Head injuries that appear to be mild or even trivial can often result in a persisting group of subjective complaints that has been called the post-concussive syndrome (PCS). The most common complaints include headache, concentration difficulty, forgetfulness and memory problems, dizziness, irritability, anxiety and depression. There is a long-standing debate regarding the etiology of these persisting symptoms. Some experts say the syndrome is physical, and others say the problem is psychological. Still others suggest an aspect of malingering is involved.

In evaluating, defending, and awarding compensation for these subjective disabling problems, several factors need to be considered. These important factors include the documentation of possible brain damage, the measurement of learning/memory problems, the identification of possible psychological symptoms, and an assessment of possible malingering. The following outline can be useful as a guide in constructing a defense in cases of post-concussive syndrome.

One index for detecting brain injury and estimating its severity is the period of post-traumatic amnesia, or PTA. PTA refers to the period of time during which the subject is unable to remember anything since the trauma. The longer the PTA, the more severe the brain injury. Length of PTA is typically obtained from reviewing the medical record. Although the lack of PTA does not always mean an absence of brain injury, it typically implies a very mild head injury with a good prognostic outcome.

It is always useful to evaluate brain damage through the objective evidence of neuropathological studies. CT scans and MRI tests can provide physical evidence of head injury. This objective evidence of injury then has to be matched, or correlated, with behavioral evidence of deficits in attention/concentration, learning and memory. Behavioral evidence can be obtained from neuropsychological testing and from the subject's history of complaints.

When CT/MRI tests do not provide physical evidence of brain injury, some experts might argue that the damage is microscopic, or too minute to be detected by physical tests. However, it is perfectly logical and acceptable to counter with the argument that "microscopic damage" would also result in only microscopic or undetectable changes in behavior, and not in major complaint or in any impairing group of persisting, disabling symptoms.

In cases where CT and MRI do not document head injury, neuropsychological testing is often used to "validate" complaints of brain damage. However, there are pitfalls in this methodology, since physical and psychological tests differ in important ways. CT/MRI are very objective. Images or pictures of the brain are obtained, but the subject does not influence the outcome of the test in any way. On the other hand, learning, memory, and personality testing are based on subject performance. The performance of a subject can be influenced by many factors.

Neuropsychological tests are measurements of behavior, usually focusing upon attention/concentration, learning, memory and other cognitive skills. However, these are not tests of brain damage. People with brain damage typically do poorly on neuropsychological tests. But people can perform poorly for reasons other than brain damage as well. The evaluation needs to consider these other reasons before concluding brain damage. Motivation is obviously one factor important to consider in cases of potential financial gain.

In this regard, neuropsychological tests are vulnerable to the effects of motivation. Therefore, any neuropsychologist or psychologist, for either the plaintiff or the defense, has to make some reasonable effort to evaluate motivational influences, including malingering. This can be done in several ways. A good report will comment on improbable symptoms and their lack of anatomical basis, as well as commenting on inconsistencies in neuropsychological test data, since certain patterns of inconsistency often reflect suspect motivation. Secondly, there are specific, brief tests of malingering that can easily be administered, and that a knowledgeable, board-certified neuropsychologist will likely employ to address the issue.

It is a good practice to use one of these tests, since the patient with genuine complaints has nothing to lose and since the test helps in understanding those symptoms. Finally, it is useful to obtain a personality inventory from the person. This inventory can help in the detection of malingering, as well as in identifying conditions such as anxiety, depression, and personality disorder. These conditions can effect Neuropsychological test results as well as the report of other subjective complaints.

The plaintiff is actually at a disadvantage because of the practical limits in assessing brain injury and associated complaints. The burden is to prove both a causal connection between an accident and a purported injury, and the nature and extent of that injury. Some research suggests that although post-concussive complaints may have an initial neurological basis, the persistence of these symptoms after six months is primarily due to psychological factors. For example, ratings of daily stress have been correlated with the intensity, frequency, and duration of complaints.

The simple incidence or occurrence of post-concussive symptoms in head injury groups does not really differ from the base-rate occurrence of these symptoms in normal control groups. An occasional headache, an occasional lapse in attention, forgetting something, and occasional irritability and nervousness affect most people some of the time. Stress and cognitive appraisal play a role in post-concussive complaints. The subject pays more attention to these complaints and becomes more sensitive to their occurrence after a head injury.

The person begins to attribute these minor complaints to the injury, assigning the complaints a more important meaning. Research data shows these symptoms can be minimized by educating subjects about what to expect after they sustain a mild or trivial head injury. Similarly, when these complaints do develop, research findings demonstrate that they can be treated effectively through a very specific type of cognitive-behavioral therapy. Therefore, symptoms of post-concussive syndrome need not persist or be disabling.

Litigation in cases of post-concussive syndrome is a time consuming and expensive process. The guidelines presented here will hopefully be useful in both presenting a plaintiff's position and in defending cases against unwarranted compensation.

References used for this guideline are available upon request. Dr. Koziol is also available for case consultation and expert witness testimony.

From more information please contact Dr. Koziol.

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