Scarlett Law Group
Traumatic Brain Injury Attorneys - TBI

The Scarlett Law Group are National Trial Lawyers based in San Francisco, California with outstanding results in cases involving automobile accidents, airplane crashes, traumatic brain injury, head injury, personal injury, catastrophic personal injuries, mass torts, medical malpractice , professional negligence, class actions, civil rights, environmental disasters and wrongful death.

Organic Brain Injury and/or Post-Traumatic Stress Disorder

Emotional distress following a traumatic brain injury can be both real and debilitating. Often times, severe emotional distress will mimic many of the characteristics of organic brain dysfunction. It is the treatment that differs in each case, however.

In the litigation setting, it is common for insurance companies, and their lawyers, to contend that the dysfunction and deficits experienced by the victim did not result from any trauma sustained, but rather from pre-existing emotional difficulties. So standard is this defense that it is encountered in virtually all cases of "mild" traumatic brain injury. Therefore, for purposes of treatment, and in order to prevail over unmeritorious defenses, it is important to understand the distinction between an organic brain injury and a debilitating emotional injury.

(a) Post-Traumatic Stress Syndrome. Perhaps the most common emotional injury following trauma is that of post-traumatic stress disorder (PTSD). The most comprehensive definitions of PTSD can be found in the Diagnostic and Statistical Manual – IV (DSM-IV). Therein, PTSD is defined as follows:

"The essential feature of post-traumatic distress disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one´s physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate. The person´s response to the event must involve intense fear, helplessness, or horror (or in children, the response must involve disorganized or agitated behavior). The characteristic symptoms resulting from the exposure to the extreme trauma include persistent re-experiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, and persistent symptoms of increased arousal. The full symptom picture must be present for more than one month, and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning."

Onset and duration of post-traumatic stress disorder have been classified into three general areas:
(1) Acute – when the duration of symptoms is less than three months;
(2) Chronic – when the symptoms last three months or longer; and
(3) With Delayed Onset – where at least six months have past between the traumatic event and the onset of symptoms.

The traumatic events found sufficient to give rise to PTSD are not insignificant. These events include, but are not limited to, military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, and severe automobile accidents or other life threatening events.

Victims of PTSD often re-experience the traumatic event in various ways. Many times, the victim has recurrent and intrusive recollections of the event or recurrent distressing dreams during which the event is replayed. In certain rare instances, victims actually experience dissociative states that last from a few seconds to several hours, or even days, during which components of the event are relived and the person behaves as though experiencing the event at the moment.

Avoidance is common for victims with PTSD. Victims tend to avoid anything associated with the trauma, making a conscious effort to avoid thinking about, experiencing feelings related to, or even talking about the traumatic event. Amnesia may even develop for some or all aspects of the trauma. Victims of PTSD often times become "numb" experiencing "emotional anesthesia" identified by decreased responsiveness to the external world.

Since the development of PTSD can be influenced by a victim´s previous history, such as childhood upbringing, personality, pre-existing mental problems, etc., it is common for insurance companies and their lawyers to methodically search for pre-existing stressors, rather than the trauma itself, which could give rise to the claim. However, the severity, duration, and proximity of a victim´s exposure to the traumatic event tend to be the most important factors affecting the likelihood of developing this disorder. Accordingly, competent neuropsychologists must spend considerable time analyzing all aspects of a victim´s experience before diagnosis.

Clearly, posttraumatic stress disorder (PTSD) is an anxiety reaction to a traumatic event. It has become known as the "signature injury" of the Vietnam War. It continues to be an injury often sustained by our soldiers in the Gulf and Iraqi conflicts. The existence of PTSD in individual sustaining mild traumatic brain injury has been called into question. Where an individual sustains a loss of consciousness or where the victim has posttraumatic amnesia for events occurring, or where the victim and has antegrade or retrograde amnesia involving the events occurring, one could question how anxiety could be experienced from the event itself. In other words, there must be a memory of the traumatic event. It accordingly follows that patients who cannot remember the trauma are less likely to develop PTSD.

However, since many individual sustaining mild TBI do have some recall of the traumatic event or of the circumstances surrounding the event, PTSD and mild TBI due coexist. TBI patients who have intrusive memories of the traumatic event, and who experienced fear and helplessness in avoidance of the event, are likely to develop PTSD.

Diagnoses of both PTSD and TBI in patients may be extremely difficult to make. Many of the symptoms overlap and are otherwise identical. Noise sensitivity, insomnia, memory loss, quickness to fatigue, attention deficits, disassociation, quickness to anger, dizziness, headaches, concentration deficits, and depression are all earmarks of both PTSD and TBI.

In a vicious circle of compounding symptomology, PTSD has been found to exacerbate the cognitive deficits experienced in mild TBI.

(b) Organic Brain Injury. The Diagnostic and Statistical Manual – IV (DSM IV) describes underlying organic injury as "dementia" due to head trauma. DSM IV defines dementia due to head trauma as follows:

"Dementia Due to Head Trauma: The essential feature of Dementia Due to Head Trauma is the presence of a dementia that is judged to be the direct pathopsysiological consequence of head trauma. The degree and type of cognitive impairments or behavioral disturbances depend upon the location and the extent of the brain injury. Post-traumatic amnesia is frequently present, along with persisting memory impairment. A variety of other behavioral symptoms may be evident, with or without the presence of motor or sensory deficits. These symptoms include aphasia, attentional problems, irritability, anxiety, depression or affective lability, apathy, increased aggression, or other changes in personality * * *.”

Likewise, The Diagnostic and Statistical Manual – IV (DSM IV) likewise describes an organic injury as "Cognitive Disorder Not Otherwise Specified" as follows:

"This category is for disorders that are characterized by cognitive dysfunction presumed to be due to the direct physiological effects of a general medical condition that do not meet criteria for any of the specified delirium´s, dementias, or amnestic disorders listed in this section and that are not better classified as Delirium Not Otherwise Specified, Dementia Not Otherwise Specified, or Amnestic Disorder Not Otherwise Specified. For cognitive dysfunction due to a specific or unknown substance, the specific Substance-Related Disorder Not Otherwise Specified category should be used. ”

Examples include

• Mild neurocognitive disorder: impairment in cognitive functioning as evidenced by neuropsychological testing or quantified clinical assessment, accompanied by objective evidence of a systemic general medical condition or central nervous system dysfunction (citations omitted)
• Postconcussional disorder: following a head trauma, impairment in memory or attention with associated symptoms (citations omitted).

In distinguishing PTSD from organic brain dysfunction, the neuropsychological assessment becomes key. Through neuropsychological assessment cognitive abilities are typically evaluated through a variety of testing. Since the criteria for diagnosis of dementia requires impairment in "occupational" or "social functioning", and since there must be a "decline from a previously higher level of functioning", neuropsychological assessment greatly aids in the diagnostic process.

Generally, the cause of PTSD is thought to be functional or psychologically based. In contrast, the cause for organic brain injury involves an actual change in the brain tissue itself.

Treatment modalities differ markedly between the two. PTSD is commonly treated through psychotherapy or through the use of medications to control anxiety and stress. Depending upon the pre-existing characteristics of the individual, treatment for PTSD can be prolonged and the progression gradual.

In contrast, maximum recovery from organically based brain injury, at least in terms of thinking skills, typically occurs soon after the event in question, with gradual recovery continuing throughout the first year to two years post-injury. Although technology changes with each day, treating cognitive problems due to brain tissue changes with medications has not proved highly fruitful thus far.

Perhaps the easiest manner of determining whether a particular victim is suffering from PTSD – related symptoms only, versus organically based brain impairments involves analyzing the overall pattern of neuropsychological assessment results. For example, if the victim demonstrates problems with motor or sensory abilities isolated on one side of the body (or other abilities governed by one hemisphere of the brain), such injuries are more likely to be the result of actual organic brain damage than due to interference in efficiency of thinking due to PTSD or other emotional distress.

The problem is often times not nearly so clear. Making matters worse, a victim may be experiencing both PTSD and organic brain injury. In these cases, a synergistic result can occur heightening dysfunction both in everyday life and on formal testing.

What must be recognized is that deficits can result from either organic brain injury or post-traumatic stress syndrome. Neuropsychological assessment can do much to identify the etiology of the deficits thereby allowing prompt treatment to ensue.

It should also be recognized that many mild TBI patients experience emotional distress, fatigue, depression and anxiety. After all, as the individual sustaining the traumatic brain injury becomes a more self-aware of the limitations imposed by the injury, why would the individual not become depressed or experience emotional depress and anxiety? Fatigue in and of itself can cause of emotional alterations. Add processing speed slowness together with fatigue and a recipe for a emotional distress exists. Processing speed difficulties required deliberate effort of the victim to accomplish what was premorbidly accomplished automatically. The additional concentration required to accomplish even the simplest of tasks overwhelms and compounds to cause fatigue in the individual sustaining mild TBI. Irritability sets in.

It should also be recognized that the plethora of symptomology experienced by individual´s sustaining mild TBI can likewise cause the onset of depression and anxiety. Awareness of changes in cognitive efficiency clearly result in anxiety to the patient. Depression in virtually all minor TBI cases occurs within six months of the trauma, but may be delayed as self recognition of the injury develops. Depression severity results in a functional disability and can contribute to cognitive impairments. The simple fact that one has sustained and organic brain injury does not preclude the development of emotional disorders. It is not one or the other. In virtually all cases, it is both. Unfortunately, a synergy of response to the awareness of organic brain injury can heighten anxiety, depression, a emotional distress and fatigue. Likewise, the symptoms of depression, anxiety, and emotional distress can exacerbate the cognitive deficits resulting from the organic brain injury. This circle of incapacitation renders the victim helpless.

In the litigation arena, it is likewise often forgotten that we injure the brains we already have. Any and all "personality flaws" pre-existing the trauma will likely be amplified following the traumatic brain injury. These "flaws" certainly will not improve with the traumatic brain injury. It has unfortunately become the defense of choice for the defense bar to argue that the cognitive deficits displayed by the plaintiff resulted not from the trauma but from pre-existing emotional disorders. It is therefore absolutely necessary that premorbid levels of function be determined and verified with all corroboration possible.