Firstly, I will prefix this post by saying that I am not a doctor. I am a lawyer and will be speaking purely from the legal perspective of what a “mild traumatic brain injury” (“MTBI”) has become. I do, however, have bachelor’s degree in biology, which gives me some background on the scientific process.
There has been considerable disagreement in the courts about what a MTBI actually is. Much of this confusion rises from the challenge of taking scientific concepts, which focus on scientific process and competing theories, and adapting them to the legal process, which focuses on proving facts. In other words, a judge is expected to make a definitive decision based on testimony from doctors and scientists, who may be basing their opinion on multiple competing theories.
There has been significant disagreement about what a MTBI actually is but courts in British Columbia have adopted definitions of MTBI from various leading medical authorities, including the Mild Traumatic Brain Injury Committee of the Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine:
“A patient with mild traumatic brain injury is a person who has had a traumatically induced physiological disruption of brain function, as manifested by at least one of the following:
- any period of loss of consciousness;
- any loss of memory for events immediately before or after the accident;
- any alteration in mental state at the time of the accident (eg, feeling dazed, disoriented, or confused); and
- focal neurological deficit(s) that may or may not be transient;
but where the severity of the injury does not exceed the following:
- loss of consciousness of approximately 30 minutes or less;
- after 30 minutes, an initial Glasgow Coma Scale (GCS) of 13-15; and
- osttraumatic amnesia (PTA) not greater than 24 hours.”
http://www.canlii.org/en/bc/bcsc/doc/2007/2007bcsc671/2007bcsc671.pdf
http://www.canlii.org/en/bc/bcsc/doc/2002/2002bcsc1065/2002bcsc1065.pdf
However, these same cases stand at odds with the Brain Injury Association of America (“BIAA”) as they do not properly differentiate between concussions and MTBIs:
http://www.biausa.org/mild-brain-injury.htm
According the BIAA, MTBIs and concussion are both different types of brain injuries. Their definitions overlap, but they exist as two types of brain injuries along a spectrum, which goes from most mild to most severe injury: concussion, MTBI, moderate brain injury, and severe brain injury. Whereas the courts in the above noted cases referred to a concussion and a MTBI as the same thing or stated that a concussion was the cause of a MTBI.
This discussion could be just a matter of semantics as the courts have properly identified that, for the purposes of a legal perspective, the correct focus when discussing brain injuries should be on changes in behaviour and personality, and not what a MTBI actually is. Regardless of how the courts are defining brain injuries, the focus when determining a pain and suffering award for a personal injury has remained on the effect to the injured party. This is the correct approach. This approach explains many judgments, as this allows judge and lawyers to fit the scientific concepts somewhat neatly into legal framework and arguments, and the actual medical definition of the injured party’s injury is less crucial.
The above stated legal approach is going to be particularly appropriate where you are dealing with disputed and changing scientific concepts. As made clear by recent high profile and tragic cases involving recent NHL players Derek Boogaard, Rick Rypien, Bob Probert, and Wade Belak, the nature and long term effects of even minor head injuries are largely unknown.
http://www.tsn.ca/nhl/story/?id=383115
Although prevention is often the best principle, drivers are at the mercy of other drivers on the road, and even the most cautious driving on your part cannot prevent a motor vehicle accident with any certainty. Even in situations where the head has not been struck a concussion or MTBI can occur if the brain is shook within the skull. As always, I recommend that all injured parties seek proper and immediate medical assistance.
The above stated legal approach is going to be particularly appropriate where you are dealing with disputed and changing scientific concepts. As made clear by recent high profile and tragic cases involving recent NHL players Derek Boogaard, Rick Rypien, Bob Probert, and Wade Belak, the nature and long term effects of even minor head injuries are unknown.
http://www.tsn.ca/nhl/story/?id=383115
Although prevention is often the best principle, drivers are at the mercy of other drivers on the road, and even the most cautious driving on your part cannot prevent a motor vehicle accident with any certainty. Even in situations where the head has not been struck a concussion or MTBI can occur if the brain is shook within the skull. As always, I recommend that all injured parties seek proper and immediate medical assistance.
