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New Military guidelines help show seriousness of “mild” TBI

November 16, 2017 by Steven M. Gursten

Language in the 2011 revised criteria for awarding the Purple Heart Medal will help TBI car accident victims and personal injury attorneys to show real impact of brain injury

Mild TBI and the U.S. Army

As I write this, I’m about to do a podcast with the Ohio Association for Justice on helping car accident lawyers to more effectively represent and help people with brain injuries. This is because these brain injury cases with the medical classification of “mild” are always the most difficult for lawyers to prove and win.

Throughout my own career as a car accident lawyer, I’ve learned some of the more effective ways to show that the real-life impact of these brain injury car crash cases can be permanent and devastating. I also regularly teach plaintiff personal injury attorneys from around the nation that these mild TBI cases can be won and that these people deserve our help.

The problem, of course, is that word “mild.” Even though it is a medical classification only and has nothing to do with the severity of injury, far too many claims adjusters and defense lawyers refuse to acknowledge these cases for what they are worth.

While lawyers can try to explain this until they are blue in the face, I’ve found that it is the medical studies and peer-reviewed medical journal articles that are some of the best ways to pierce that stubborn defense wall of willful ignorance. Lawyers who use the best and most current medical resources available to back up a mild TBI car accident claim will always have more success compared to a lawyer who makes statements but does not supply the underlying scientific documentation for why these statements are true.

Among those resources I use in my own cases are military health regulations and guidelines. A very important one was issued in 2011, when the U.S. Army, Navy and Marine Corps revised its position for awarding a Purple Heart. The then-new policy said that soldiers who had concussions and mild TBI not resulting in loss of conscious were eligible to receive the honor, “because of the sheer numbers” of so-called mild TBI being reported in our soldiers, and because the “advancements in medical knowledge” showed just how serious and disabling these injuries truly are for our soldiers.

Why are these military mild TBI guidelines helpful for the car accident lawyer?

This is what the U.S. Military says, not you as a personal injury lawyer. The military has a lot more credibility than lawyers do these days.

This is not you, the lawyer, saying these cases are serious. This is the United States military acknowledging the gravity of mild TBI claims. Unfortunately, after three decades and millions of dollars of insurance company propaganda about personal injury lawyers, the U.S. military is something that more authoritarian-based, conservative jurors will be open to accepting information from, when they will be far more reluctant to hear that exact same information if it is coming from the lawyer alone.

What is the military’s position on mild TBI?

The language found in the Marine Corps’ revised Purple Heart criteria for mild TBI includes:

“While MTBI and concussion are frequently used interchangeably, they are not synonymous. MTBI is the physical injury to the brain from a blow or blast, usually in the form of inflammation of brain tissue. A concussion is the impairment to the brain function (e.g., alteration of consciousness, post-traumatic amnesia, or LOC [loss of consciousness]) resulting from the inflammation injury.

“Because there is still no current method to measure the actual severity of the inflammation of the brain tissue from a concussive blast or blow, military neurologists recommend using the symptoms of impaired brain function caused by the inflammation of the brain tissue as a proxy for estimating the severity of the actual MTBI.

“Since the start of the Global War on Terrorism (GWOT), the Marine Corps previously awarded the [Purple Heart] only for instances of MTBI/concussion where the Marine initially suffered an observed LOC of any duration, considered a Grade III MTBI/concussion under the American Academy of Neurology (AAN) grading scale. Based on the extent of medical research during earlier years of GWOT, the requirement for an observed LOC represented a minimum level of observable initial symptoms of impaired brain function believed to require treatment by a medical officer.

“Recent research into MTBI effects and treatment has led to a more clear understanding of the relationship between the severity of an MTBI and the time required for brain tissue to recover from the inflammation and return to its normal state. The most mild forms of MTBI may result in less severe inflammation lasting only minutes, hours or days with no lasting damage to brain tissue or impaired brain function. However, in the more severe cases of MTBI, the level of inflammation may result in irreversible damage to brain tissue with long term impairments to brain function. Research also indicates that many service members suffering MTBI/concussions without any LOC can have symptoms of impaired brain function that last significantly longer than those resulting from an MTBI/concussion with LOC. For these reasons, military neurologists now recommend duration of brain function impairment as a more accurate measurement of the degree of brain injury vice the current criteria of LOC that relies solely on the severity of initial brain function impairment.”

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