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How can lawyers prove TBI?

November 2, 2017 by Steven M. Gursten

Attorney Steven Gursten is plenary speaker at Ohio Association for Justice seminar on best ways to help the mild TBI victim

Mild TBI victim

This Friday, I’ll be sharing what has worked for me, and what can work for other auto accident and personal injury attorneys, at the Ohio Association for Justice’s 2017 Winter Convention in Cleveland. I’ll be speaking Friday morning on “Mild Traumatic Brain Injury in Motor Vehicle Crash Cases: How to Identify and Prove This to Adjusters and Juries.”

Why is a mild TBI victim’s case so tough for auto accident attorneys?

That one little word, “mild,” has led to countless people being turned away from courtrooms by juries. Even though the word “mild” in mild TBI is simply a medical classification; it is often tough for juries (and claims adjusters) to see past it. Also, as more TBI cases are lost or as mild TBI victims receive meager jury verdicts, it drives down the overall settlement values for TBI cases and for what insurance companies are willing to pay.

How can you fight back?

The most important thing you can do is take these cases to trial. Most of the plaintiff attorneys who are going to trial on these cases do not understand these cases or how to properly explain these cases to juries so they will understand the full impact that a so-called mild TBI has on a car accident victim’s life.

For a personal injury attorney to overcome the typical defense’s arguments in these cases, it also takes medical experts such as neurologists to explain to juries why mild TBI symptoms and problems are sometimes not immediately obvious, but rather can manifest themselves over days, weeks and months. A mild TBI case can also be very expensive for attorneys to bring to court, and they’re more complicated for the average injury lawyer, who must learn the medicine and the science behind TBI, such as how a person can have a serious brain injury with no loss of consciousness or obvious symptoms.

Often these cases are called “invisible injury” cases, because the injury doesn’t always appear on diagnostic imaging; MRI and CT scans are frequently negative, or normal, even in cases of serious and permanent brain injury.

While these experts are explaining the medicine behind TBI, it’s up to the attorney to demonstrate how the injury has affected the client’s life. This means taking a close look at your client and how his or her everyday activities aren’t the same as they used to be before the accident.

Mild TBI is very real and very serious. It is up to the lawyers who take on these cases to learn and understand the symptoms of mild TBI, the medical literature, and the real-life hardships of the people we represent, if only so we can more effectively be their advocates and communicate their injuries to juries and insurance adjusters.

For more information about the OAJ’s 2017 Winter Convention, visit here.

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