Has Your Plaintiffs’ Mild TBI Gone Undetected? What NFL Concussion Litigation means for PI


nfl concussion litigation

MDL No. 2323 – the NFL Players’ Concussion Litigation has reached settlement with a degree of controversy. The premise of liability and the extent to which the NFL owed its players a duty to warn amid now decades of private medical research, was likely one of the most difficult and publicized TBI litigations in recent years.  While the league is positioned to carry on ‘business as usual’ this season, it is disappointing not to see the claims of the former NFL players tested at trial with a jury.

The term “traumatic brain injury” (TBI) covers a wide range of severity.  Less obvious and more difficult to diagnose and prove are mild traumatic brain injuries (mTBI’s), characterized by short and mild interruptions of normal brain activity and no change to normal mental status after the injury – commonly called concussions.  An obvious risk to participants of the game of football and other contact sports, but sometimes a not so obvious a risk in personal injury cases.  Attorneys well versed in MVA litigation have made this consideration for years in their cases, but client intake for other case types should also look for signs of mTBI in clients.  Research dedicated to mTBI in the last decade has lead the medical community to increase concern for mTBI – improving both methods and technology for diagnosing mTBI that many juries may not be aware of.  While medical care and securing an expert witness for an mTBI case can be expensive, solutions for both attorneys and plaintiffs exist to make proving an mTBI claim more realistic.

mTBI and TBI Basics

mTBI often goes undiagnosed by ER doctors, so it is imperative to get a timely second opinion from a qualified expert if you suspect a client may have suffered a mTBI.  Not the easiest task if a client is received many days after the injury, but if documented quickly enough, could be crucial in building a client’s case.  .  Common mTBI symptoms include loss of consciousness, temporary confusion or disorientation, and brief memory loss.  More common symptoms, like headaches, fatigue, dizziness, and lack of concentration can bolster a mTBI claim if there was also altered consciousness.  Severe traumatic brain injuries are often more obvious, with clear symptoms traditionally associated with brain injury such as severely reduced mental ability or dementia.  The master complaint for the NFL Players’ litigation sought to show that persons who sustain a mTBI, are up to four times more likely to sustain a second injury and exacerbate the first. The long term effects associated with brain injury include increased risks for depression, PTSD, dementia, recurrent headaches, reduced cognitive function and more. One recent medical study (de Beaumont, L.) even found patients to have symptoms 30 years after the initial injury and concluded that approximately 15% of patients who suffer even a single mTBI could have longstanding health consequences!

Any impact to the head can cause a TBI, but impacts to other parts of the body that cause sudden acceleration or deceleration of the head can cause Mild TBI’s.  There are also cases where TBI was found due to an incorrect prescription that caused brain damage.  TBI’s can manifest themselves  in a number of symptoms including :

  • Recurring Headaches or Balance Problems
  • Lack of Concentration or Understanding
  • Sleep Disorder or Chronic Fatigue
  • Sensory Perceptions
  • Alteration of Temper, Mood, or Depression
  • Inability to Work, Read, or Organize Tasks
  • Questionable Judgment
  • Altered Social Interaction

The Potential Long-Term Effects of a Mild Brain Injury

Mild traumatic brain injuries (mTBI) don’t seem very serious in many cases.  After momentary unconsciousness or disorientation, people will often seem to recover after a short rest.  Even “mild” brain injuries can have effects that are not immediately apparent, and linger for months after the accident.  While the mechanisms, effects, and best treatments for mTBI are not completely understood, recent attention to the problem consistently brings new insights and hope for injured people.

Mild traumatic brain injury has been defined as a disruption of brain function with any of the four following manifestations.

  1. Any loss of consciousness  less than 30 minutes;
  2. Any loss of memory around the moment of trauma, and amnesia lasting less than 24 hours;
  3. Any alteration in mental state at the time of the accident;
  4. Focal neurological deficits

It is also important to know that mTBI does not require direct impact to the head.  Sudden, rapid movement can also cause mTBI when the brain moves within the skull, and researchers who study mTBI have found that mTBI can cause neurons to move within the brain, which disrupts their ability to transmit nerve impulses.

Contrary to the outward appearance of quick, complete recovery in many mTBI incidents, 10-20% of mTBI victims have symptoms of their brain injury for over a year after the incident, and research has shown evidence of brain atrophy up to a year after a single mTBI event.  In another study people tested a year after experiencing a mTBI performed worse than a control group in tests of cognitive ability. Some mTBI symptoms have been compared to the beginnings of Alzheimer’s disease, including sleep disruption, which can in turn affect many facets of brain function.

The injured person, friends, and family may fail to correctly attribute the effects of mTBI, because symptoms do not always develop immediately, and because many symptoms can be attributed to other causes.  Dizziness, headaches, sleep problems, fatigue, lack of concentration & attention, irritability, and emotional stress are all potential symptoms of mTBI that are easily ignored or attributed to other causes.  It is important for personal injury attorneys to be aware of the possibility of mTBI in many different kinds of cases, particularly car accidents, which are the second leading cause of TBI in the US, behind falls.

Informing the judge and jury of the facts and long-term effects of mTBI is equally important.  Advances in neurophysiology happen faster than most people can hope to keep up with, and many people have longstanding misconceptions about the nature, effects, and duration of mTBI’s.  Careful examination and cross-examination of experts will inform the fact-finder of the truth about mTBI and its effects on patients.

Proving a Mild Traumatic Brain Injury

Proving a traumatic brain injury (TBI) to a jury can be difficult, particularly with mild TBI (mTBI) when the symptoms and effects are not extreme, and the jury may be skeptical of an injury that is not readily apparent.

Updates and Advancements in Medical Diagnosis and Categorization: The Diagnostic and Statistical Manual of Mental Disorders (DSM) made significant updates and changes to its 5th edition published in May of 2013 to expand upon and include definitions for mild neurocognitive disorder.  The DSM is one of the most readily accepted manuals in both the legal and medical communities, and the inclusion of mTBI diagnosis and treatment is a major advantage in validated a mTBI claim for a client. More

Expanding the knowledge of the Jury: It is important to define TBI with the jury, and dispel misconceptions.  People can suffer TBI without losing consciousness and without a direct blow to the head due to the movement of the brain within the skull. More

Utilizing the Medical Care of the Plaintiff: Treating physicians are also important sources of information about an individual victim of TBI.  They can confirm the existence of certain disabilities and problems and can explain how brain injuries happen and affect functional ability. More

Getting to know the Technology for Diagnosis: A major difficulty of proving mTBI is the difficulty of obtaining a nice clear image of a physical problem in the brain.  mTBI is defined functionally, in terms of symptoms and effects, not in terms of the underlying physical and biological causes, so there is no guarantee that there will be any detectable physical cause.  Improvements in medical imaging technology make this less and less true every day.  Advanced imaging techniques can make the physical effects of mTBI’s in the brain easily visible in some cases, making them an invaluable asset to proving your client’s injuries in court.  Imaging tests currently available include:

Functional MRI (fMRI) More

Resting State functional MRI (RS-fMRI) More

Contrast MRI More

dMRI & Diffusion Tensor Imaging More

CT Scans More

Positron Emission Tomography More

Awards and Settlements for Brain Injury Cases

Recent award valuation studies have shown that if the legal team can successfully prove a claim of mTBI in a plaintiff, awards can range between $87K-$1.6M, with 34% of plaintiffs awarded over $1M. Awards for mTBI have been steadily increasing over the past decade, dovetailing the proliferation of medical research dedicated to mTBI. Reported settlements over the past decade have fallen within a range of $77K – $1.1M.

Non-economic damages are also very important for TBI victims.  Even where there is not significant pain and suffering from the accident, there may be significant loss of enjoyment of life in the future as a result of inability to enjoy or perform hobbies and other favorite activities, and generalized loss of enjoyment of life due to mental impairment. As in the case of the recent NFL litigation, the risk of symptom or condition development in the future should be explored with juries and experts.

Getting a client into an expert rehabilitation facility can be a watershed moment for a TBI case.  Facilities that specialize in TBI victims provide the best care and get your client the best outcomes by dramatically improving their functional ability and quality of life.  They can also get the best outcomes for your client’s case by providing detailed medical records by experts who can track the progress of your client and demonstrate the extent of injury and disability.  Assessments of reading, math, problem solving, and social skills can also form the basis for other experts to estimate the future earning potential and care needs for the plaintiff.

These facilities are expensive, and have limited spaces for patients. 


  • acrm.org/pdf/TBIDef_English_Oct2010.pdf
  • uphs.upenn.edu/news/News_Releases/2010/02/mild-traumatic-brain-injury/
  • sciencedaily.com/releases/2013/03/130312092642.htm
  • frontiersin.org/Human_Neuroscience/10.3389/fnhum.2013.00030/abstract
  • cdc.gov/traumaticbraininjury/pdf/tbi_blue_book_externalcause.pdf
  • rsna.org/timssnet/media/pressreleases/pr_target.cfm?ID=675
  • neurography.com/about-mr-neurography/84-diffusion-tensor-imaging-now-available
  • westchestermedicalcenter.com/neuroradiology-imaging
  • pro. psychcentral.com/2013/dsm-5-changes-neurocognitive-disorders/004418.html#
  • asha.org/uploadedFiles/June-2011-DSM-V-Development-Comments.pdf
  • ceams-carsm.ca/en/louis.html
  • psychiatry.org/dsm5
  • commons. pacificu.edu/cgi/viewcontent.cgi?article=1203&context=pa
  • jpml.uscourts.gov/sites/jpml/files/MDL-2323-Tag-Along_Transfer-07-12.pdf
  • medscape.com/viewarticle/553967
  • nflconcussionlitigation.com/wp-content/uploads/2012/01/NFL-Master-Complaint1.pdf
  • 2011 WL 5528456: Jury Verdict Research Series: Personal Injury Valuation Handbook: Basic Injury Values for Claims of Mild and Moderate Brain Injuries

Topics:  Litigation Funding, NFL, Traumatic Brain Injuries

Published In: Personal Injury Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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