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Key Considerations in Litigating Brain Injury Claims
Updated as of June 5, 2023. Originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.
With increasing awareness about the prevalence of concussions and potentially long-lasting sequelae caused by even mild traumatic brain injuries (mTBI), more and more personal injury and disability claims involve traumatic brain injuries.
In both types of cases, defendants are entitled to review medical and other relevant documentation pertaining to the plaintiff’s injury or condition. Documentation of the first medical attention the person sought after an accident will be important in determining the seriousness of the injury. In the context of claims arising from traumatic brain injuries, some injuries are more obviously serious than others. Sometimes people are found by paramedics unconscious or with obvious head trauma. But sometimes brain injuries are not so obvious and symptoms do not start right away. Injured clients should be advised to seek treatment as soon as possible following an accident, especially if their symptoms are worsening. It is important for clients to describe their symptoms and a timeline of when they occurred to treatment providers as consistently and accurately as possible.
Typically personal injury and disability claims can take years to prosecute, and the client’s symptoms may worsen over time, but it is important to remind clients not to embellish the symptoms they initially described when speaking to their own treatment providers or when being examined by adjusters, defence lawyers and medical experts.
For example, if a client did not report a loss of consciousness after driving themselves to the emergency room following a car accident, then, two weeks later, report to their family doctor that they lost consciousness for 10 minutes immediately following the accident, it would be hard to believe that the second story is true. While memory issues are a common symptom of a brain injury, inconsistencies and exaggeration in reports can call a person’s credibility into question. Clients should be prepared to answer questions on discovery or at trial about any inconsistencies in their reports to treatment providers and/or medical assessors.
It is standard practice for defence counsel to request medical documentation predating the injury or onset of the condition in order to see if the person had any pre-existing complaints or conditions. This is relevant to determining the cause of the injury, condition or disability. For example, in the context of pursuing a claim for a traumatic brain injury, a history of drug or alcohol abuse may be used by defence counsel to account for some symptoms alleged to be caused by a brain injury.
Generally experienced plaintiff and defence counsel will easily come to a consensus on what time period is relevant in terms of producing medical records. In claims for benefits, it is essential that plaintiff’s counsel review the policy in order to determine the relevant time period with respect to considering pre-existing conditions.
Defence counsel are also entitled to continue receiving updated medical documentation until the claim is resolved, in order to be apprised of the status of the injured person’s recovery or any other injuries or health conditions that may arise which would affect the person’s life and abilities. Clients should be advised that their medical records will be made available to the defence and so it is important that they specifically describe their symptoms to their health-care providers and not exaggerate them.
Clients should also be advised that they may be subject to video surveillance as well as a review of social media accounts and posts, which can be valuable to the defence if it shows that the injured person is capable of more than they claim, or is not experiencing the symptoms and limitations they have reported in the case.
Defendants also have the right (though limited) to have the injured person examined by independent medical assessor(s) of their choosing. The assessor will typically review all the medical and other relevant documentation produced in the case (which may include surveillance), examine the person and then prepare a report.
Depending on the nature of the condition and the assessor’s area of expertise, the injured plaintiff will be required to perform tests during the examination. The purpose of these tests is not only to determine the person’s diagnosis, the severity of their symptoms, any limitations and restrictions they may have and any accommodations they may need as a result of the injury/condition but, importantly in the context of litigation, to assess the validity of the claimant’s efforts.
As such, clients should be advised to complete all the tests to the best of their ability. Otherwise, if one or more assessor concludes that the claimant’s efforts were not valid, it could appear that they are trying to exaggerate the extent of their injuries, which would obviously be damaging to their case.
This article was written by Personal Injury Lawyer, Sarah Kirshin-Neilans and originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc. For additional information, please do not hesitate to contact sarah.kirshin-neilans@mckenzielake.com.
If you require assistance with any legal matter, speak to a lawyer at McKenzie Lake Lawyers LLP by calling (519) 672-5666.
