Posted on May 21, 2008 · Posted in Brain Injury

I have always called it the Defense of Misdirection. This year, is an election year, and I have an easier term for people to understand: SPIN. Spin is what defense attorney’s do. They spin everything, ignoring the obvious and coming up with some type of misdirection to disregard the diagnosis of treating doctors. The goal is to shift blame from everyone but the defendant who actually caused the injury by his/her/its wrongful conduct.

The favorite spin of defense attorneys is to blame it on pre-injury (pre-morbid is the medical term, meaning previously to the injury “mordibity”) psychological problems. The Army now is using similar tactics. With insurance companies the motive is to build up the skepticism of the jury, to reduce the amount its insured is required to pay. With the Military, the motive is to find as many warm bodies as possible to send back into a combat zone, to keep the numbers up for the surge in Iraq. There might also be the motive to save billions in VA benefits, too.

An April 23, 2007 story in the Army Times details the way in which the Army is using so-called “personality disorders” and tactics typical of Defense lawyers to force soldiers to go back into combat, or deny them proper veterans medical and disability benefits. For the full story, click here:

The insurance industry propaganda machine is always trying to stir up sentiment about frivolous lawsuits. What actually happens in the Courtroom is dramatically different.

Defense attorneys learn how to spin any disability into something where they can raise jurors skepticism. Defense attorneys hire doctors who know what is expected of them. Ridiculous, psychosomatic diagnosis not found in the real medical world since Freud, are reinvented.
(The actual condition of Conversion disorder is so rare, that only left-over Freudian influence in the psychiatric profession, keeps it in the DSM-IV.) Pre-morbid personality disorders are found even though the person was considered well adjusted and productive before they got hurt. Any emotional counseling around life’s normal challenges such as divorce or marital difficulties is turned into evidence of deep seeded psychosis.

Jurors often see the Defense doctors as equally credible to the plaintiffs treating doctors, for reasons that are hard to fathom. As the plaintiff has the “burden of proof”, any doubts are resolved in favor of the Spin Doctors. Often the most credible evidence is that of friends and co-workers, who tell of how normal and productive the plaintiff was before. Defense lawyers try to spin this, and apparently, so does the military. The Army Times story linked above, tells of a soldier who was claimed to have a personality disorder, even though it didn’t show itself until he returned from Iraq.
Edward Kaspar said he served as Town’s lieutenant and was a witness to the incident in which a rocket exploded above Town’s head in Iraq, causing his brain injury.
“I was pretty shocked to hear about his problems now,” Kaspar said by e-mail. “This personality disorder thing just doesn’t make sense. I’m not a trained medical professional, but I can say that in the years he served as one of my soldiers, he definitely had it together. _ I relied on him to get the job done and he never failed me, both in peacetime and in war.”

Senators and Congressmen are calling for our wounded soldiers to get better treatment than this. While Bush and McCain are still fighting giving maximum benefits to Iraq Veterans, the political tide looks like by early next year, the laws will be improve. But changing the written rules won’t be enough. The culture of denial must be changed. Doctors, both civilian and military must start to believe that good, hard working people, are not malingers, just waiting for a chance for a free ride. People don’t choose the life of the disabled. They are disabled because their minds have been fundamentally changed by either trauma or extraordinary stress in a way, that has left them only a shadow of who they were. This is not a life of luxury, but a tragedy that deserves all of the assistance either our court system in the case of civilian injuries, or the VA system, in case of military injuries, can provide.

There can be no disagreement on this: forcing a soldier with a brain injury or PTSD to return to combat is unconscionable, not just because it is exposes that soldier to death and more disability, but because it exposes other soldiers to the same, because they will not be able to rely on that soldier.

About the Author

Attorney Gordon S. Johnson, Jr.
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice :: 800-992-9447