TRAUMATIC BRAIN INJURY DEFENSE, The Cutting Edge 2018 .
TRAUMATIC BRAIN INJURY DEFENSE,The Cutting Edge 2018 Version DEFENDING TBI CASES -A LIFETIME OF EXPERIENCEJeffrey A. Brown, M.D., Esq., NeuropsychiatryDavid M. Mahalick, Ph.D, ABPN, NeuropsychologyWilliam N. DeVito, Esq., Kowalski & DeVitoCLE Materials - Table of ContentsThese materials may be viewed or downloaded at the “CLE Materials” pageof DANYs website: Course Agenda ------------------------pages 2 - 3Treatise Excerpts: From Litigating Brain Injuries -----------------------------by B. Stern and J. Brownpages 4 - 118 Materials under copyright by West, a Thomson Reuters BusinessReprinted by PermissionNature and Scope of Neuropsychiatric, Behavioral Medicine,and Neurobehavioral Examinations ---------------------------------------------- pages 119 – 125Outline: Understanding Traumatic Brain Injury ------------------------------- pages 126 - 131by David M. Mahalick, Ph.D, ABPNVerdict summaries -------------------- pages 132 - 200Article regarding Football and C.T.E. ---------------------------------------------- pages 201 - 214Article regarding Diffusion Tensor Imaging (DTI) ------------------------------ pages 215 - 226Andrew v. Patterson Motor Freight, Inc. -------------------------------------------- pages 227 - 236Brouard v. Convery -------------------- pages 237 - 239Klipper v. Liberty Helicopters -------- pages 240 - 242Lamasa v. Bachman ------------------- pages 243 - 251Lugo v. New York City Health and Hospitals Corp. ------------------------------- pages 252 - 265Ruppel v. Kucanin --------------------- pages 266 - 280White v. Deere & Company ---------- pages 281 – 285Wilson v. Corestaff Services --------- pages 286 - 289Curriculum Vitae: Jeffrey A. Brown, M.D., Esq. ------------------------------ pages 290 – 333Letter of Professor Louis Raveson re Dr. Brown ------------------------------- pages 334 – 335Press Release re Dr. Brown and Marquis Who’s Who ------------------------ pages 336 – 341Curriculum Vitae: David M. Mahalick, Ph.D, ABPN ------------------------- pages 342 - 356Curriculum Vitae: William N. DeVito, Esq. ------------------------------------ pages 357 - 357
Timed AgendaTBI Defense - The Cutting Edge 2018: Lessons From a Lifetime of Expert ExperienceCo- Presenters: Jeffrey A. Brown, MD, JD, David Mahalick, PhD and William DeVito, Esq.William DeVito, Esq.A.Introduction (5 minutes):1.2.3.4.5.Why talk about brain injury casesIncreasing financial stakes in brain injury claims (dollar values)New cases and sciencePeople Recover - the classic case of Phineas GageThe famous case of HMJeffrey A. Brown, M.D., J.D. – A Lifetime of Expert ExperienceB.Fifty years of lessons from old neuroscience and psychometrics (15 minutes):1.2.3.4.5.6.C.Localization theory and limitationsBrain/body circuitry and the “mind/body” false distinctionsUses and limitations of neuropsychological testsUses and limitations of imaging studiesMalingering versus misperception“Primary” and “Secondary” gainEmerging Frontiers of Neuroscience (15 minutes):1.2.3.4.5.6.7.8.Brain injury biomarkers: uses and limitationsThe critical importance of early intervention and the downside of being “a pennylate and a dollar short”Medication interactions and nonspecific presentationsUses and limitations of diffusion tensor imaging specificallyThe potential return of the QEEGTranscranial magnetic stimulation: the hot new intervention with its uses andlimitationsUses and limitations of functional brain imagingThe neurobiology and neuroradiology of false positive imaging results and theincreasing recognition of “brain damage” associated with attention deficitdisorder and other formerly defined as being pure “psychiatric” syndromesDANY DINNER – October 16, 2018
D.Hard Lessons Learned Being an Expert in Court (15 minutes):1.2.3.4.5.6.7.Bad outcomes by defense counsel and why they happenedBad outcomes by me and why they happenedGood outcomes by defense counsel and why they happenedGood outcomes by me and why they happenedThe best and worst moments being a brain injury expertThe horrific catastrophe resulting from lack of coordination between defensecounsel and those paying plaintiff’s medical and surgical billsThe increasingly indispensable importance of having experts examine plaintiffssimultaneously and speaking with one anotherDavid Mahalick, Ph.DE.The Lifetime View of a Neuropsychologist (30 minutes):1.2.3.4.5.6.7.Types of Brain InjuriesWhat to look for in Medical RecordsIdentifying TBIClinical Testing by a neuro-psychologistFraming the degree of alleged damageCo-occurring psychiatric disordersTreatmentWilliam N. DeVito, Esq.F.Translating Experience with Neuroscience into Winning Legal Strategies (30 minutes):1.2.3.4.4.G.Using discovery to find out what baseline you started with – what brain were youdealing with before the accidentDiscoveryNew CasesOld cases (favorites)Using sensitivity and specificity arguments to win the caseQ&A Discussion (10 minutes): Open Discussion and QuestionsDANY DINNER – October 16, 2018
JEFFREY A. BROWN, M.D.NY License # 125871FL License #ME 921221036 Park Avenue, Suite 1BNew York, NY 10028(212) 570-5039Fax (646) 370-6399REPLY TO: 1000 E. Island Blvd., Unit 2802Aventura, FL 33160-4945(305) 974-0490Fax: (305) 974-0938Email: jbrown@drjeffreyabrown.comNature and Scope of Neuropsychiatric, Behavioral Medicine,and Neurobehavioral ExaminationsWhat follows is a description of the nature, scope and time required forneuropsychiatric/neurobehavioral evaluations.This description is based upon my extensive training in neuropsychiatry (with myconcentrating in behavioral neurology and neuropsychology as well as psychiatry andgeneral medicine even before receiving my M.D. from Stanford and pursuing apsychiatric residency at Yale) and my nearly forty years of clinical practice,experience, teaching medical and neuropsychiatric interviewing and publishing,directing both inpatient and outpatient programs, and having an extensive clinical aswell as consulting practice in the fields of neuropsychiatry, neuropsychology,behavioral medicine, behavioral neurology, and general psychiatry.These examinations typically take up to 16 hours (sometimes even longer) whenpatients have suffered a traumatic brain injury and/or cognitive impairment caused byother conditions and/or chronic pain syndromes and/or emotionally traumaticexperiences and/or on medication(s) prior to/at the time of/or after the traumaticevent that is the subject of litigation since in those situations their responses often areslow and their ability to process and recall information impaired.Note further that these examinations often can take even more than 16 hours in thosesituations when patients have had extensive and/or emotionally traumatic preincident histories (e.g., when physical and/or sexual abuse had been present).Moreover, note that individuals having these types of injuries simply in many casescannot sit through an examination that takes more than four hours at a time. In thosecases, we are happy to accommodate the examinees by breaking up theexamination period into as many parts as necessary to minimize examinee/patientdiscomfort and avoid the problem of tests being invalid because those seen simplysometimes are too uncomfortable to pay sufficient attention to questions to giveaccurate responses.
2Finally, note that in the neurobehavioral sciences “everything counts.” There areabsolutely, positively no areas of inquiry that are “off limits” clinically and/or ethically.Specifically, as Freud indicated that the core of human happiness is the ability to “loveand work,” it is completely not only legitimate but necessary to inquire into all aspectsof both; specifically including a patient’s sexual history and practices, what they mayHave witnessed regarding parents’ and/or siblings’ sexual practices (includingwitnessed physical and sexual abuse), interviewee’s knowledge of vocationalrehabilitation and of the Americans with Disabilities law, and any other areas of inquirythat would lead to a more accurate differential diagnosis.Indeed, clinical – as opposed to legal – investigation and “discovery” regarding reviewof most recent medical literature not only is necessary but imperative, since anyethical clinical expert would be wiling up to and including at the time of trail to updateor even significantly alter ay opinion expressed in a report on the basis of any newfacts provided or most recent literature reviewed.Please also note in this regard that it is extremely important for this examiner to havethe opportunity to personally interview any and all health providers who haverendered treatment to the examinee both before and after the traumatic incident aswell as to personally interview family members and other “collaterals” who haveinformation about the examinee’s neurocognitive, neurobehavioral, ability to functionat work and at home, and emotional states – with specific examples of the above –that manifested themselves before as well as after the traumatic incident.The examination has seven parts, of which only one is the mental status examination:I.History of the Present Illness (2 hours or more especially in patients who havesuffered traumatic brain injury and/or cognitive impairment caused by otherconditions and/or chronic pain syndromes and/or emotionally traumaticexperiences and/or on medication(s) prior to/at the time of/or after thetraumatic event that is the subject of litigation):It is a well-known medical truism that “history is 80% of the diagnosis.”Consequently, it is very important to get the patient’s present recall of theaccident or injury, injuries suffered, treatment received, and treatmentresponses.Please note that “history” includes a complete medical and behavioralmedicine history that goes well beyond the traditional merely “psychiatric”history and includes at least medical, surgical and other conditions that canhave behavioral presentations or consequences, neurological and brain injuryrelated conditions that are treated with medications that have physical/medicalside effects, and the differential diagnosis of conditions that can be bothmedical and/or surgical as well as behavioral in presentation or cause (e.g.,when a patient has both anxiety and broken bones, depression and low thyroid,
3heart arrhythmias and anxiety, cognitive problems as well as paralysis or eyeproblems in strokes, left arm pain in heart attacks, etc., etc.).Since patients do not live life in a vacuum and causal links between theaccident and the current diagnoses important, it also is essential to inquireabout other life events and physical illnesses an examinee may have sufferedbetween the date of the original incident and the present as well as regardingimportant life events prior to the date of injury.It indeed is my experience that plaintiffs in personal injury litigation areparticularly eager to describe in detail their injuries and treatment for same.II.Past Medical History (usually approximately 2 hours):Patients and sometimes even testifying experts do not take careful medicalhistories of a patient’s pre-accident treatments, symptoms, treatment responses– or lack of seeking treatment for symptoms.There are numerous medicalillnesses which directly and significantly impact a patient’s psychiatric andneurocognitive state, ranging from diabetes to lupus to Lyme’s disease to highblood pressure, amongst many others.III.Past Psychiatric History (15 minutes if absent to 3 hours or more if present):It frankly has been the exception rather than the rule that records of accidentcontain data about patients’ pre-accident history not only of psychiatrictreatment but, equally important, psychiatric symptoms that the patient chosenot to have treated.Prior examinations have revealed for example that patients have beenphysically or sexually abused, had significant substance abuse problems, stressesrelated to child custody disputes, family deaths, and other emotional stressorsthat they were not asked about or did not chose to volunteer to otherexaminers. Clearly these would impact upon a patient’s current psychiatricstate – especially if these issues never were addressed in treatment.IV.Family Medical and Psychiatric History (15 minutes if absent to 1 hour or more ifpresent):There are many illness, particularly of the biochemically influenced type, that runin families. Many experts are psychologists who do not ask about/are nottrained about how to ask about these conditions.Examples includeHuntington’s disease, bipolar (manic depressive) illness, and thyroid disease.
4V.Psychosocial History (up to 2 hours, usually more if a patient has had a traumaticbrain injury):School performance, school failure, dropping out of school, criminal activity,work history, and relationship/marital history all need to be inquired about allneed to be inquired about since any of these can result in severe stress, anxiety,depression, and/or cognitive impairment.VI.Mental Status and Screening Neurological and Cardiovascular Examinations(usually takes 1 hour, but can often take more time if patients have suffered atraumatic brain injury and/or cognitive impairment caused by other conditionsand/or chronic pain syndromes and/or emotionally traumatic experiencesand/or on medication(s) prior to/at the time of/or after the traumatic even that isthe subject of the litigation):This is a formal assessment of mood, cognition, including short-term memory andexecutive functioning and intactness with reality. This examination includesstandard questions which a competent neuropsychiatrist is expected to knowhow to ask.Finally, depending on the specific case, certain screening neurological andgeneral medical procedures might be necessary. These have included takingpatient’s blood pressure (in both arms, both sitting and standing), listening to apatient’s heart (sitting and standing) with a stethoscope to assess rate andrhythm abnormalities, testing for balance and coordination, etc.As it is a standard practice in behavioral medicine for a patient to have his or herblood pressure taken and heart listened to as well as to have certain screeningneurological examinations done (including specifically checking for nystagmusand ataxia), those procedures are done as part of the overall mental statusexamination process.VII.Psychological Testing (4-6 hours, often more with traumatic brain injury patients):A.It is my standard practice to administer the Rey 15 Item Inventory and theTOMM as well as the Mini Mental State Examination when aneuropsychologist or neurologist has not administered one or more ofthese tests.Typically these three tests take approximately less than one-half hour toadminister – provided that these individuals have not suffered a traumaticbrain injury and/or cognitive impairment caused by other conditionsand/or chronic pain syndromes and/or emotionally traumatic experiencesand/or on medication(s) prior to/at the time of/or after the traumaticevent that is the subject of litigation.
5B.In addition to the above, I administer four or five standard, computerscored, psychological test instruments: the Validity Indicator Profile, theMinnesota Multiphasic Personality Inventory-2, the Millon Clinical MultiaxialInventory-III, and the Career Assessment Inventory (the Vocational and/orEnhanced Versions).These tests independently generate diagnostic data and formulations. Iuse them to help validate the accuracy of our own clinical impressions butthey are not a diagnostic substitute for same. Although there is a little bitof flexibility regarding test ranges and time expected to take these tests, ingeneral the following apply to these tests:1.The Validity Indicator Profile, which has both vocabulary and nonverbal puzzle solving parts is valid from ages 18-69.In the absence of clinically significant traumatic brain injury and/orcognitive impairment caused by other conditions and/or chronicpain syndromes and/or emotionally traumatic experiences and/oron medication(s) prior to/at the time/or after the traumatic eventthat is the subject of litigation this test takes about an hour tocomplete but up to twice that time when either or both of thoseconditions exist.2.3.The Minnesota Multiphasic Personality Inventory is deemed valid forthose taking it between the ages of 18 and up provided the personhas a 5th grade reading level or greater.a.Again in the absence of clinically significant traumatic braininjury and/or cognitive impairment caused by otherconditions and/or chronicpainsyndromesand/oremotionally traumatic experiences and/or on medication(s)prior to/at the time/or after the traumatic event that is thesubject of litigation between one hour or one hour a halfcomplete these 567 questions.b.Adolescents and young adults also can take the adolescentversion of this test, which is shorter (478 items) and deemedvalid for those between the ages of 13-18.The Millon Clinical Multiaxial Inventory-III generally is deemed valid forthose taking it between the ages of 18 and up provided they have areading level of at least 8th grade.a.This 175 item true-false test generally takes examinees about fortyfive minutes to complete – but again longer in individuals who havesuffered from a traumatic brain injury and/or cognitive impairment
6and/or chronic pain syndromes and/or emotionally traumaticexperiences and/or on medication(s) prior to/at the time of/or afterthe traumatic event that is the subject of litigation.4.b.There is an adolescent version of this test, the Millon AdolescentClinical Inventory, which is 160 items and is valid for those taking itbetween the ages of 13-19.c.This test generally takes between a half hour and forty-five minutesin those not suffering from any cognitive impairment or brain injury.d.Note that this test takes longer to complete in individuals who havesuffered a traumatic brain injury and/or cognitive impairmentcaused by other conditions and/or chronic pain syndromes and/oremotionally traumatic experiences and/or on medication(s) priorto/at the time of/or after the traumatic event that is the subject oflitigation).There are two versions of the Career Assessment Inventory.a.The vocational version which consists of 305 questions is designed forthose who have a high school education or less and describesinterests and not abilities related to jobs, abilities, and schoolsubjects.b.The enhanced version of this test consists of 370 questions and also isdivided up into whether a person would like or dislike certainactivities, school subjects and careers regardless of their presentability to pursue same.c.As I have found these tests to be most accurate and useful whenpeople respond with an instant “gut” feeling, the typical examineewho does not suffer one of the complicating conditions listed abovetakes about fifteen minutes to perform the vocational test andabout twenty minutes to perform the enhanced test.d.On occasion, when a person is in college it has been useful toprovide both tests and compare the answers.e.Note further that it is my consistent experience that vocationalrehabilitation agencies invariably have found these tests helpful inproviding guidance to those seeking their services.This information hopefully will answer any questions as well as reassure attorneys on“both sides” that the length of this examination is as long as it is to be able to give a fairassessment of examinees without them feeling rushed, with them having sufficient time
7to rest if their injuries require same, to minimize fatigue, and overall to generate themost co
C. Emerging Frontiers of Neuroscience (15 minutes): 1. Brain injury biomarkers: uses and limitations . 2. The critical importance of early intervention and the downside of being “a penny late and a dollar short” 3. Medication interactions and nonspecific presentations .
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Brain injury can be called by different names, like concussion, shaken baby syndrome, and head injury. The brain can be hurt in many different ways; injuries to the brain are typically classified as non-traumatic or traumatic. Non-Traumatic injuries occur as a result of something internal to the brain like stroke, lack of oxygen, infection .
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What Everyone Should Know About Brain Injury.” Missouri Head Injury Guide for “ People Interested in Traumatic Brain Injury. 2001. Missouri Head Injury Advisory Council and Missouri Department of Health. Traumatic Brain Injury-Related Hospital Discharges, Results from a 14 State Surveillance “ System, 1997.”
Traumatic Brain Injury A traumatic brain injury (TBI) is caused by a bump, blow, jolt or penetration to the head disrupting the normal function of the brain.1 When one or more of the following clinical signs is observed, it constitutes an alteration in brain function: a) any period of loss of, or decreased, consciousness; b) any loss of
