There are over 1 million mild traumatic brain injuries (MTBI) in the United States today, accounting for 85% of all traumatic brain injuries (Bazarian et al, 2005)1. MTBI injury was formerly referred to as concussion (Ruff et al, 2009)2, a diffuse disorder of brain cells generated by traumatic shock, but short of discernible permanent structural injury. MTBI is the most common diagnosis for referral to a neuropsychologist due to personal injury (Ruff and Richardson, 1999; Sweet and Meyers, 2012)3. Researchers have had many years to study MTBI, enabling a clearer picture regarding definitional and research design problems (Larrabee, G, 2005)4.
Post-concussion syndrome – a mixed neurological/psychological disorder
This syndrome is one of several that stand on the border between neurological (organic) and psychological. It begins with a head injury from which the patient seemingly makes recovery but then continues as a psychological condition long after any visible indices of brain damage have resolved (Lishman, W A, 1973).5 He noted that post-concussion syndrome (PCS) represents the most frequent psychological sequelae of head injury by pointing out that the longer psychological symptoms persist, the less likely they are an expression of actual brain damage. And as Symonds said almost three-quarters of a century ago, "It is not only the kind of injury that matters but the kind of head." (Symonds, C P, 1937)6.
Psychological reactions are an all-too-common consequence of PCS. Few physical injuries fail to be compounded by some additional degree of psychological response. Approximately one-third of all people requiring medical attention following an accident (and particularly the kinds of accidents likely to eventuate in litigation) are found to also suffer a significant adverse psychological response (O'Donnel, M L et al, 2004)7.
While a posttraumatic psychological reaction may occur in someone who previously had not the slightest psychological difficulty, it is far more likely in the emotionally-predisposed individuals, whose pre-trauma personality is characterised by such elements as compensatory drive, perfectionism, self-reliance, overachievement, and a preoccupation with control issues. (Fann and Sussex, 1976)8. For example, if the patient was to collapse psychologically following a modest concussion from which apparently good objective recovery was made, there were likely significant psychological problems prior to the concussion, the trauma merely providing a focal point around which such difficulties might coalesce and become manifestly symptomatic.
It is the patient's preexisting disequilibrium that plays a far larger role than the actual concussion in creating neuropsychological symptoms that follow the index trauma, the event serving more as a vehicle for rendering previous emotional and psychological problems into physical form. The plaintiff’s attorney would argue most reasonably that the patient had some problems but no manifest symptoms prior to injury and such problems the patient possessed merely predisposed them to the disability which followed. It falls to the defence to demonstrate that an illness need not be visibly symptomatic to be present, just as a cancer may be present and even incurable long before the patient develops a palpable lump or persistent cough, and that the patient was not merely predisposed or vulnerable prior to injury, but psychologically impaired (i.e. psychological disequilibrium) long before the allegedly precipitant event.
When symptoms of a concussion persist beyond expectation they are frequently described as post-concussion syndrome (PCS; Gunstad and Suhr, 2004)9. Hence, PCS is defined as a form of physical, psychological and cognitive impairment characterised by memory and other cognitive deficits, headache, dizziness, fatigue, apathy, difficulty concentrating, personality change, emotional ability, irritability, depression and anxiety (Alexander, M P, 1995)10. Here, the patient's predisposition as noted above is just as important as the traumatic impact, as different individuals will react in markedly disparate ways to what appears to be objectively the same degree of injury. Older people and people at a clinical juncture in life are particularly vulnerable. Socioeconomic status can also be a determinative factor: A janitor may continue to perform their duties acceptably despite a modest degree of brain injury that would retire a PhD. In short, what may matter is not only the degree of concussion, but the number of degrees the concussion patient holds.
To date, there are three conceptual positions of concussion, presently termed mild traumatic brain injury (MTBI). The first is that there is a relatively small percentage of MTBI patients that experience lasting problems for physical (i.e. neurological verifiable) reasons (Ruff, Iverson, Barth, Bush, & Broschek, 2009)11. The second position is that the residual problems arising from MTBI are more psychological (i.e., medically unverifiable, non-neurological) (Uzzell, 1999)12. The final position is that of Larrabee (1999) and Binder (1997)13 , who deny residual problems until further scientific investigations are conducted.
Hence, the purpose of this article is intended to provide attorneys with an updated perspective on the PCS diagnosis, and even consider its definitional dismissal from clinical and forensic use.
Traumatic brain injury consists of four categories of severity: mild, complicated-mild, moderate, and severe. MTBIs are defined by any alteration in mental status (e.g. feeling "dazed"), loss of consciousness of 30 minutes or less, post injury memory loss (posttraumatic amnesia) of 24 hours or less, and a Glasgow Coma Scale (GCS) score (an index of brain responsiveness) of 13 or higher. Complicated-mild traumatic brain injuries are MTBIs plus intracranial (i.e., inside the skull) bleeding, typically found in the emergency room brain CT or MRI. Moderate and Severe traumatic brain injuries require progressively more severe injury characteristics with intracranial bleeding and low GCS scores, 9-12 and 3-8 respectively.
There are many MTBI definitions, but the most widely used is from the American Congress of Rehabilitation Medicine (ACRM; Anderson-Barnes, Weeks, and Tsao, 2010)14 , making it useful in forensic cases. However, no mention is made in this definition about intracranial bleeding, which is the hallmark of a complicated-mild traumatic brain injury. Therefore, it is important to emphasise that any definition of MTBI should exclude bleeding inside the skull, thereby differentiating between MTBIs and complicated-mild traumatic brain injuries. At present, brain injury severity is not characterized this way i.e., all intracranial bleeding associated with MTBI is viewed equally. Since research is differentiating between MTBIs and complicated-mild traumatic brain injuries it is incumbent upon not only clinicians but also attorneys to make this distinction in their medical-legal cases.
The purpose of this article is intended to provide attorneys with an updated perspective on the PCS diagnosis, and even consider its definitional dismissal from clinical and forensic use.
The Problems With the Post-Concussion Syndrome Diagnosis
According to the International Classification of Diseases, 10th Revision, Clinical Modification (ICD-10-CM; Goodheart, 2014)15; there is a diagnostic category called PCS. It is applied for those who succumb to a concussion followed by the triage of physical, psychological and cognitive symptoms that extend beyond the immediate/acute time period after the injury. For a professional to employ this diagnosis the following criteria are required: There are organic (physical) and psychogenic (psychological) disturbances observed after closed head injury. There are problems with this diagnosis. To begin with, the definition of "organic" is unclear, plus it is an obsolete non-specific term referring to syndromes arising from brain disease (Loring and Meador, 1999)21. Neuropsychologists can measure deficits in cognitive functioning but establishing a relationship between the deficits and their source of brain disease (i.e. organicity) is extremely difficult unless there is unequivocal evidence of brain damage found in neuroradiological studies of patients who have suffered strokes, complicated-mild traumatic brain injuries, or moderate/severe brain injuries.
Because the PCS is attributed to concussions, as opposed to significant brain damage, current brain scanning techniques are not sensitive to so-called organicity. Thus, trying to determine whether an abnormal brain scan is causally related to a concussion and/or cognitive deficits is compromised since many patients without concussions or cognitive deficits have abnormal brain scans (Evans, 2017)22. There are also patients with normal scans that have significant cognitive deficits measured by neuropsychological tests (Decobert, 2005)23. Finally, there are cases where normal CT and normal cognitive functioning exists who have had concussions (Hughes et al, 2004)24. Collectively, this undermines confidence in a reliable metric between distal concussion history and "organic disturbances" measured by brain scanning, at any time, or neuropsychological testing extended beyond the immediate/acute phase following the concussion. PCS includes subjective physical complaints (headaches, dizziness), psychological (emotional and behavioral changes) and cognitive changes. These disturbances can be chronic, permanent or late-emerging.
Unfortunately, the diagnosis additionally does not take into account potential fabricating (malingering) or magnification of reporting collectively in the service of achieving a specific goal (Rogers and Bender, 2013)16. Thus, the PCS diagnosis made without empirical evidence (neuropsychological examination) to support valid patient complaints will introduce questionable clinical data (Larrabee, 2012)17. The literature is replete with studies of intentional deceptive reporting gained through unstructured clinical judgment and validity tests revealing high rates of invalid neuropsychological information: 38.5% (Larrabee, 2003)19, 58% (Armistead-Jehle, 2010)18, and 30% (Young, 2015)20 are just some examples.
Finally, physical, psychological, and cognitive symptoms are not specific to concussion (Larrabee, 2012)25 ,and if they are, they must occur more often among these patients than among those without the diagnosis (Faust and Ahern, 2012)26. To rephrase, there is an associative correlation made by the patient between their symptoms and their concussion whereby these symptoms are misattributed to the index trauma. Without all the facts-frequency of the symptoms when the disorder is present and when it is not present, the determination cannot be made. This is known as analysis of covariation (Faust and Ahern, 2012)27. This expands the source for PCS into alternative differential considerations, besides mitigating defence exposure when responsible for causation.
Alternative Causes Manifesting as Post-Concussion Syndrome
Before accepting the concussion and post-concussion diagnoses at face value, the following are potential sources that can account for ongoing symptoms: posttraumatic stress disorder (Flynn, 2010)28, orthopedic injuries (Mickeviciene et al, 2004)29, whiplash (Sullivan et al, 2002)30, chronic pain (Iverson and McCracken, 1997)31, outpatient treatment due to psychological problems (Fox et al, 1995)32, pre-injury personality disorders (Hibbard et al, 2000)33, anxiety (Meares et al, 2011)34, depression (Basso et al, 2013)35, the manner in which symptoms are elicited from the patient (Iverson et al, 2010)36, and finally litigation (Lees-Haley & Brown, 1993)37.
How Common Is the Post-Concussion Syndrome?
The rate at which a diagnosis occurs is known as the base rate, and in turn, it determines the likelihood of a clinician correctly diagnosing the condition. The base rate for PCS is not known with certainty because not all patients who incur a concussion report it to doctors (Sosin et al, 1996)38. Many researchers have concluded different base rates and I shall only reference the leaders since there are too many to list. McCrea (2008)39 reported a base rate for PCS of 1 to 5%. Larrabee (2005)40 concluded a single uncomplicated mild traumatic brain injury with neuropsychological deficits persisting for up to three months, but the norm is full recovery, with no long-term residual deficits. There is increasing evidence that questions the validity of the PCS symptom constellation. To qualify as a syndrome, a condition must demonstrate a set of specifically associated symptoms broadly present in persons who have the condition and absent those who do not have it.
There is increasing evidence that questions the validity of the PCS symptom constellation.
In summary, current research has definitively demonstrated that a patient with an MTBI has no long-term cognitive or psychological deficits. This is supported by the Committee on Traumatic Brain Injury Board on Health Care Services (Institute of Medicine, 2006)41, the American Medical Association (Giza et al., 2013)42, and 6 meta-analyses representing hundreds of studies (Rohling et al, 2017)43.
If Not Post-Concussion Syndrome, What Is the Diagnosis?
PCS is a condition in search of a specific cause. Adjustment disorder, posttraumatic reaction or post-accident syndrome/post-injury syndrome (Bush & Myers, 2013)44 are more appropriate diagnoses since they include the amalgam of physical, psychological and cognitive symptoms secondary to accidents that include concussion. Until PCS can be casually related to concussion in a reliable way, it is more appropriate for clinicians to not diagnose PCS – particularly those working in a legal setting – and alternatively consider the aforementioned conditions underscoring the persistent symptoms.
Strategic Considerations: Defence of Post-Concussion Syndrome Claims
When preparing for the defense of PCS cases, I believe they should be divided into two groups:
- Those in which the PCS diagnosis or the plaintiff's theory of causation is plainly wrong, and:
- Those in which the plaintiff is substantially correct – neuropsychological damages, largely the result of defendant’s actions, are present – but there exists another side to the story, complexities the plaintiff glosses over; in short, mitigating data important to the defence and to which the trier of fact is entitled. When the defendant's actions do indeed result in the PCS, of course, the ethical defendant does not simply deny the plaintiff's claims. However, pre-injury conditions considered earlier in this article would reasonably limit the defense exposure to just that proportionate to damages caused by the defendant.
Defence of the PCS is found in one or more of three areas:
- The index trauma was neither one a reasonable person would experience as traumatic nor likely to trigger a disabling PCS. The defence should be alert to situations in which the plaintiff has actually fully recovered from a painful injury and the persistent cognitive changes attributed to defendant's actions now instead result from displacement and misattribution from other concurrent but unrelated situations (Yochelson, 1975)45.
- The principal injury, though authentic and demonstrable, is clinically trivial. There is good evidence for an inverse dose-response effect in litigated neurological injury: The more minor the neurological injury, the greater the likelihood of response distortion (Green, Iverson, & Allen, 1999)46.
- The symptoms and condition of which the claimant complains were preexisting. If the claimant's PCS symptoms are disproportionate to the alleged trauma, a clinical inquiry will reveal the claimant had long suffered disabling cognitive and psychological symptoms now being laid in their entirety at the feet of the trauma. In fact, the more severe the reaction the more likely the claimant had been struggling for years with that for which he/she now seeks compensation. Thus, the claimant's PCS reflects less an acute, secondary neuropsychological injury than a longstanding personality disorder referenced earlier in terms of preexisting psychological disequilibrium.
Essential Factors in the Assessment of the Post-Concussion Syndrome Claimant
Neuropsychological examination (NPE) is especially useful in PCS and brain injury cases (Sica, 2017)47. The NPE enable cognitive and psychological determinations to be made. The appropriate approach to this diagnosis relies on a multi-method convergent means of data gathering. Three recommended overlapping methods of NPE are: review of outside records (e.g. CT, MRI, depositions) and consultation with observation and neuropsychological, forensic, and psychological test scores (Lally, 2003)24. Lally refers to these three evidentiary sources as the "tripod" on which neuropsychological testimony rests, and further argues that this approach places a neuropsychologist at an advantage over other mental health professionals. This is particularly elaborated upon by Sica (2020) in terms of the unique position of neuropsychology in the clinical and legal setting.
Conclusions
Presently, research has brought us to the point where distinctions between MTBIs, complicated-mild TBIs, moderate TBIs and severe TBIs can be made. Attorneys and clinicians involved with concussions (MTBI) and PCS need to know the definitional distinctions and that it is impeachable for reasons discussed in the body of this article. Also, the fact that research indicates the base rate for PCS is extremely low, and thus, legal challenges can justifiably be raised when this questionable diagnosis is made with reasonable medical certainty.
The definitional evolution of traumatic brain has come a long way, providing clarity regarding the PCS diagnosis and thereby providing the fact finder a just legal outcome. May this article be the requiem for the PCS diagnosis. I rest my case.
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Dr Robert B Sica, PhD, ABN, FACPN
Board-Certified In Neuropsychology # 84, #255
Director, Principal, Neuropsychological Rehabilitation Services | LifeSpan
Fellowship Residency Supervisor
Jersey Shore University Medical Center, Neuroscience Division
Clinical Assistant Professor, Rutgers-Robert Wood Johnson Medical School
Clinical Assistant Professor, Seton Hall - Hackensack Meridian School of Medicine
NRS|LS
Address: 2100 Route 33, Suite 9-10, Neptune, NJ 07753
Telephone: (732) 988 3441
Fax: (732) 988 7123
Email: rsica18@hotmail.com
Neuropsychology Rehabilitation Services – LifeSpan (NRS|LS) was founded in the late 1970s. It is a joint practice consisting of a neuropsychological rehabilitation program, a multi-specialty health psychology program and a behavioural health program treating a variety of mental health conditions. The practice also treats the full spectrum of brain conditions, including but not limited to concussion, traumatic brain injuries, cerebrovascular accidents, brain tumours, dementia and learning disabilities. Finally, the practice is involved with pharmaceutical clinical trials for children and adults. NRS|LS is affiliated with Hackensack Meridian Health, Jersey Shore University Medical Center Neuroscience Division, and is staffed by licensed neuropsychologists and other healthcare experts.
Dr Robert B Sica is the originator, principal and director of NRS|LS and has lectured and published in neuropsychology and forensic neuropsychology, drawing upon over 40 years of clinical experience in private practice, hospital, academia, and law. He was the first clinical neuropsychologist on staff at Jersey Shore University Medical Center, Neuroscience Division, and Riverview Medical Center, both hospitals part of Hackensack Meridian Health, where he treats patients along with academic responsibilities teaching medical students and neuropsychological fellows. He is a clinical assistant professor at both Rutgers-Robert Wood Johnson Medical School and Seton Hall – Hackensack Meridian School of Medicine. Finally, he was a managing partner in the development of the Jersey Shore University Medical Arts Center building, a joint venture between staff physicians and the hospital. He holds a PhD in psychology and was a key leader in the 1970s brain injury rehabilitation movement.
