In its January 2018 Legal Bulletin, USI Affinity, which markets Lawyers Professional Liability Insurance to members of the New York State Bar Association, discusses the sharp increase in settlements of cases alleging Traumatic Brain Injury (“TBI”) and Spinal Fusion Surgery due, in large part, to the perceived high liability exposure presented by these types of claims and the difficulties inherent in defending them.
The Challenge of Defending Against a TBI Claim
In an article prepared by Andrew R. Jones and Nir Gadon of Furman Kornfield & Brennan LLP for the Legal Bulletin, the authors discuss how notoriously difficult it can be to defend a TBI claim because the “TBI spectrum can be anywhere from a mild concussion to someone being in a vegetative state.” When a plaintiff lawyer is able to bandy about terms like brain “injury” or brain “damage” in front of a jury, it spells trouble for the defense. The Centers for Disease Control defines a TBI as a disruption in the normal function of the brain caused by a bump, blow or jolt to the head, or penetrating head injury. Everyone is at risk for a TBI, especially children and older adults. But not every claimant with TBI is brain damaged.
The challenge in assessing and valuing a TBI injury is that most claimants do not have regular cognitive or personality examinations to create a baseline against which the alleged effects of an injury can be objectively measured. What then is the plaintiff’s “normal function”? Although defense counsel can retain a qualified expert (often a neuropsychologist, psychologist or neurologist) to perform a comprehensive examination of the claimant, the defense expert has the uphill battle of challenging plaintiff’s treating physician, who has often treated the plaintiff for several years in advance of trial. In contrast, the defense expert saw the plaintiff on a single occasion.
Often, the defense will attempt to buttress the findings of the defense expert by showing the jury surveillance of the plaintiff leading a “normal life”. Surveillance can be particularly effective if the plaintiff has previously testified in her deposition that she is unable to perform specific functions or activities and the surveillance films directly contradict those assertions. However, as Jones and Gadon observe, the well-prepared sympathetic plaintiff can often dispute defense arguments by presenting testimony from family and friends as to how plaintiff used to behave before the accident. The candid testimony of these witnesses will likely outweigh the defendant’s neuropsychiatrist’s opinons in most instances.
The Challenge of Defending Against a Spinal Surgery Claim
Another category of potential high-value injury is the spinal surgery claim. Like a TBI, a spinal surgery or spinal surgery claim is what plaintiff lawyers cynically refer to as a “good injury.” Although a “good injury” often spells disaster for the claimant who is unfortunate enough to have one, a “good injury” can be extremely lucrative for plaintiff’s trial counsel.
Spinal surgery has become more common and less dangerous over time. Many spinal surgical procedures involve subcutaneous incisions and may take place in outpatient settings. Arthroscopic surgeries have become so commonplace that the decision whether to under go an arthroscopic procedure no longer involves weighing potential life-changing considerations as may have been the case a generation ago. Nevertheless, jurors can be unduly sympathetic to a claimant who has undergone back surgery because of the popular belief that back surgery carries a risk of paralysis.
Defending against a case involving any “good injury” requires extra preparation by defense counsel. When the label ascribed to an injury is freighted with a sense of dread, such as TBI or spinal injury, extra care must be given at trial to the balanced presentation of the medical evidence.