Mild brain injury cases are very complex.
This series of articles by BC brain injury lawyer Paul Mitchell, Q.C., will explain the Top 5 Myths About Mild Brain Injury.
Find out what is involved in these challenging and difficult cases, and separate fact from fiction.
Myth #5 You need to have a Loss of Consciousness to Have a Brain Injury
FACT
The diagnosis of a mild traumatic brain injury (MTBI) in fact does not require a loss of consciousness (LOC).
Many defence lawyers, insurance companies, and defence medical experts, are of the opinion that without a LOC, there can be no MTBI.
They are wrong.
A well respected definition of MTBI was published by the World Health Organization (WHO) Collaborative Center Task Force in 2004;
MTBI is an acute brain injury resulting from mechanical energy to the head from external forces. Operational criteria for clinical identification include:
(i) one or more of the following:
- confusion or disorientation,
- loss of consciousness for 30 minutes or less,
- post-traumatic amnesia for less than 24 hours,
- and/or other transient neurological abnormalities such as focal signs, seizure, and
- intracranial lesion not requiring surgery;
(ii) Glasgow Coma Scale score of 13-15 after 30 minutes post-injury or later upon presentation for healthcare.
Note that a loss of consciousness is not required. It is just one of the many criteria.
The American Congress of Rehabilitation Medicine (ACRM) also defines a MTBI as not requiring a LOC.
ACRM Definition
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
- posttraumatic amnesia (PTA) not greater than 24 hours.
Again, note that a loss of consciousness is not required.
The above definitions, and many other similar definitions, are recognized by leading neurologists, psychiatrists, physiatrists, and neuropsychologists worldwide.
The current understanding of the underlying pathology of MTBI involves a shift away from a focus on very obvious structural damage, and instead focuses on misroscopic neuronal and axonal damage , which can cause a complex cascade of chemical, metabolic, and physiologic events. These can result in clinical signs and symptoms of MTBI, such as poor memory, speed of processing, fatigue, and dizziness.
BC Courts have also ruled that LOC is not a prerequisite for a MTBI.
The British Columbia Supreme Court has ruled in numerous cases that LOC is not a prerequisite for a MTBI.
In Chen v. Ruersatt the court concluded that the plaintiff sustained a MTBI after no LOC, after being rear ended, and sustaining a whiplash.
After the accident, he lacked the physical or mental capacity to manage the family finances to maintain employment, to look after rental properties, or to participate in physical and recreational activities. The plaintiff claimed that he suffered from a mild head injury with symptoms including headaches, slowness in movement, and cognitive processes, reduced concentration, memory loss, difficulty with balance, vertigo, ringing in his ears, tremor in his right hand and a significant negative personality change (bad tempered and irritable).
The judge in that case found that the symptoms were consistent with a head injury, notwithstanding an absence of evidence of LOC:
In Reilly v. Lynn,[i] the British Columbia Court of Appeal affirmed the ACRM definition.
The Phineas Gage Example
The most famous example of a severe TBI with no LOC is the case of Phineas Gage. He sustained a severe frontal lobe injury while working with a railroad construction crew in 1848.
An explosive charge propelled an iron bar upward through the lower left side of his face with the point of the bar exiting the top of his skull after passing through the left frontal lobe.
Phineas Gage never lost consciousness.
He was reported to be sitting up and talking with the iron bar protruding from his left temporal and frontal lobes.
He made a miraculous physical recovery. But his personality and emotional behaviour changed significantly.
He became aggressive, impulsive, unreliable, and was incapable of working in any capacity.
Despite many court cases, and numerous medical papers and journals, some defence experts, and insurance companies, still refuse to accept that MTBI does not require a LOC.
It is one of the biggest myths of brain injury, and it is persistently perpetrated by the defence, and many of their experts.
In summary, it’s a myth that Mild Traumatic Brain Injury requires a Loss of Consciousness.
And that’s a fact.
Paul Mitchell, Q.C.is a BC personal injury lawyer who has extensive experience with brain injury claims.
He acts for the brain injured all over BC, and will not act for ICBC or any other insurance company.
Paul was a founding Director of BrainTrust Canada (Central Okanagan Brain Injury Society), and was on their board for over 25 years.
He has presented at numerous brain injury conferences, including the Okanagan Conference on Brain Injury, and the Pacific Coast Brain Injury Conference in Vancouver.
He is also the author of many articles and publications on brain injury.
For more information on brain injuries, or for a confidential discussion of your brain injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at [email protected]
