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Potential Impact of Concussion Biomarker on Litigation

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In cases involving a concussion injury, issues of proof can often arise regarding the existence or severity of a concussion.  A recent study appears to have made a large leap in creating a reliable test to establish whether someone has a concussion (aka: a mild traumatic brain injury), making the link between wrongful conduct and injury more sustainable.

As the lead author, Nina Kraus, states in the study, for concussions, historically “the gold standard for diagnosis remains clinical determination by a physician who must weigh a constellation of symptoms across multiple organ systems.” [citation: https://www.nature.com/articles/srep39009].  The study, published in Scientific Reports (a part of the journal, Nature), is part of an effort to create a “reliable, objective, portable, user-friendly, readily available and affordable platform to diagnose [a] concussion.”  [citation: Inside View, Scientists Discover Concussion Biomarker, Centre for Neuro Skills, Issue 26.2, Spring 2017 (quoting lead author Nina Kraus)].

Using auditory stimuli, the researchers appear to have discovered a biological marker that indicates a concussion.  When exposed to particular speech frequencies, children with diagnosed concussions showed impaired neural responses.  However, the same group had similar responses to harmonic stimuli as non-concussed children.  [citation: https://www.nature.com/articles/srep39009].  Moreover, the concussed group not only showed improved responses as their concussion symptoms abated, but the severity of the concussion corresponded to the severity of the impairment.  [citation: https://www.nature.com/articles/srep39009].  Thus, impairment of this particular speech frequency signifies a concussion. The study identified a concussion with 90% accuracy and identified a non-concussed person with 95% accuracy.  [citation: https://www.nature.com/articles/srep39009].  Such accuracy provides a reliable test for evidentiary purposes.

This study has implications in cases where causation is an issue.  For example, in Lionel v. Lionel (2013) *2, WL 3981517 the appellant contested that respondent suffered a concussion (as a result of his conduct) because she did not exhibit “‘typical’ concussion symptoms.”  While the court ultimately found appellant’s arguments unpersuasive, the weight of a 90% accurate test may have prevented such a case to be appealed or to possibly be resolved before trial.

This study is possibly more significant regarding damages.  For example,  Ona v. Reachi (1951) 105 Cal.App.2d 758 was an appeal of an excessive damages award resulting from injuries, including a concussion, sustained in a car accident.  Each party presented conflicting expert testimony as to the extent of plaintiff’s injury, specifically its permanence, the primary issue being there was “no objective evidence of the concussion or its consequences.”  (emphasis added).  Armed with the reliable and purely objective test championed in the study, the plaintiff likely would have been able to definitively prove their damages.

Lead author Nina Kraus’ new biomarker concussion test will not only help those with sports-related concussions, as it was intended, but may also assist plaintiffs in proving their concussion injuries.

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