“No objective evidence of injury.”
The defense argument that there is “no objective evidence of injury” is so predictable in every brain injury case, it is a tactic I try to attack from all angles.
Imaging studies are not our only objective findings in medicine. We also accept the “footprint of pathology” signs as objective. When a person cannot see, even if we cannot pinpoint the cause of the blindness, this “footprint of pathology” tells us that there is damage. This is objective evidence. When a person cannot hear, likewise this “footprint of pathology” tells us that there is injury. When a neurological exam shows focal neurological deficits, this is a “footprint of pathology”.
Neuropsychological testing is essentially a “footprint of pathology” and as such is objective evidence of injury. Neuropsychological testing is designed to determine the brains current capacities. Then by comparing the pattern of these results, with the patients pre-morbid capabilities, and correlating these results with the nature of the trauma suffered by the patient, neuropsychologists can establish or confirm a diagnosis of brain injury.
There are other “footprints of pathology” we can use to further diffuse the no objective evidence of injury defense misdirection. If you can show some objective evidence that the brain or head was injured, the jury is far more likely to reject and hopefully reject with a vengeance, the malingering defense.
My first suggestion is to fully work up the brain stem/cranial nerve issues in a case. I believe that an abnormal Frenzel Goggle, ENG, rotary chair or posture platform test by a neurootologist, would be a terribly difficult finding for a defense attorney to attack. See http://vestibular-disorders.com for a discussion of traumatically caused balance, vertigo and dizziness problems.
Likewise, an injury to the brainstem and its cranial nerve connectors, can also result in damage to the autonomic nervous system, the part of the body that controls breathing, heart rate, blood pressure. One such posttraumatic injury involves an inability to regulate blood pressure, when the injured person is standing. This condition, postural orthostatic tachycardia syndrome will have very pronounced “footprints of pathology” including rapid increases in heart rate (tachycardia) when standing, overwhelming fatigue and vertigo.
When I handled primarily whiplash cases, I learned about another “footprint of pathology”, interestingly, a footprint of pain: an increase in blood pressure with pain. The nurse who taught me this one, told me to look at blood pressure readings in the emergency room, they often are very indicative of trauma.
I believe that these various pieces of objective evidence can provide us with a triangulation of pathology that will make the malingering defense ineffective.
Ultimately, it is a change in how the brain functions, that is important. An injury to the brain, without a change in function, may be trivial. But when the way in which the brain functions is changed, their will be a changed person. Those changes may be subtle, but when they result in disability, result in the breakdown of relationships, result in the loss of enjoyment of life and the result in depression, anger and sorrow, these are footprints of pathology that more clearly triangulate BRAIN DAMAGE, than the brightest clearer MRI or even the surgeons view of an intracranial hemorrhage.