The NFL now has a medical professional at all games whose sole job is to watch the game for potential concussion victims. A side effect of this increased awareness is that juries are now better informed on those dangers and are more willing to award real money to a plaintiff who can show a traumatic brain injury.

Determining injury severity

Brain injuries run the gamut from mild to severe. The level of brain injury is defined by a score on the Glasgow Coma Scale (GCS). Mild brain injury is defined as a brain injury with a GCS of 13 to 15. Moderate brain injury is defined as a brain injury resulting in a loss of consciousness from 20 minutes to six hours, and a GCS of nine to 12. Severe brain injury is defined as a brain injury resulting in a loss of consciousness of greater than six hours and a GCS of three to eight.

When defending such a claim, it's important to know the differences and where the plaintiff's claim falls on this scale. The Glasgow Coma Scale score can usually be found in either the ambulance report or an emergency room report. A concussion is defined as a mild traumatic brain injury.

If the GCS is in the moderate or severe range, then there is a legitimate brain injury and the best way to handle those claims is to focus on damage control because there will be a strong likelihood of long-term consequences.

Related: Backyard danger! Swings, slides & other play things pose risk, safety concerns

It's also important to look for a CT scan or brain MRI. When defending a brain injury claim, look for any signs of internal bleeding. The CT scan will note if there any changes in the midline shift or collections of fluid.

An MRI can detect injuries to the white matter of the brain through the use of a diffusion tensor imaging (DTI) technique. Smart plaintiffs will likely start having this type of MRI done in hopes of finding damage which is harder to see in a traditional MRI.

Coaches and physicians are being more cautious when players suffer mild traumatic brain injuries because of the long-term effects. (Photo: Shutterstock)

Concussion injuries

Concussions can occur if the brain moves too rapidly inside the skull. Car accidents, contact sports, violent encounters or falls can all cause a concussion. By pointing out that a concussion is a mild traumatic brain injury, it lessens the impact.

For 50% of people, post-concussion symptoms go away within a few days to several weeks after the original injury occurs. In others, symptoms may remain for three to six months, but evidence indicates that many cases are completely resolved within six months.

The majority of symptoms are largely gone in about half of the people with a concussion one month after the injury, and about two-thirds of people with minor head trauma are nearly symptom-free within three months. If symptoms are not resolved by one year, they are likely to be permanent, though improvements may occur after even two or three years, or may suddenly occur after a long time without much improvement.

The symptoms of post-concussion syndrome include:

• Temporary loss of consciousness.

• Confusion.

• Headaches.

• Dizziness.

• Fatigue.

• Sleep problems.

• Lack of energy.

• Vomiting.

• Nausea.

• Delayed responsiveness.

• Amnesia regarding the injury.

• Slurred speech.

• Looking dazed.

Physicians and attorneys must consider multiple symptoms to determine whether or not a patient has suffered a permanent brain injury. (Photo: Shutterstock)

Defending concussion claims

For purposes of defending these claims, it is easy for plaintiffs to argue that they have suffered a permanent brain injury if they are not healed within one year, since most concussions heal within this timeframe.

Frequently, they use neuropsychological testing to support this argument. Such testing is the standard to determine cognitive impairments and there is a built-in mechanism to such testing for malingering and exaggeration of symptoms.

Obviously, to counter the neuropsychological testing of the plaintiff, the defendant must retain its own expert. However, it can be even more effective to be able to argue that the symptoms are related to a different condition. In particular, a condition which one can recover from as opposed to a permanent brain injury.

Depression has many of the same symptoms as post-concussion syndrome and is a common occurrence following a concussion. One of the main differences is that with proper treatment, juries believe that people can recover from depression, whereas they are less likely to believe that a plaintiff can recover from a brain injury that appears to be permanent because of symptoms lasting more than a year. This particular defense works because it is common for those who have a concussion to become depressed during the recovery.

The symptoms of a major depressive episode include:

• Feeling sad.

• Loss of interest or pleasure in usual activities.

• Feeling worthless.

• Changes in sleep or appetite.

• Difficulty concentrating.

• Lack of energy.

• Slowed speech.

• Headaches.

While the symptoms are not exactly the same, there is significant overlap, particularly the difficulty in concentrating, the altered speech and the lack of energy. In a study published in the Journal of Clinical Neuropsychology in 2005, nine out of 10 patients with depression met the liberal criteria for post-concussion syndrome even though they did not have a concussion. Using a conservative standard for post-concussion syndrome, five out of 10 patients in the sample still met that criteria.

Related: NFL $765 million concussion accord upheld by appeals court

As such, a good defense counsel can effectively argue for a misdiagnosis of a permanent brain injury when the plaintiff merely has a treatable depression. In a young plaintiff, this can significantly reduce the future damages. The key is to convince the jury that the continued medical issues of the plaintiff are treatable and not permanent. A diagnosis of depression can help diminish the value of concussion claims.

David A. Glazer, Esq. is a partner in the firm of Shafer Glazer, LLP. The firm's practice is focused on Insurance and Corporate Liability Defense. Shafer Glazer is the Your House Counsel Member Firm in downstate New York, New Jersey, and Connecticut. To contact the author or for more information, visit www.ShaferGlazer.com or www.YourHouseCounsel.com.