McLeish Orlando: Prosecuting mTBI Claims With No Imaging Evidence

• Mild traumatic brain injuries (mTBIs) are often perceived as minor but can lead to significant, long-term impairment despite their "mild" classification.
• Unlike more severe brain injuries, mTBIs typically show no objective evidence on diagnostic imaging like X-rays, CTs, or MRIs.
• Successful litigation of mTBI claims without imaging requires a strategic focus on client credibility, contemporaneous records, and third-party evidence.
• Lawyers must anticipate defense challenges regarding recovery timelines or pre-existing conditions, often relying on competing expert testimony.
• A significant minority of mTBI sufferers experience lasting sequelae, even if most statistically recover within 12 weeks.

Successful litigation of mTBI claims without objective imaging evidence demands a disciplined and strategic approach, particularly given the common perception that concussions are minor injuries.

Concussions, often dismissed as minor incidents like "getting your bell rung" in sports, are medically classified as mild traumatic brain injuries (mTBIs). This classification, however, can be misleading, as the term "mild" does not always reflect the profound and lasting consequences individuals may endure. Dale Orlando, a principal partner at McLeish Orlando LLP, highlights a prevalent misconception among jurors and insurance representatives who frequently perceive concussions as insignificant injuries. While most individuals statistically recover from mTBIs and become symptom-free within 12 weeks, a significant minority experiences persistent sequelae and long-term impairment that extends far beyond a slight inconvenience.

A critical challenge in prosecuting mTBI claims, particularly in Canada, stems from the "invisible" nature of these injuries. Unlike moderate or severe brain injuries, which might manifest as a collection of blood visible on an MRI, mTBIs typically present no objective evidence on standard diagnostic imaging such as X-rays, CT scans, or MRIs. This lack of visible proof can complicate legal proceedings, especially when individuals, immediately following an accident, might have driven themselves home or delayed seeking medical attention until the following day.

The underlying pathology of severe mTBI often involves axonal shear, a condition where the delicate axons of nerve cells are severed. Current imaging technologies lack the sensitivity to visualize this microscopic damage. Consequently, a person can suffer a profoundly significant injury, leading to substantial long-term effects, without any corresponding findings on diagnostic scans. This absence of objective imaging evidence necessitates a fundamental shift in legal strategy for attorneys representing those with concussion claims without objective evidence.

Successful litigation of mTBI claims without objective imaging evidence demands a disciplined and strategic approach, particularly given the common perception that concussions are minor injuries. The initial and paramount step for firms like McLeish Orlando is a thorough assessment of client credibility. A claimant's pre-injury life—characterized by an enjoyable profession, active social engagement, or participation in athletic and outdoor pursuits—can significantly bolster the credibility of their claim. As Dale Orlando observes, it is improbable that individuals would willingly disrupt such fulfilling lives merely for financial gain through a lawsuit.

Beyond client demeanor, lawyers meticulously seek out "indicia of severity" from the incident itself. This includes examining details such as the speed or impact of the collision, the extent of property damage, and any visible physical trauma sustained at the scene. Contemporaneous records are also crucial; documentation of the individual's condition, such as agitation or complaints of serious pain, recorded by ambulance attendants or emergency room staff, provides vital early evidence.

Further substantiating the claim involves leveraging expert testimony and third-party accounts. Neuropsychologists play a key role by identifying subtle cognitive deficits that might not be apparent to the untrained eye. Additionally, lay witnesses—including friends, neighbors, and coworkers—can offer compelling testimony regarding observable changes in the claimant's behavior, personality, or capabilities before and after the injury. These external perspectives are invaluable, as Orlando emphasizes, because "third-party evidence lends credibility to the claim, and that’s what these are: credibility cases."

Litigation involving prosecuting mTBI claims no imaging almost invariably culminates in a battle of competing expert testimony. Defense strategies frequently challenge the severity or duration of the injury, often suggesting that claimants should have recovered within a standard timeframe or that any persistent symptoms stem from pre-existing conditions or embellishment. This dynamic was vividly illustrated in a case handled by Orlando, involving a client he referred to as Mr. G.

In Mr. G's trial, the plaintiff-side neurologist provided a diagnosis of mild traumatic brain injury accompanied by significant post-concussion syndrome. Conversely, the defense expert contended that Mr. G should have achieved full recovery within three months. The defense position further implied that any continued impairment must be attributable to an undisclosed pre-existing condition or that the plaintiff was exaggerating his symptoms.

However, the efficacy of rigorous cross-examination in expert testimony mTBI cases proved critical. During cross-examination, the defense expert was compelled to acknowledge that a specific subset of mTBI patients does not, in fact, recover within the typical three-month period. This concession underscores the complexity of concussion claims without objective evidence and highlights the importance of skilled legal advocacy in challenging generalized assumptions about recovery timelines.

Lawyers handling mild traumatic brain injury (mTBI) claims in Canada, particularly where diagnostic imaging shows no objective evidence, must employ a disciplined strategy focusing on client credibility, contemporaneous records, and third-party/neuropsychological evidence to establish the injury and its long-term impact, anticipating defence challenges regarding recovery timelines or pre-existing conditions.

Source: Original reporting via legal industry insights.