20 Trial Lawyer • Fall 2022 ist in brain injury medicine. She has focused her practice on brain injury since 1990 and ran a brain injury rehabilitation center from 2000 until her retirement in 2021. She testified both as a treating doctor and medical expert, rendering opinions on injuries sustained in the collision, medical expenses, past and future, and disability. All her opinions were given with reasonable medical probability. And while those “magic words” are not necessary (Hudjohn, 200 Or App at 352-531), ensuring at the outset of any of the medical expert’s testimony that all their opinions are given with reasonable medical probability is good practice because it avoids any question during deliberation as to whether the claimant met their burden of proof on key issues in the case. Dr. Erb testified Smith sustained a mild traumatic brain injury with alterations in vision, cognition and balance as a result of the collision. She testified the collision was a “but for” cause of the mild TBI. The terms traumatic brain injury, mild traumatic brain injury, concussion, post-concussion disorder and mild neurocognitive disorder are among those most frequently used by medical providers to diagnose or describe the injury. Because they are used interchangeably, it can be difficult to understand what any one doctor means when using them. Traumatic brain injury (TBI) is an intracranial injury that occurs when an external force injures the brain. When clinically significant, the DSM 5 diagnoses are major neurocognitive disorder or mild neurocognitive disorder due to traumatic brain injury.2 The cognitive presentation and symptoms after a TBI can vary. Difficulties with complex attention, executive ability, learning and memory are common as well as slowing in speed of information processing and disturbances in social cognition. TBIs are also associated with affective changes (irritability, easy frustration, tension and anxiety, affective lability) personality changes (disinhibition, apathy, suspiciousness, aggression) and physical changes (headache, fatigue, sleep disorders, vertigo or dizziness, tinnitus, hyperacusis, photosensitivity, anosmia, reduced tolerance to psychotropic medications) Note that many of these symptoms are subjective and can be difficult to measure. And the results of testing designed to quantify manifestations of mild TBIs are subject to an interpretation by the defense that minimizes the impact. In some cases, the head injury is underappreciated by urgent care or ER care providers. In other cases, it is overshadowed by orthopedic injuries, which may confine or decrease the mobility of the injured person, making it more difficult to detect or appreciate. When either occurs, the doctor making the diagnosis needs to be ready to explain that the lack of activity contributed to the delayed diagnosis. In Smith’s case, the urgent care and primary care providers seen shortly after the collision identified the mildTBI but delayed recognition of the injury occurs in many cases. Dr. Erb opined that Smith sustained a mild TBI with alterations in vision, cognition and balance. Her opinion was based upon her evaluation of Smith nearly five months after the collision. It was also premised on the medical records documenting treatment between the collision and her first visit, demonstrating the importance of the urgent care and primary care treatment and early recognition of the TBI injury. She cited Smith striking his head on the pavement and pointed to his damaged helmet. She explained that loss of consciousness was not a prerequisite to the diagnosis, but that some level of altered mental status close in time to the collision was important. Smith testified he was dazed, but not knocked out. His wife, who arrived on the scene shortly Brain Injury Continued from p 19
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