‘New' tests able to show what negative MRI, CT scans can't
By Noah Schaffer

Result is $3.3 million in brain-injury settlement

A decade ago, a plaintiff claiming a brain injury from a workplace accident would have been laughed out of court if his medical records showed negative MRI and CT scans.

But times have changed, as demonstrated by the recent $3.3 million settlement a man received after he allegedly suffered head trauma while working on a tunnel project.

Despite negative MRI and CT-scan readings, the plaintiff in the case was able to offer proof of his brain injury through Positron Emission Tomography and Quantitative Electroencephalograph tests — more commonly known as PET scans and QEEG, respectively.

According to plaintiffs' lawyers who handle brain-injury cases, the technology used in these tests has advanced to the point where they can often show more than the so-called standard tests for brain injuries.

PET scans and the QEEG "are tests that the medical community has come to consider equally valid when it comes to assessing trauma-induced brain injury," said Douglas K. Sheff of Boston, who, with his colleague Frank J. Federico, secured the $3.3 million settlement.

"The QEEG measures brain waves and finds if they are slow," explained Sheff . "The PET scan injects the subject with sugar water and radioactive dye. The dye lights up as the brains absorb sugar, so you can take a film of the brain and see if the cells are all absorbing at the same rate, [or if] you've got a problem."

Kenneth I. Kolpan, a Boston attorney who was not involved in Sheff 's case but has tried numerous head-injury cases, observed that PET scans and QEEG tests are gaining popularity even if the technology is still sometimes challenged by the defense under Daubert .

"Lawyers presenting a test like this can expect those challenges," Kolpan noted.

Without such a challenge in his case, however, Sheff said he credits the "newer" tests, along with inconsistencies in the defense's evidence, with his client's successful resolution.

(Due to the confidentiality agreement reached as part of the settlement, counsel for the defense declined to be interviewed or identified, according to Sheff .)

Tunnel-project mishap

The plaintiff was an African-American male in his mid-40s who was working for the general contractor on a water-supply-tunnel project. The plaintiff's job was to lower a large metal tube, or liner, into a shaft to reinforce the walls of the tunnel below.

The plaintiff said that while climbing a ladder in a dark area, his head was struck by a shackle on the crane's cable, knocking him 10 feet to the ground.

The plaintiff was taken to the hospital, where a CT scan of his head showed no abnormal activity. He was discharged the following day.

Shortly thereafter, the plaintiff began experiencing headaches. Three months after the incident, an MRI was taken that came back negative.

After continuing to complain of headaches, the plaintiff was sent to a rehabilitation hospital, where he was observed as hypersensitive to sound, forgetful and prone to difficulty with words and movements of his hands.

Despite these problems, the plaintiff continued to live alone, pay his mortgage and bills, and file for divorce representing himself pro se.

These factors, combined with his criminal history and an initial diagnosis that he was exaggerating his symptoms, diminished the plaintiff's chances of a successful claim, Sheff said, adding that the defense also planned to argue that the area in the tunnel had been well lit and that the plaintiff himself had been at fault.

Sheff said that not until the plaintiff was re-examined with PET scans and QEEG tests that the serious brain injuries could be diagnosed.

Below the radar

Although QEEG and PET scans cannot truly be termed "new" technology — PET scans have existed for decades — plaintiffs' attorneys are increasingly turning to them to prove injuries not shown by CT or MRI tests.

Calling it an "evolution," Kolpan said: "When we talked years ago about the MRI and CAT scans being negative, the reason that they may have been negative was the [more limited] sensitivity of the technology — the injury was happening below the radar screen."

Sheff noted that in his client's case, although the MRI and CT scans were normal, the PET scan showed that brain cells over the client's right frontal lobe had a slower absorption rate.

"When we talked to clinicians and family members, they said he can't organize anymore," said Sheff . "Well, that's the frontal lobe. You have to really live with the plaintiffs and know them and their families to put together the pieces of the puzzle that a true brain injury is."

But Kolpan said he does see the new technology driving more settlements toward higher-dollar amounts in brain-injury cases.

"Does it mean there are more or quicker settlements? No, it means that the exposure on the defense side may appear to be greater, so I think that there is even more battle and challenge to these cases," Kolpan said.

Inconsistencies

In addition to the QEEG and PET scans in his client's favor, Sheff said inconsistencies in the testimony that potential defense witnesses had given in the discovery phase of the case also proved to be key to the settlement.

For example, while the plaintiff claimed that a dangerously dark work area contributed to the accident, a manager on the site insisted that the area had been so bright it was "lit up like Fenway Park."

However, a report filed by the construction team for the date of the accident depicted the area as being "dark."

The plaintiff's legal team also tracked down a long-retired employee who had been referenced in another witness's deposition. The retiree was videotaped saying that he had been ordered by his manager to "forget about it ever being dark" and to "keep your mouth shut" about the accident.

A brief video clip of the retiree's deposition, along with footage of the plaintiff, medical evidence and excerpts from the documents related to the construction project were included in a presentation that the plaintiff's side made to the defense team during a one-day negotiation session that resulted in the settlement, Sheff said.

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Settlement Report

Type of action: Negligence & tort
Injuries alleged: Mild brain injury
Name of case: Withheld
Court/case no.: Withheld
Tried before judge or jury: N/A (settled)
Demand: $4.8 million
Amount of settlement: $3.3 million
Date: April 2007
Attorneys: Douglas K. Sheff and Frank J. Federico Jr., Sheff Law Offices, Boston (for the plaintiff)

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