. “Jack could not have a brain injury because he never lost consciousness. His x-rays, CT scan and MRI were normal. There is no objective sign of injury to his brain.”

This paper will discuss some of the strategies for overcoming the no loss of consciousness defense in a MTBI case.

II. Initial Investigation

The first strategy to over come the no LOC defense is to see if, in fact, a loss of consciousness did occur immediately following the injury and whether it can be proven. Thorough investigation of everything that occurred at the accident scene is essential. Do not simply rely on statements contained in the client’s medical records. The defendant will try to emphasize ER records and ambulance reports claiming they are the most accurate indicators of LOC because they were made immediately following the events. In fact, ER records and even ambulance reports are notoriously unreliable with regard to loss of consciousness. Both are typically hastily prepared and often based solely on patient self report. Whether the patient had a brief LOC may not seem important at the time, given other more life threatening injuries. The patient is normally a poor historian, particularly if they are stressed, excited or confused following the event. It is not unusual to see conflicting statements about loss of consciousness in the same records.

An individual who has recently sustained a MTBI may be unable to accurately answer when asked , “Did you lose consciousness?” Many times the TBI patient will respond with “I don’t know” “I’m not sure” or “I don’t think so,” which will then be noted in the EMS records as a negative report of loss of consciousness (“no LOC” or possibly “?LOC”). The Emergency Department records frequently repeat information regarding loss of consciousness from EMS records, and hence contain erroneous reports of “no LOC.”

The lag time between when the accident occurs and when EMS personnel arrive on the scene may result in an inaccurate report about loss of consciousness. The injured person may regain consciousness prior to the arrival of EMS personnel or other bystanders. Rather than ask the patient or even the witnesses about LOC, the first responder simply notes “A, Ox3 upon arrival.”

Prompt and thorough investigation is essential where traumatic brain injury is suspected. The attorney must identify everyone present at the accident scene immediately following the event. These persons must be interviewed to determine whether they noted any change in the client’s level of consciousness or mental status in the first few minutes following injury. Often bystanders can establish periods of unconsciousness missed by medical personnel. Do not overlook first responders such as volunteer firemen or rescue squads who often arrive at the scene well before EMS personnel.

A recent case illustrates the danger in relying solely on medical records with regard to initial LOC. Don was the driver of a minivan struck by a car that ran a light. Impact speed was approximately 45 mph. Don’s ambulance records stated, “patient alert, oriented x3 upon arrival.” ER triage notes stated “?LOC.”

A witness by the name of Bill Smith was listed on the accident report. We were fortunate in that when Mr. Smith was interviewed we learned that he had a nursing degree from a well respected university and had served as a medic in the US Army. His statement clearly established that Don was unconscious at the time he first looked in the minivan after the wreck. He established that Don had been unconscious for almost 10 minutes before the ambulance arrived. I am sure that we would have faced a no LOC defense at some time in the case had we not taken the witnesses statement and eliminated that excuse early in the case.

All is not lost if the initial investigation fails to demonstrate a LOC. There is no doubt that current medical literature establishes that a loss of consciousness is not necessary for a person to sustain a traumatic brain injury. For example, the Mild Traumatic Brain Injury Committee of the Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine adopted the following definition of mild brain injury (J Head Trauma Rehabil 8:86-7, 1993):

A patient with mild traumatic brain injury is a person who has traumatically induced physiological disruption of brain function, as manifested by at least one of the following:

1. Any period of loss of consciousness
2. Any loss of memory for events immediately before or after the accident
3. Any alteration in mental state the time of the accident (e.g., feeling dazed, disoriented, or confused)
4. Focal neurologic deficit(s) that may or may not be transient
5. But where the severity of the injury does not exceed the following:
   1. loss of consciousness of approximately 35 minutes or less;
   2. after 35 minutes, an initial Glascow Coma Scale (GCS) of 13-15; and
   3. posttraumatic amnesia (PTA) not greater than 24 hours.

Make sure to address the issue of confusion or disorientation when interviewing those present at the scene of the incident. More often than not, brief periods of confusion, disorientation or feeling dazed without loss of consciousness will not be reflected in the medical record. Use the testimony of the lay witnesses who were first on the scene to establish that the client meets the definition of MTBI.

III. Why Is The No LOC Defense So Appealing To Jurors?

There is no doubt that the claim that TBI cannot occur without a LOC can be an effective and powerful defense at trial. Usually, it will be used in conjunction with an attempt to show the Plaintiff is malingering to either defeat the claim entirely or to significantly reduce the damages awarded. What makes this defense argument so effective? Jurors accept the claim that a brain injury cannot occur without loss of consciousness because it appeals to several well known juror biases.

First, it is generally consistent with the jurors pre-trail beliefs or schemas as to what a brain injury is. We all have certain schemas we use to process information quickly and to make sense of the world around us. For instance, we have all adapted certain schemas about what a dog is. For example, if a room full of people were asked to imagine a dog each person’s imaginary dog would be different but they would all share common characteristics such as four legs, a tail etc. If we were to ask that same group of people to imagine the scene of an accident where someone has sustained a brain injury that will have life-long effects, the details might be different but I strongly suspect that the vast majority would imagine an unconscious person as part of that scene.

Research has also shown that once a juror forms a belief those beliefs tend to persevere, even in the face of evidence that contradicts those beliefs. The longer a belief is held, the more it tends to persevere. This means that we are not starting on a level playing field when trying to convince the average juror that TBI can and does occur in individuals who did not have a LOC at the time of injury. Jury research also shows that jurors tend to adopt evidence that agrees with their previously adopted beliefs (ie defense claim that there must be LOC) and to strictly scrutinize or disregard evidence altogether which contradicts their beliefs (Plaintiff’s claim LOC not necessary).

One other juror bias makes the no LOC defense appealing to many jurors: defensive attribution. Humans crave certainty and order in life. We want to feel secure and to feel that our life sits on a solid foundation. The notion that a person can suffer a life altering injury in an accident that does not appear life threatening and where the injured individual does not even lose consciousness is scary. It shakes the very foundation of our lives. Because it is so scary and there is so little that can be done to prevent it from occurring jurors do not want to believe it. They do not want to believe it because they do not want to think it could happen to them or someone they care about. What is the end result? The more seriously injured the Plaintiff, the more anxious jurors become about suffering a similar fate themselves, with the result that they try harder to find reasons to blame the Plaintiff (“they must be faking or exaggerating”) for the outcome. This naturally leads to a tendency not to believe the testimony of the Plaintiff’s experts and physicians.

IV. Refuting The No LOC Argument At Trial

How do we counter these juror biases? First, it is important to address the no LOC defense right at the beginning of trial. That way you can help those jurors who have not yet formed beliefs about TBI and LOC form initial beliefs favorable to the Plaintiff’s case. Remember, initial beliefs tend to persevere. If you are in a jurisdiction that permits jury voir dire you should begin educating jurors about MTBI without LOC during voir dire. Then ask questions designed to find out what the jurors’ schema of a brain injured individual is. Some examples:

1. Is there anyone on the panel who has any preconceived ideas about how a person with a brain injury should look?
2. Do any of you have any preconceived ideas or beliefs as to how a person with a brain injury should act?
3. Have any of you heard of “shaken baby syndrome” a condition where a child’s brain may be seriously injured by violent shaking even without a blow to the head?
4. Do any of you have such firm beliefs about brain injury that even if the evidence in this case showed that a brain injury can occur without a significant blow to the head you could not accept that fact?
5. Is there anyone on the panel who has preconceived ideas or beliefs that would prevent them from fairly considering whether Plaintiff suffered brain injury, whether or not she actually lost consciousness, if such a finding was supported by the evidence?
6. Is there anyone on the panel familiar with the term “diffuse axonal injury,- post concussion syndrome, post-traumatic stress disorder?
7. Is there anyone on the panel with a preconceived idea of how a person with a “diffuse axonal injury,” post-concussion syndrome, or post-traumatic stress disorder should look or act?
8. Do any of you have any preconceived ideas or beliefs regarding the abilities of a brain injured person? Do you think, for example, a person who still retains the ability to drive and care for themselves could not have a brain injury?

You must address the issue early and repeat often during trial. Have every qualified physician who testifies on behalf of the plaintiff explain why a brain injury may occur even if the plaintiff did not lose consciousness. Make sure the jury hears it from the ER physician, the treating neurologist, the neuropsychologist and even the family doctor. Establish that their opinions are not controversial and that TBI in the absence of LOC has been a widely accepted concept within the medical community for a number of years.

Carefully scrutinize the ambulance report, ER records and other acute care records for any of the physical signs of TBI such as nausea, vomiting, blurred vision, dizziness, photophobia, phonophobia, headache or seizures. Prepare exhibits that compare the physical symptoms of TBI with those experienced by the client and documented in the medical chart. Consider the use of lay witnesses to prove the presence of symptoms not documented by the treating physicians. Make sure the jury is aware of any physical evidence which would indicate that there was a blow to the head such as lacerations or bruising about the face.

Support your expert’s opinions with the liberal use of medical literature. There is a wealth of medical literature that establishes that MTBI may occur even where no LOC occurs at the time of injury. For example, The Centers for Disease Control recently published a brochure (1/03) titled “Heads Up, Facts for Physicians About Mild Traumatic Brain Injury” that contains a helpful definition of MTBI:

Experts from The Centers for Disease Control and Prevention’s MTBI Working Group define a case of MTBI as the occurrence of injury to the head arising from blunt trauma or acceleration or deceleration forces with one or more of the following conditions attributable to the head injury: Any period of observed or self reported:

• Transient confusion, disorientation, or impaired consciousness;
• Dysfunction of memory around the time of injury; or
• Loss of consciousness lasting less than 35 minutes.

…Concussion may occur without loss of consciousness. Mild concussion may be present even if there is no external sign of trauma to the head.

Here is a quote from another recent article:

Although it is still commonly assumed that LOC is a defining and essential feature of concussion, research and clinical experience in the neurosciences have indicated for more than 35 years that an individual can experience a concussion without LOC. C.M. Fisher noted in 1966 that confusion and amnesia are the hallmarks of concussion. Results from this prospective study on the immediate effects of concussion now demonstrate that significant neurocognitive changes can be detected after injury without LOC, PTA or physical neurological abnormalities. Nearly85% of the injured subjects in this study experienced no LOC, PTA, or change in gross neurological status but exhibited measurable changes in orientation, concentration, and memory function in standardized mental status testing immediately after concussion.

McRae, Kelly et al, Immediate Neurocognitive Effects of Concussion, Neurosurgery, Vol. 50, No. 5 (May 2002).

Many defense experts will now admit that MTBI can occur in the absence of LOC. If they deny that TBI can occur without LOC inquire about the basis for those beliefs. At deposition, have them identify texts or journals that they believe are authoritative. Most of the leading texts or journals will contain helpful information about TBI without LOC.

Make sure to have any defense witnesses define what they mean by “loss of consciousness.”

Consciousness is not an “all or nothing” phenomenon. Instead, there are levels of consciousness. For example, if an accident victim is able to respond to painful stimuli but not verbal stimuli, are they labeled as being unconscious or conscious? The answer is unclear. Definitions of consciousness include vigilance, the ability to react to the environment, and awareness of facts and the content of mental phenomenon. Certain terms have been used to describe degrees of consciousness including “alert wakefulness, lethargy, obtundation, stupor and coma.”…. There are difficulties, therefore, in defining consciousness or loss of consciousness. It is assumed that others use the same definition of LOC, but this may not be the case.Anderson, Stephen D., Postconcussional Disorder and Loss of Consciousness, Bull Am Acad Psychiatry Law, Vol. 24 No. 4 (1996).

V. What Does The Future Hold?

Current research in the neurosciences may produce one of the most effective tools to debunk the myth that brain injury cannot occur without a loss of consciousness at the time of trauma. Researchers have identified a gene (APOE e4) which has been associated with poor outcome following trauma to the brain. A relatively simple genetic test could provide a way to objectively explain the client’s cognitive dysfunction.

A substantial body of clinical literature is developing to support the hypothesis that the APOE genotype influences the outcome of TBI, and that there is a genetic predisposition to the neurological consequences of TBI. In a prospective evaluation of 89 patients sustaining TBI (Teasdale GM, Nicoll JAR, Murray G, et al. Association of Apolipoprotein E Polymorphism with Outcome after Head Injury. Lancet 1997;350:1069-1071), Teasdale and others observed that 17 (57%) of 35 patients with APOE e4 had an unfavorable outcome at 6 months compared with 16 (27%) of 59 patients without APOE e4.

Seliger et al (Seliger G, Lichtman SW, Polsky T, et al. The Effect of Apolipoprotein E on Short-term Recovery from Head Injury. Neurology 1997;48:A213) noted that patients with the APOE e4 allele experienced a poorer outcome than those without the e4 allele. This differential in recovery was noted in the cognitive domain but not in motor function. Friedman et al (Friedman G, Froom P, Sazbon L, et al. Apolipoprotein E e4 Genotype Predicts a Poor Outcome in Survivors of Traumatic Brain Injury. Neurology 1999;52:244-248) also reported a strong association between the APOE e4 allele and a poor clinical outcome.

In a study of boxers with chronic TBI (Jordan, Chronic Traumatic Brain Injury Associated with Boxing, Semin Neurol 20(2):179-185, 2000) Jordan found that 1 of 27 (3%) individuals with the APOE e4 allele had a favorable outcome compared with 13 of 42 (31%) of those without the e4 allele. That study also noted that patients with the APOE e4 allele were five times more likely to experience more than 7 days of unconsciousness.

It is unclear whether this theory has gained sufficient acceptance within the medical community to meet Daubert standards. There is extensive study being conducted about how the presence of the APOE e4 allele may influence Alzheimer’s Disease. If this research can be applied to TBI, genetic testing could finally offer objective evidence to show why a client with the APOE e4 allele has not recovered from a seemingly “minor” brain injury. Given the current volume of literature I think it is likely that testimony about the APOE e4 risk factor would be admissible.

VI. Conclusion

With proper investigation, planning and research the Defendant’s claims that TBI cannot occur in the absence of LOC can be effectively refuted. It is extremely important that the issue be addressed early in trial. Research into the APOE e4 allele may provide one of the most effective means yet to show why certain individuals do not recover from MTBI.