Traumatic Brain Injury Misdiagnosis Claims Procedure

When a claimant is rushed to A & E after a fall, an accident at work or a road traffic collision for example and a TBI is suspected, they should, in most circumstances in accordance with the NICE guidelines, be referred for a CT scan and/or an MRI scan. The imaging will be reviewed by an attending neuro-radiologist and an initial diagnosis may then be provided.

Symptoms typically associated with a traumatic brain injury (“TBI”) can also have a psychological origin. For the purposes of a civil litigation claim, it can be important to determine whether a claimant has sustained an organic traumatic brain injury which may mean more permanent symptoms or, whether they have sustained a psychiatric injury, with the potential for some or full recovery with the appropriate and timely rehabilitation or whether both injury types are contributing to a claimant’s presentation.

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Why is diagnosing a TBI important?

It is important to identify TBI and the neuro-radiologist’s initial diagnosis will be the first port of call in most cases.

If a patient has been diagnosed with a TBI based upon abnormalities in the initial neuro-radiology imaging, there can be little doubt that the diagnosis of the TBI is correct. In the course of litigation, a neuro-radiology expert would perhaps only be instructed if there was doubt cast over the classification of the TBI or a dispute about the part of the brain which was impacted.

As serious injury solicitors, we use the legal claim to unlock funds to enable the Claimant to pay for private treatment. We will typically instruct a Case Manager who will then bring on board a multidisciplinary team of clinicians for the Claimant and ensure that the Claimant receives targeted rehabilitation as soon as possible with a focus on improving any functional deficits and problems.

We understand that receiving a diagnosis for a TBI can be extremely difficult and the claimant will need support and guidance in order to come to terms with their injury and what this means for their future. It is therefore important to us, that the Claimant receives the correct diagnosis as early as possible, so that appropriate rehabilitation goals are set up for them.

Classification of a TBI

The Mayo Classification System was introduced in 2007 and is commonly referred to when experts identify and classify head injuries in litigation. The system considers various indicators to enable a TBI to be diagnosed and classified. The three classifications are definite moderate-severe TBI, probable mTBI and possible TBI. The system classifies a brain injury as Moderate-Severe if one or more of the below indicators are present:

Death due to the brain injury;
Loss of consciousness;
Glasgow Coma Scale of less than 12 (out of 15);
Post-traumatic amnesia;
Presences of abnormalities on neuroradiology including haematoma, contusion, diffuse axonal injury and haemorrhaging.

As solicitors, we need to be satisfied that the Claimant has received the correct diagnosis and subsequent classification of their TBI, so that we can make appropriate arrangements for their rehabilitation and decide which experts will be suitable to instruct.

What to do then if a Claimant presents with symptoms consistent with traumatic brain injury but with clear scans?

As demonstrated by the Mayo Classification System above, moderate to severe TBI can still be considered to have occurred without the presence of abnormalities on imaging. In circumstances where the scans (CT or MRI) are clear, there is still a need to consider the Claimant’s presentation and the above factors.

Serious injury solicitors will be aware that not all traumatic brain injuries are evident on routine imaging as the focus is on severe bleeds and structural damage. The solicitor should review the Claimant’s indicators in tandem with their ongoing symptoms. If there is doubt in relation to the original diagnosis, the instruction of a neuro-radiologist can often be crucial in these cases with the claimant undergoing more sophisticated and sensitive imaging (SWI, QSM, DTI, DWI, PWI and MEG) which are better equipped to highlight subtle micro-bleeds indicative of diffuse axonal injury amongst other things. This would provide significant evidence of a TBI as being the cause of the Claimant’s functional problems, rather than a psychiatric and usually treatable condition.

If a moderate severe TBI is diagnosed following further investigation (as set out above), then again it will ensure that the rehabilitation has a suitable TBI component.

What happens if a Claimant has been given an incorrect diagnosis of moderate-severe TBI based on the radiological findings?

In a recent case, a Claimant was diagnosed with a diffuse axonal brain injury (DAI) following preliminary neuroradiology imaging in hospital. Based on this, the neurologist instructed by the Claimant’s solicitors confirmed a diagnosis of moderate-severe TBI.

However, doubts started to emerge on the interpretation of those initial scans. A neuro-radiologist was instructed and concluded that there was no evidence of a moderate-severe TBI on the initial imaging. The original interpretation was incorrect. Of course, the presence of a probable mild TBI could not be discounted here because of the circumstances and the Claimant’s presentation and this is the position the neurologist took.

As a result, neuropsychology and neuropsychiatry experts needed to revisit their original reports and provide updated opinions.

The Claimant and his family were initially told he had sustained a TBI and had come to terms with this diagnosis. The Claimant suffered with a negative perception of his abilities and the diagnosis had a big impact. A change of diagnosis can risk affecting trust in medical professionals. However here, the clinical team’s focus when discussing the new diagnosis with the Claimant was on the potential for recovery or a better recovery.

A simple error of interpretation caused the Court timetable to be pushed back but by doing so, we were of the view that the therapist would then have time to review their recommendations and ensure they were targeted.

Although such downgrading of the severity of a TBI is not that common (the upgrading is however unfortunately more common where scans are arranged at a relatively late stage for the first time), the validity of the radiology interpretation should be considered by Instructing Solicitors and instructed experts in all cases.

Recommendations

In cases where TBI has been suspected or diagnosed, we would recommend the following investigations are carried out: –

Carefully reviewing the records for signs of loss of consciousness or GCS scores.
Obtain all the records and specially the ambulance records.
Take an earlier statement about retrograde or post traumatic amnesia and the level of consciousness at the scene of the incident.
Take statements from family and friends to highlight any sort of changes in presentation, function and personality.
Likewise with employers because sometimes subtle issues come to the fore when trying to deal with stressors and the multiple demands of the workplace.
Liaise with the neurologist instructed or neuropsychologist or neuropsychiatrist and get a steer about whether or not a neuro-radiologist should be brought on board at the earliest opportunity.
Where is a need for further investigations then collaborate with the Defendant’s solicitors, it may be an area where a single joint expert may be appropriate in the field of radiology given that the scans are or at least should be capable of objective analysis and agreement.
In the event of clear scans, you need to determine what is contributing to the symptoms and if they are similar to those that can arise from a TBI, then we need to investigate further. Speak with the relevant experts and consider whether enhanced imaging should be carried out.

It is important that the above steps are considered. We need to question a presence or absence of diagnosis of TBI in all cases to ensure that suitable funds are obtained for the Claimant’s rehabilitation program which would then be appropriately targeting to the injuries sustained by the Claimant and again ensure that the claim is presented and pursued to maximise recovery.

Zoe Vallance of Irwin Mitchell

Zoe has been qualified as a solicitor for 4 years and has more than 7 years’ experience in dealing with personal injury claims.

Irwin Mitchell are a national law firm whose solicitors work hard to make things easier for their clients and their family. Over the past 2 years they have helped clients recover more than £1 billion in compensation, but this is only part of the story, their solicitors also help clients access the rehabilitation, medical care and support needed to achieve the best recovery possible.

How can Brain Injury Group help?

If you have been injured in an accident and would like a free, no-obligation chat with a specialist brain injury solicitor about the circumstances surrounding your accident, please email enquiries@braininjurygroup.co.uk, telephone 0330 311 2541 or visit our website to access live chat.

We are also able to offer free welfare benefit checkups to all affected by brain injury, to ensure you are receiving the right benefits for your individual circumstances.