Persons surviving mild traumatic brain injuries are often victimized in their legal case because little or no convincing medical documentation of the head injury appears in the medical chart at the onset. Compounding this problem is the fact that all too often, diagnostic testing is negative in traumatic brain injury cases. In many cases, the following medical history is present and leads jurors to be skeptical toward mild traumatic brain injuries:

• No foreign material in brain. • No x-ray evidence of fracture of skull. • Negative MRI/CT scan of brain • No bleeding • No loss of consciousness • No seizures • No coma

• Patient looks good

Because jurors are smarter and more sophisticated than ever before and because they believe what they see before they believe what they hear, the above scenario can present monumental hurdles for brain injured patients and their legal case. What can medical providers do to avoid having their patient’s brain injury believed at trial? The following five tips may help.

1. Conduct your initial interview in a manner which respects your patient’s injury and difficulties so that you can obtain the most accurate and complete history.

a. Provide privacy for the patient. b. Do not look hurried. c. Listen. d. Probe for details. e. Do not cut off conversation. f. Look for signs and symptoms of brain injury

g. Ask about patient changes

If the patient is having trouble giving clear and accurate information, conduct a second interview and have the patient bring a family member or friend to assist in providing background information in addition to changes observed in the patient.

2. Ask for additional information before diagnosing the patient. Police records, EMT records, emergency room records, test results and records of treating physicians all contain information which can be invaluable to assisting the medical practitioner in diagnosing a brain injury. If an attorney is representing your patient, ask the attorney to provide you with all of the records and request that they be sent in a neatly organized tabbed binder. Request any depositions or videotaped testimony from “before and after” witnesses who can provide information about how the patient has changed after the injury.

3. Advise your patients on the importance of completely and accurately disclose all important medical information to you. The medical chart is a legal document and jurors will see it at trial. They often dismiss complaints and disabilities that are not documented.

4. Make recommendations for treatment and/or refer brain injured patients for treatment. However, neuropsychologists and other physicians who make recommendations for treatment must make sure that the patient has the means to follow through with the recommended treatment. For instance, if the patient has no insurance and limited financial ability, recommend treatment at a free clinic or University internship program. Follow-up with the patient to make sure that they are treating. Jurors have difficulty believing that people have brain injuries and yet have failed to obtain treatment.

5. Write detailed and descriptive progress notes that document the patient’s problems and day to day struggles. Often times, these notes provide a history of problems that a brain injured person will often forget years later at the time of trial unless they are reminded. The entire theme of a trial can often be based on one small notation in a chart that conveys a real life struggle of the patient.

Medical practitioners can help brain injured victims receive full and complete compensation for their injuries even where there is no loss of consciousness and many tests are negative. Effective medical chart documentation and treatment is the first step in helping those with brain injuries. The more accurate the corroboration is between the medical chart, the doctors and “before and after” witnesses, the more credible the patient and their case will be at trial. There is nothing so tragic as to have a brain injured person have his or her legal case taken lightly because of inaccurate early reporting and documentation. Hopefully we can all work together to bring about changes.